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Chief Justice William Rehnquist once called the job of a judge on the Foreign Intelligence Surveillance Court of Review “the easiest job you can have.” That’s because in its nearly 25 years of existence, the court has never actually reviewed anything. Now the obscure appeals court, made up of three semi-retired federal appellate court judges, has been called to action for the first time ever in a dispute over controversial Justice Department policies adopted in the aftermath of Sept. 11. The case marks one of the first important tests of the USA Patriot Act, and after an unprecedented series of events, it is in the hands of this unknown court — designed to operate in secrecy and to hear arguments only from the executive branch. What makes the situation so extraordinary is that the proceedings will likely be completely one-sided, with only the Justice Department presenting its case. Presumably, only the Bush administration would have standing to appeal the review court’s decision to the U.S. Supreme Court. Former DOJ official Kenneth Bass III, who once ran the office responsible for seeking warrants under the Foreign Intelligence Surveillance Act, says the case calls out for someone to balance the government’s argument. “There’s always a possibility that someone would move to intervene,” says Bass, now senior counsel at Washington, D.C.’s Sterne, Kessler, Goldstein & Fox. “The best situation would be one where the appeals court asks someone to file a brief amicus curiae on behalf of the FISA court.” The FISA review court was created by Congress along with the Foreign Intelligence Surveillance Court in 1978 to authorize search and surveillance warrants for foreign intelligence targets. The review court has never convened because the lower court, known as the FISA court, has never turned down a government surveillance request. The court has approved approximately 13,000 applications since its inception. And just once, in 1997, the government withdrew a request that the court had found deficient. The legal question confronting the review court is thorny: Does the USA Patriot Act remove or merely loosen previous constraints on the coordination between prosecutors and intelligence gatherers? Last week, lawyers with groups interested in filing amicus curiae briefs exchanged e-mails and phone calls wondering how to weigh in when a court is neither open nor adversarial. “There don’t seem to be any rules for procedure, which leaves us in limbo,” says Lee Tien, a lawyer for the San Francisco-based Electronic Frontier Foundation. “If we decide there is an argument worth making, we may well try to submit a brief. The worst that can happen is the court will decide not to accept it.” The review panel is now made up of three senior judges: Ralph Guy of the 6th U.S. Circuit Court of Appeals, Edward Leavy of the 9th Circuit, and Laurence Silberman of the D.C. Circuit. When contacted last week, Silberman declined to comment on how the court plans to handle the case or whether it will accept amicus briefs. “To call this a court of appeals is to stretch the conventional definition of an appeals process,” says George Washington University law professor Jonathan Turley, a critic of the FISA process. “In a real court of appeals you would have a collection of opposing views. You would also have an argument that would occur in public so citizens could judge the merits of the government’s position.” The lower court’s ruling may have to speak for itself. In a scathing opinion made public Aug. 22, the FISA court struck down new DOJ protocols for communication between prosecutors and intelligence agents. Among the court’s concerns: that the lax guidelines would allow prosecutors to spy on U.S. residents without demonstrating probable cause as required by law. The ruling points to more than 70 cases in the late 1990s in which FISA judges were misled about coordination between law enforcement and intelligence agents. It was the first opinion ever published by the 11-member FISA court, which operates out of a vaultlike chamber within the Justice Department and deals almost exclusively with classified information. The Justice Department filed an appeal Aug. 23 arguing that when it comes to protecting the nation against terrorist threats, law enforcement and national security objectives cannot be divided. DOJ officials want prosecutors to advise intelligence officers on all aspects of an investigation, including the methods and strategies to be used. “We’ve got to have the ability to prevent something from happening, and if that means arresting someone, we’ve got to be coordinated with the tools to make a charge,” says one senior Justice Department official. “We don’t want a false choice: Either you get intelligence information on terrorist activity, or you’re able to take steps to actually lock up and charge people and get them off the street.” The sticking point is that FISA surveillance is supposed to be used “for the purpose of obtaining foreign intelligence information.” A less rigorous standard of evidence is used to authorize a search or surveillance under FISA than is used by federal trial court judges to weigh the validity of searches and surveillance in mainstream criminal cases. Under the March 2002 guidelines approved by Attorney General John Ashcroft, prosecutors would be permitted to “advise intelligence officials on the initiation, operation, continuation, or expansion of FISA searches or surveillance.” According to the lower FISA court, such extensive collaboration would amount to law enforcement “directing FISA surveillances and searches from start to finish,” which it considers illegal. But the FISA court based its decision on peripheral provisions of FISA left unchanged by the Patriot Act. The Justice Department asserts that FISA surveillance can now be used more extensively for law enforcement purposes because of amendments included in the act. During the drafting of the Patriot Act, Ashcroft asked for a change that would have downgraded the foreign intelligence requirement under FISA from the “primary purpose” of FISA surveillance to simply “a purpose.” Congress compromised by changing the language to “a significant purpose.” “By requiring only a ‘significant’ purpose to obtain foreign intelligence information, Congress allowed for other purposes, including a purpose to obtain evidence for use in a prosecution to be the ‘primary’ reason for conducting a search or surveillance,” the administration argues in its appeal. Still, the aggressive interpretation of the law has some lawmakers leery. “[The administration] makes the leap that law enforcement can now be the primary purpose. They presume that, and that’s a little bit troubling,” says one congressional staffer. David Carle, a spokesman for Sen. Patrick Leahy, D-Vt., chairman of the Senate Judiciary Committee, says the committee is likely to schedule hearings on the FISA process after Congress resumes activity this week. Leahy, along with Republican Sens. Charles Grassley of Iowa and Arlen Specter of Pennsylvania requested the FISA court opinion and released it to the public. Civil liberties advocates call the Justice Department’s position “a bait and switch.” “The whole point of that compromise [with Congress] was to deny use of FISA in investigations that were principally law enforcement,” says GWU’s Turley. “After agreeing to compromise in congressional proceedings, they went on in secret to implement what was originally refused by Congress.”

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