-Caveat Lector-

http://www.nytimes.com/2002/11/19/opinion/19TUE2.html

A Green Light to Spy

Anyone who worries that the war on terrorism will inspire an era of
unprecedented government spying on Americans has new cause for concern
today. The top-secret Foreign Intelligence Surveillance Court of Review
handed the government broad new authority yesterday to wiretap phone
calls, intercept mail and spy on Internet use of ordinary Americans. The
Supreme Court and Congress should reverse this misguided ruling.

In May the Foreign Intelligence Surveillance Act Court, a lower tribunal
established in 1978 to oversee domestic spying by the government, issued a
stern rebuke to the Justice Department for its practices. The court held,
7 to 0, that in ordinary criminal prosecutions the government had
improperly used the more lenient standard the law allows for collecting
information on foreign spies and terrorists. The court identified 75
instances in which the F.B.I. had abused its authority, in some cases by
making false statements in eavesdropping applications.

The appellate court, in its ruling yesterday, reversed that decision. The
appellate ruling is procedurally troubling. The court's sessions are held
in secret, and the government is the only party allowed to appear before
it. The members of the court are hand-picked by Chief Justice William
Rehnquist. Ignoring the diversity of views on the federal bench, he
selected three judges appointed by President Ronald Reagan. The
combination of one-sided arguments and one-sided judges hardly instills
confidence in the court's decisions.

More disturbing, though, is the court's substantive decision and the way
the Justice Department is interpreting it. The decision gives the
government a green light to remove the separation that has long existed
between officials conducting surveillance on suspected foreign agents and
criminal prosecutors investigating crimes. Attorney General John Ashcroft
has announced that he intends to use it to sharply increase the number of
domestic wiretaps, and that he will add lawyers at the F.B.I. and at
federal prosecutors' offices around the country to hurry the process
along.

The Supreme Court should step in to restore the lower court's ruling, and
Congress should redraft its statutes to clear up any confusion about what
the law requires. One of the biggest challenges the nation faces is
fighting foreign enemies without sacrificing civil liberties at home.
Yesterday's ruling failed to rise to that challenge.

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