Ashcroft Fights Limits Imposed on Wiretaps

The Justice Department aggressively urged an appeals panel for the nation’s secretive spy court to reconsider limits on special wiretaps for terrorists and spies.

The legal filings, made public Thursday, are part of a fight within the government to balance new surveillance powers against citizen rights.

In the documents signed by Atty. Gen. John Ashcroft, the government said the U.S. Foreign Intelligence Surveillance Act court raised “significant constitutional questions” when it rejected some of Ashcroft’s post-Sept. 11 guidelines for terrorism and espionage investigations.

The May 17 ruling was the first substantial defeat for the government in the spy court.

The court, charged with overseeing sensitive law enforcement surveillance, was “attempting to impose rules for the operation of the executive branch and structure the functions of different units with the executive branch,” Justice lawyers wrote in an 80-page brief.

They charged that the spy court “wholly exceeded” its authority and “acted impermissibly by exercising and undermining ... uniquely executive powers.”

Justice lawyers also accused the court of “judicial excesses” by raising questions whether to approve some secret wiretaps and physical searches, adding that courts generally should defer to the judgment of the FBI director when he decides that secret surveillance is necessary.

Justice lawyers renewed their arguments that Ashcroft’s new guidelines were permitted under the USA Patriot Act. That law, passed one month after the terrorist attacks against New York and the Pentagon, made it easier for U.S. investigators to employ secret wiretaps and physical searches under a 1978 surveillance law.

The changes permit such wiretaps when collecting information about foreign spies or terrorists as “a significant purpose,” rather than “the purpose,” of an investigation. Critics at the time said they feared the government might use the change as a loophole to employ espionage wiretaps in common criminal investigations.

The Justice Department’s legal papers, filed Wednesday night, responded to questions raised Sept. 9 by the appeals panel that suggest some skepticism about the Bush administration’s arguments.

The appeals judges wanted to know why they should disregard a 1980 ruling requiring government to show that its “primary purpose” in using a secret wiretap is to collect espionage information, not build a criminal case.

Justice lawyers argued that such a requirement could allow terrorists and spies to escape the attention of investigators.

” ...[T]here is a strong argument that the ‘primary purpose’ test is too strict,” Justice lawyers wrote.