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Senators on Tuesday called for a secret appellate court to make public its decision on whether to give the Justice Department more power to wiretap suspected terrorists and spies. However, those same members of the Senate Judiciary Committee squabbled over how the Justice Department has been interpreting the changes Congress made in the wiretap laws after the Sept. 11 attacks last year. For the first time in its 24-year existence, the United States Foreign Intelligence Surveillance Court of Review had to meet Monday to review a Justice Department request to use espionage wiretaps for criminal operations. Its lower court in August struck down a Justice Department surveillance request and its assertion that it can use Foreign Intelligence Surveillance Act wiretaps for criminal as well as espionage operations. Prosecutors pointed to the USA Patriot Act, which changed the surveillance law to permit its use when collecting information about foreign spies or terrorists is “a significant purpose,” rather than “the purpose,” of such an investigation. Previously, the FISA wiretaps could only be used for foreign intelligence investigations and not criminal investigations. The Foreign Intelligence Surveillance Court disagreed with the Justice Department’s interpretation, and federal prosecutors appealed to the higher court. The appeals court convened Monday in a high-security room at the Justice Department in Washington, D.C., and made no announcement of whether it had made a decision. Civil liberties groups denounced the secret nature of the court. “Hearing a one-sided argument and doing so in secret goes against the traditions of fairness and open government that have been the hallmark of our democracy,” said Ann Beeson, a litigation director at the American Civil Liberties Union. Senators asked the court to publicly release its decision and the arguments Justice Department lawyers made in front of it, so lawmakers can know how government prosecutors are using the changes they provided. “We need to know how this law is being interpreted and applied,” Senate Judiciary Chairman Patrick Leahy, D-Vt., said Tuesday. No answer has been received from the court one way or the other, Senate officials said Tuesday. Critics have feared that the government might use the FISA change as a loophole to employ espionage wiretaps in common criminal investigations. But a Justice Department official told senators Tuesday that the agency still could only use espionage wiretaps against people considered to be foreign spies or working for foreign countries. Associate Deputy Attorney General David Kris said that there may be times where law enforcement needs to be involved with their work to stop foreign spies and terrorists. “When we identify a spy or a terrorist, we have to pursue a coordinated, integrated, coherent response,” Kris said in written remarks to the Senate Judiciary Committee. “We need all of our best people, intelligence and law enforcement alike, working together to neutralize the threat.” Senate Republicans and Democrats disagreed on whether they intended the USA Patriot Act to loosen the wiretap laws to include criminal investigations. “It was not the intent of the amendments to fundamentally change FISA from a foreign intelligence tool into a criminal law enforcement tool,” Leahy said. “We all wanted to improve coordination between the criminal prosecutors and intelligence officers, but we did not intend to obliterate the distinction between the two, and we did not do so.” But Republicans said that was the exact intent of the law. “It is clear that Congress intended to allow greater use of FISA for criminal purposes and to increase the sharing of intelligence information and coordination of investigations between intelligence and law enforcement officers,” said Sen. Orrin Hatch, R-Utah. Copyright 2002 Associated Press. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed.

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