Idaho Librarian

PATRIOT ACT:

LATEST DEVELOPMENTS

 11/24/02

The Justice Department was successful in its appeal of the decision of the FISA court. The victory was not too surprising, according to commentators, since the cards were stacked in the government’s favor. The three-judge appeals panel, selected by Chief Justice Renquist, consisted of semi-retired federal judges that had been appointed by President Reagan. Furthermore, in accordance with the secrecy that surrounds the FISA court, only the Justice Department was allowed to present oral arguments. The ACLU and the organizations in its coalition were permitted to present a written amicus curiae brief, but not to be present at the hearing.

In its 54-page decision, (available at http://www.cadc.uscourts.gov/common/newsroom/02-001.pdf ), released on November 23^rd , the appeals court gave a nod in the direction of the privacy protection provisions of the Fourth Amendment, but stressed the special circumstances created by the terrorist attack of September 11^th. The appeals court rejected the FISA court’s interpretation of the provisions of the Foreign Intelligence Act regarding the separation of intelligence and criminal investigations. In effect, the "wall" between these two functions has now been torn down.

The only party in the case that can appeal the decision of the appeals court to the Supreme Court is the Justice Department. It seems unlikely, despite the request of the ACLU, that they will do so.

The Justice Department moved quickly to take advantage of the appeals court decision. Federal counterintelligence lawyers are being deployed to terrorism task forces in New York and Washington. The F.B.I. is creating an electronic system to enable field agents to draft surveillance applications more quickly, and expanding its training of agents in surveillance law.

On the horizon lies the Defense Department’s "Total Information Awareness" program, an information-gathering scheme recently put forward by the head of the Department’s new "Information Awareness Office", John Poindexter. Poindexter, you may remember, was the Reagan Administration official who was convicted of lying to Congress about the Iran-Contra affair, then exonerated later because it was concluded that he had been given immunity. The "Total Information Awareness" proposal would employ the latest in sophisticated "data-mining" techniques to gather information from a vast array of databases.  (see the official website: http://www.darpa.mil/iao/TIASystems.htm )

Other ominous developments include the government’s efforts to reduce the effectiveness of Freedom of Information Act requests by stamping "classified" on a great number of documents previously available for public scrutiny. In addition, the legislation establishing the Department of Homeland Security (available at http://news.findlaw.com/nytimes/docs/terrorism/hsa2002.pdf ) has protected a vaguely-defined and potentially huge amount of information from public disclosure through FIA requests (Title II, subtitle A, sec. 201, d, 12, on pp.26-7 of the document.)