ASHINGTON, Nov. 18 — A special federal
appeals court ruled today that the Justice Department has
broad new powers under the antiterrorism bill enacted last
year to use wiretaps obtained for intelligence operations to
prosecute terrorists.
The immediate effect of the ruling by the three-member
panel is that criminal prosecutors may now take an active role
in deciding how to use wiretaps authorized by a special
intelligence court and should have greater access to
information obtained from them. For more than 20 years,
prosecutors have been prohibited from making decisions on
which intelligence wiretaps to apply for because the standards
of proof are widely believed to be lower than for regular
criminal wiretaps.
But the judges today said that the passage of the
legislation, the USA Patriot Act, ensured that there is no
wall between officials from the intelligence and criminal arms
of the Justice Department. In fact, the judges asserted that
the 20-year-old practice of keeping the two largely separate
was never required and was never intended by Congress.
"Effective counterintelligence, as we have learned,
requires the wholehearted cooperation of all the government's
personnel who can be brought to the task," the panel wrote. "A
standard which punishes such cooperation could well be thought
dangerous to national security." [Excerpts, Page A19.]
Today's unanimous ruling was a significant victory for
Attorney General John Ashcroft, who announced immediately that
he would use it to greatly expand the use of the special
intelligence court by prosecutors to obtain wiretaps of people
suspected of involvement with terrorists.
"This is a giant step forward," Mr. Ashcroft said at the
Justice Department, adding that he would swiftly increase the
number of lawyers both at the Federal Bureau of Investigation
and in prosecutors' offices around the country to seek
authorization for new wiretaps and surveillance orders to
combat terrorism.
"This revolutionizes our ability to investigate terrorists
and prosecute terrorist acts," he said.
The ruling also adds momentum to the Bush administration's
determination to shake off restrictions on how investigators
have operated since the Sept. 11 attacks, including the
lifting of restrictions on investigators using the Internet to
compile databases for combating terrorists. It may also oblige
the F.B.I. to share information gathered by its
counterintelligence agents more readily.
Both the appeals court and the court whose opinion it
overturned today were created solely to administer a 1978 law
allowing the government to conduct intelligence wiretaps
inside the United States. The three-member appeals court, the
United States Foreign Intelligence Surveillance Court of
Review, in issuing its first opinion ever, said that the lower
court, the Foreign Intelligence Surveillance Act Court, had
erred when it tried to impose restrictions on the Justice
Department.
The Court of Review, which had never met before and
essentially existed on paper, is made up of Judges Ralph B.
Guy of the United States Court of Appeals for the Sixth
Circuit; Edward Leavy of the Court of Appeals for the Ninth
Circuit; and Laurence H. Silberman of the Court of Appeals for
the District of Columbia Circuit. All were appointed to the
panel by Chief Justice William H. Rehnquist of the Supreme
Court.
Because of the unusual nature of the law on which the case
was decided it is unclear whether anybody is in a position to
appeal today's ruling to the Supreme Court. The only party was
the Justice Department, which won; the American Civil
Liberties Union and the National Association of Criminal
Defense Lawyers, who filed briefs, were afforded only
friend-of-the-court status, which does not entitle them to
appeal.
Ann Beeson, a litigation director at the civil liberties
union, said her group was exploring whether to seek to be
allowed to intervene as a party.
The case arose in May when the lower court, which decides
whether to grant intelligence authorizations, ruled on an
application submitted by Mr. Ashcroft's investigators. At the
time, the court ordered the government to meet certain
conditions to obtain the authorization to wiretap an
individual who is identified in court papers only as a
resident of the United States who is working as an agent of a
foreign power.
The three members of the lower court ordered the Justice
Department to show that the primary purpose of the application
was for intelligence gathering and not a criminal case.
Moreover, the court ordered that prosecutors in the Justice
Department's Criminal Division could not take an active role
in directing the activities of the intelligence division.
The notion of a separation arose in the 1980's and was put
into department regulations in 1995. The reason was that the
requirements for obtaining a wiretap for intelligence
gathering were thought to be easier to meet than those for a
straightforward criminal investigation. As a result,
investigators were instructed not to try to avoid the stricter
standards for a criminal investigation by pretending it was
for intelligence.
Although the world of national security wiretaps has always
been conducted out of public view, Mr. Ashcroft's challenge of
the lower court ruling exposed the debate in the government
over the balance between civil liberties and national security
that heated up after Sept. 11.
In an unsigned opinion, the appeals court unanimously ruled
that Mr. Ashcroft was correct in saying that the USA Patriot
Act swept away the distinctions between the intelligence and
criminal sides of the national security operations. Even more
striking in the court's ruling was the strong assertion that
the restriction that had been observed for two decades was
never required.
The appeals court noted that the lower court had said there
was a "wall" between the investigative and intelligence sides.
But the judges today said that there is not and never was
supposed to be a wall between the two and that the Justice
Department contributed to this mistake by writing it into its
regulations.
The appeals court was harsh in its language directed at the
lower court for trying to retain a wall between intelligence
officials and prosecutors. The panel said that the judges on
the FISA court, as the lower court is known, were improperly
trying to tell the Justice Department how to run its
operations and that that was a violation of the Constitution's
separation of powers between equal branches of government.
The lower court ruling was written by Judge Royce C.
Lamberth, who was until recently the chief judge of the FISA
court. Judge Lamberth had complained angrily that Justice
Department officials had frequently misled the court by
claiming they were seeking wiretap authorization for
intelligence gathering but had been deceptive in that they
were trying to obtain a wiretap for a criminal
investigation.
The appeals court also asserted that the requirements for
obtaining wiretap authorization under the intelligence law
were not that different in a constitutional sense from the
requirements for obtaining a warrant in a criminal case,
challenging a widely held assumption. Applications for
criminal warrants must comply with the Fourth Amendment's
proscriptions against intrusive searches and require an
official declaration that there is "probable cause" to believe
the subject is involved in a crime. By contrast, the
intelligence surveillance law requires only a showing that
there is probable cause that the subject is the agent of a
foreign power.