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PostPosted: Fri Aug 23, 2002 4:26 pm 
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Joined: Mon Nov 20, 2000 6:01 am
Posts: 493
Location: Framingham, MA USA
I have noted that many of our readers in the forums are aware that delicate balances exist in the post 9/11 in the USA referring to our present freedom and the usurpation of the same by administrative and law enforcement agencies in the name of protecting US citizens from terrorists or subversives and in my opinion such concerns are well justified.

On the other hand we need to have some faith in our elected officials and the basic operation of our government.

The system is supposed to work with the check and balance theory presented in the constitution, with the branches of our government.

In Roy Bedard’s forum there was a post concerning the subject matter and a dialogue developed that was very well presented.

I have been posting now and then about these issues from the inception of the USA Patriot Act in October of 2001.

This morning I noted what I considered an excellent article that seems to point out that we still have a checks and balance system. The outcome can only be determined by the final rulings, but it is heartening to see that the executive, administrative and judicial are all represented and a meaningful attempt is made in accordance with the way the system is supposed to function.

Here is the article

By TED BRIDIS, Associated Press Writer

WASHINGTON (AP) - Setting up the next showdown over anti-terrorism powers, the Bush administration appealed a court ruling that forced Attorney General John Ashcroft ( news - web sites) to change new guidelines for FBI ( news - web sites) terrorism searches and wiretaps.

Documents released Thursday showed that the U.S. Foreign Intelligence Surveillance Court, which has not publicly disclosed any of its rulings in nearly two decades, rejected some of Ashcroft's guidelines as "not reasonably designed" to safeguard the privacy of Americans. The secretive court oversees government's most sensitive surveillance efforts.

The Justice Department ( news - web sites) amended the guidelines and won the court's approval. But the Bush administration it was appealing the court's restrictions, arguing that the new limits inhibit the sharing of information between terrorism investigators and criminal investigators.

The Justice Department declined to release a copy of the appeal Thursday night to reporters. Officials said it was coincidence that the appeal was filed the same day the court's May 17 order was made public.

The court also disclosed the FBI acknowledged making more than 75 mistakes in applications for espionage and terrorism warrants under the surveillance law, including one instance in which former Director Louis Freeh gave inaccurate information to judges.


"How these misrepresentations occurred remains unexplained to the court," the special court said.

The court's orders, signed by U.S. District Judge Royce Lamberth, were disclosed to the Senate Judiciary Committee ( news - web sites), which has raised questions about the Justice Department's use of wiretap laws in espionage and terrorism cases.

The court, now headed by U.S. District Judge Colleen Kollar-Kotelly, said it intended separately to publish the rulings and promised similarly to disclose any future unclassified orders.

Congress last year passed and President Bush ( news - web sites) signed the USA Patriot Act, which among other things loosened standards for obtaining warrants.

In March, Ashcroft, in a memorandum to FBI Director Robert Mueller and senior Justice officials, made it easier for investigators in espionage and terrorism cases to share information from searches or wiretaps with FBI criminal investigators.

But the surveillance court, which considers federal search and wiretap requests in secret under the 1978 Foreign Intelligence Surveillance Act, found that Ashcroft's rules could allow misuse of information in criminal cases. Prosecutors in criminal cases must meet higher legal standards to win approval for searches or wiretaps.

"These procedures cannot be used by the government to amend the (surveillance) act in ways Congress has not," the court wrote. In its rare public rebuke, it said the Justice Department spent "considerable effort" arguing its case, "but the court is not persuaded."

Justice spokeswoman Barbara Comstock said that the decision hampers use of the surveillance law.

"They have in our view incorrectly interpreted the Patriot Act, and the effect of that incorrect interpretation is to limit the kind of coordination that we think is very important," she said.

Ashcroft had argued that, under changes authorized by the Patriot Act, the FBI could use the 1978 surveillance law to perform searches and wiretaps "primarily for a law enforcement purpose, so long as a significant foreign intelligence purpose remains."

Critics of the 1978 law said it may have hampered the federal investigation of Zacarias Moussaoui prior to the Sept. 11 attacks. Moussaoui now is awaiting trial on conspiracy charges in the attacks.

The Patriot Act 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 an investigation. Critics at the time said they feared government might use the change to employ espionage wiretaps in common criminal investigations.

"The attorney general seized authority that has not been granted to him by the Constitution or the Congress," said Marc Rotenberg, head of the Washington-based Electronic Privacy Information Center.

In a follow-up order also disclosed Thursday, the court accepted new Justice guidelines amending Ashcroft's instructions. The court also demanded to be told about any criminal investigations of targets under the surveillance act and about discussions between the FBI and prosecutors at Justice.

"The first Ashcroft order sort of snugged up against the new line that was being drawn, and that may not have been prudent," said Stewart Baker, an expert on the law and former general counsel at the National Security Agency. "You might be able to justify it legally, but I can see why the court would have reacted badly."

Critics have worried that the surveillance court is too closely allied with the government, noting that judges have rarely denied a request under the 1978 law. But the newly disclosed court's orders indicated irritation with serious FBI blunders in 2000 and 2001.

The court said the FBI admitted in September 2000 to mistakes in 75 wiretap applications, including Freeh's erroneous statement to judges that the target of a wiretap request wasn't also under criminal investigation. (end of article)

It may look like a chess game with the winner uncertain, but I for one, feel better that one agency or another does not have unique unilateral power without the need for oversight.

Alan K


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