portland independent media center  
images audio video
newswire article

human & civil rights

Groups Lose Challenge to Government's Broader Use of Wiretaps

WASHINGTON, March 24 An effort by a coalition of civil liberties groups to bring a Supreme Court challenge to the government's use of expanded surveillance authority under a post-Sept. 11 statute failed today. The justices, without comment, refused to permit the groups to file an appeal from a ruling by a special federal appeals court that the USA Patriot Act granted broad new authority to use wiretaps obtained for intelligence operations to prosecute terrorists.
Published on Tuesday, March 25, 2003 by the New York Times
by Linda Greenhouse

The American Civil Liberties Union, the National Association of Criminal Defense Lawyers and two Arab-American groups needed the court's permission to file their appeal because under the Foreign Intelligence Surveillance Act, the 1978 law that set up a special court system for reviewing intelligence wiretap requests, the government is the only party and only the government can file a Supreme Court appeal.

The decision last November by the Foreign Intelligence Surveillance Court of Review, a court composed of three federal judges who ordinarily sit on other federal appeals courts, was the first ruling that court had issued in its 25 years of existence. The review court permitted the A.C.L.U. and the defense lawyers to file briefs as "friends of the court," but the United States was the only party.

The case that produced the November ruling was a government appeal of a decision by the lower court in this special system, the Foreign Intelligence Surveillance Act Court, which had rejected the broad interpretation that Attorney General John Ashcroft claimed for the USA Patriot Act. The 11 judges of that court made their ruling in secret last May, with the decision remaining unknown to the public until Congress released it three months later.

In their petition to the Supreme Court, the civil liberties union and the other groups told the justices that the important issues coming before these special courts "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 petition argued that the review court had misinterpreted the USA Patriot Act to permit foreign intelligence wiretaps to be used for law enforcement purposes. If that interpretation of the statute was correct, the petition said, then the law itself was unconstitutional under both the First Amendment's guarantee of free speech and the Fourth Amendment's prohibition of unreasonable searches.

The other groups joining the petition were the American-Arab Anti-Discrimination Committee and the Arab Community Center for Economic and Social Services.

The government did not file a response to the groups' petition. Attorney General Ashcroft said today that he was "pleased the Supreme Court declined to consider a challenge of the government's lawful actions to detect and prevent international terrorism and espionage within our borders."

Last November, Mr. Ashcroft declared the review court's decision in the government's favor "a giant step forward" and said it "revolutionizes our ability to investigate terrorists and prosecute terrorist acts."

Ann Beeson, the American Civil Liberties Union lawyer who filed the petition, acknowledged that the case had been a long shot but said that it was "very important to keep these issues in the public debate."

While defendants who are prosecuted on the basis of intelligence wiretap evidence may be able to challenge the use of the evidence, Ms. Beeson said the civil liberties groups' central concern was for those "innocent targets" who, under the law, may never find out that they had been the object of surveillance.

Congress is considering several proposals to bring the activities of the special courts under closer supervision.

These were among the other developments at the court today.

Car Search

Accepting an appeal by the State of Maryland, the court agreed to decide whether the police can arrest all the occupants of a car when a search turns up drugs or contraband for which all the occupants deny responsibility.

Twenty other states joined Maryland's appeal of a 4-to-3 ruling by the Maryland Court of Appeals overturning the conviction of Joseph J. Pringle, a passenger in a car that was stopped for speeding. The officer searched the car after seeing a large roll of bills in the glove compartment that the driver opened to find his registration. Mr. Pringle eventually confessed to ownership of the money and the cocaine that was also found in the car.

"Simply stated, a policy of arresting everyone until somebody confesses is constitutionally unacceptable," the Maryland appeals court said.

In its appeal, Maryland v. Pringle, No. 02-809, the state argues that whether probable cause exists to arrest all the occupants of a car in a similar situation depends on "the totality of the circumstances" and should not be subject to a hard and fast rule.

Elections Fund

Without comment, the court turned down a First Amendment challenge to an Arizona campaign finance law that created a "clean elections fund," supported by a surcharge of 10 percent on civil and criminal fines collected in the state.

The law was challenged by a state legislator, Steve May, who received a $27 parking ticket and refused to pay the $2.70 surcharge. He refused to accept public financing for his own campaigns and said he did not want to be forced to pay for the campaigns of others, including his opponents.

The Arizona Supreme Court upheld the law last October, ruling that because the law operated in a "viewpoint neutral" manner, it was not an unconstitutional compulsion of speech but in fact had the effect of expanding free speech. But the Institute for Justice, the libertarian group that filed Mr. May's appeal, said the law transformed the act of contributing to political campaigns from one of "individual volition into an act of compulsion." The case was May v. Brewer, No. 02-1065.

Copyright 2003 The New York Times Company

homepage: homepage: http://www.commondreams.org/headlines03/0325-05.htm