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A ruling issued Monday by an appellate court with jurisdiction over government applications for national security surveillance is being hailed by government officials as allowing coordination between government agencies essential to combat terrorism. But critics counter that the ruling signals a major erosion of the constitutional protection against illegal searches and seizures and will turn a statutory safeguard, enacted by Congress in 1978 to protect against governmental abuses, into a “rubber stamp” for government agents. In its ruling, the three-judge Foreign Intelligence Surveillance Court of Review granted the government permission to fully involve prosecutors and FBI agents in foreign intelligence surveillance operations. It overruled a unanimous decision issued in May by seven trial judges of a lower surveillance court that was highly critical of the government’s approach. On Monday, U.S. Attorney General John Ashcroft said that the ruling, in confirming the Department of Justice’s “legal authority to integrate fully the functions of law enforcement and intelligence,” was “a victory for liberty, safety and the security of the American people.” But Lawrence S. Goldman, the president of the National Association of Criminal Defense Lawyers, blasted the court’s decision to overturn “25 years of precedent and established Department of Justice policy as just plain wrong.” The decision, said Goldman, a Manhattan-based criminal lawyer, allows prosecutors to remove “a whole, vast group of cases” from the probable cause requirement of the Fourth Amendment by applying “a terrorism tag, which has been broadly construed.” Added Jameel Jaffer, a staff attorney in the Manhattan office of the American Civil Liberties Union, the decision “essentially renders judicial oversight of FBI surveillance meaningless.” Jaffer also pointed to language in the court’s opinion that he contends instructed the judges at the trial level of the Foreign Intelligence Surveillance Act Court to “rubber stamp” government requests for monitoring. Language in the decision, he asserted, instructed the trial judges only to look at whether a government agent had made a required certification in support of the surveillance application, and not to make any inquiry into either “the veracity of the certification or the facts behind it.” A government spokeswoman dismissed the criticism as missing the thrust of the opinion, which was to bar the trial judges “from micromanaging how information is put before the court.” She said no change was intended in the way the courts assess whether the government has established probable cause. RIGHTS CLAIMED DILUTED Critics contend that the Foreign Intelligence Surveillance Act of 1978 was set up in response to the discovery that intelligence agencies had been used to gather information on U.S. citizens. To allow intelligence gathering, while protecting citizens’ constitutional rights, critics say, the statute lowered the standard for the collection of security information to a demonstration that the subject of the surveillance was the agent of a foreign power. As a tradeoff for lowering the Fourth Amendment requirement that probable cause of criminal activity be demonstrated in order to permit intelligence gathering, the statute required a strict isolation of intelligence and law enforcement operations, critics say. That argument was bolstered, they asserted, by regulations adopted by the Justice Department in the mid-1980s to erect a wall between agents involved in intelligence gathering and those with prosecutorial authority. When the Justice Department’s application to eliminate the “wall” between the two areas of operation came before the seven trial court judges, the judges not only refused to authorize the change but chastised the department for failing to be candid about the participation of prosecutors in intelligence gathering. The opinion, which was written by Judge Royce C. Lamberth, who was then chief judge of the intelligence trial court, suggested that the government was trying to defy the will of Congress by allowing intelligence material to be shared freely with criminal investigators. FIRST DECISION ON APPEAL Monday’s decision — the first ever to be issued by the three-member appeals panel — approved the elimination of the wall between prosecution and intelligence. The appeals panel criticized the trial court’s finding that it lacked the power to approve any order not “primarily” aimed at intelligence gathering. The appeals court faulted the lower court for failing to cite provisions of the 1978 Foreign Intelligence Surveillance Act in support of its opinion. Likewise, the panel said the court neglected to reference the USA Patriot Act, which was adopted by Congress only weeks after the Sept. 11, 2001, terrorist attack. That act, the panel wrote, specifically amended the 1978 law to eliminate the requirement that foreign intelligence gathering be “the” primary purpose of the monitoring. The panel asserted that the trial court’s failure “to consider the legal significance of the Patriot Act’s crucial amendments was error.” The appeals panel also embraced the government’s argument that the 1978 law’s authorization of intelligence gathering encompassed the collection of “evidence of crimes such as espionage, sabotage or terrorism.” Because the decision issued by the panel was its first, it raises many unsettled questions. The only party to the appeal was the government because the party against whom surveillance is being sought, of necessity, cannot be given notice of the application. As a consequence, short of waiting for a subject of an investigation to appeal after being convicted, the issue arises: Is there any vehicle by which someone can ask the U.S. Supreme Court to review? Both the ACLU and the national defense lawyers said they were exploring the possibilities, including an application to intervene in the case. In the meantime, the status of the appeals panel’s ruling is uncertain: Does it have the same precedential value as a ruling issued by any of the circuit courts of appeal? Under the 1978 law, U.S. Supreme Court Justice William H. Rehnquist has appointed all the trial and appellate judges of the Foreign Intelligence Surveillance Act Court. (There are now 11 trial judges as a result of a new provision in the USA Patriot Act.) The three appeals judges who issued Monday’s unsigned opinion are Judge Ralph B. Guy of the 6th U.S. Circuit Court of Appeals, Judge Edward Leavy of the 9th Circuit and Judge Laurence H. Silbermann of the D.C. Circuit.

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