Ashcroft and FISA Court Review

The Justice Department has filed a new brief with the secret Appeals Court that is reviewing the lower FISA Court 's rejection of Ashcroft's revised and expanded physical and electronic search guidelines this past May.

The Government, through Attorney General Ashcroft is arguing that the lower FISA court exceeded its authority in rejecting its rules. You can access the brief here.

We disagree for reasons we have stated here.

Once again Justice is attempting an end-run around our contstitutional right to be free from unreasonable searches and seizures and the Fourth Amendment's and Title III's strict warrant requirements.

Their claim that the Patriot Act allows them to seek wiretap and search warrants where the main purpose of the warrant is investigating crime rather than intelligence gathering is a twisted interpretation of the Act. The FISA Act required that intelligence gathering be a "primary purpose" for the issuance of the warrant. Congress rejected Ashcroft's initial draft of the Patriot Act which would have reduced "primary purpose" down to "a purpose." After Congress balked, a compromise was worked out. Intelligence gathering now has to be a significant purpose (as compared to a primary purpose ) of the warrant.

"Sen. Orrin Hatch, R-Utah, the committee's ranking Republican, said this week "it was clear to us" that a search or wiretap would be allowed even if the investigation's primary purpose was collecting criminal evidence, as long as gathering foreign intelligence also was a "significant purpose."

"But Judiciary Committee Chairman Patrick Leahy, D-Vt., has complained that Ashcroft is wrongly interpreting the changes Congress approved."

"It was not the intent of these amendments to fundamentally change (the surveillance law) from a foreign intelligence tool into a criminal law enforcement tool," Leahy said at an oversight hearing this month. "We did not intend it to obliterate the distinction between the two and we did not do so."

The National Association of Criminal Defense Lawyers , which filed an amicus brief in the case this week, adds:

"Now, the Justice Department's interpretation of the amendments to FISA allow supervision of the relaxed-standard searches by regular criminal investigators if they can claim any non-trivial connection to foreign intelligence. It allows for greatly broadened use of FISA searches in cases where normal Fourth Amendment protections should apply."

"To ordinary citizens, particularly those who do business internationally, that means that criminal investigators can eavesdrop on their conversations or search their businesses, homes, phone records, and e-mail correspondence without the requirement that investigators convince a judge that there is some reason to suspect criminal activity. "

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