[New York Times] March 24, 2003 Supreme Court Refuses to Review Wiretaps Ruling By DAVID STOUT
WASHINGTON, March 24 - In a case balancing national security with civil liberties, the Supreme Court refused to interfere today with a lower court ruling giving the Justice Department broad new powers to use wiretaps to prosecute terrorists.
The justices declined without comment to review a decision last Nov. 18 in which a special federal appeals court found that, under a law passed after the terror attacks of Sept. 11, 2001, the Justice Department can use wiretaps installed for intelligence operations to go after terrorists.
That November decision was crucial, because for some two decades there was presumed to be a "wall" between wiretap operations for intelligence-gathering and wiretapping in the course of criminal investigations.
Obtaining permission for a wiretap to gather intelligence has generally been easier than getting authorization for a wiretap in a straightforward criminal investigation. Thus, prosecutors were admonished not to try to skirt the tougher standards for a wiretap in a criminal investigation by claiming it was actually to gather intelligence.
The landscape changed with the passage of legislation, shortly after the Sept. 11 attacks, broadening government surveillance powers. Justice Department investigators applied last May for permission to wiretap an individual who was identified in court papers only as a resident of the United States.
The department met resistance from the three-member Foreign Intelligence Surveillance Act Court, which exists solely to administer a 1978 law allowing the government to conduct intelligence wiretaps inside the United States. That court ordered the Justice Department to show that its primary purpose in applying for the wiretap was intelligence gathering and not for a criminal case.
Moreover, the three-member court decreed that prosecutors in the Justice Department's criminal division could not take an active role in directing activities of the department's intelligence division.
Attorney General John Ashcroft appealed to the United States Foreign Intelligence Surveillance Court of Review, which had never met before and which exists, like the lower court, only to oversee the 1978 law. The court of review ruled in November that the lower court had erred when it tried to impose restrictions on the Justice Department. Furthermore, the court of review said, there never was supposed to be a "wall" between intelligence gathering and criminal investigations.
"Effective counterintelligence, as we have learned, requires the wholehearted cooperation of all the government's personnel who can be brought to the task," the review panel wrote. "A standard which punishes such cooperation could well be thought dangerous to national security."
The review panel criticized the lower court, declaring that it had improperly tried to tell the Justice Department how to do its business, in violation of the Constitution's separation of powers between equal branches of government.
The Court of Review 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.
Mr. Ashcroft praised the November decision as one that "revolutionizes our ability to investigate terrorists and prosecute terrorist acts."
But the American Civil Liberties Union, the National Association of Criminal Defense Lawyers, the American-Arab Anti-Discrimination Committee and the Arab Community Center for Economic and Social Services, a Michigan-based organization, assailed the November decision. "These fundamental issues should not be finally adjudicated by courts that sit in secret, do not ordinarily publish their decisions, and allow only the government to appear before them," the groups said in asking the Supreme Court to review it.
The A.C.L.U. and its allies had only friend-of-the-court status in the case, since technically the Justice Department was the only party. Thus, it was not surprising that the Supreme Court declined today to review the lower courts' decision.