Catch-22: Secret Court Poses Challenges But Litigants Lack Access.

[Guest guest]

These guys are governing by the book...... Catch-22, 1984, Fahrenheit 451,

Animal Farm, etc. Read em and find out. F.

 

 

http://www.washingtonpost.com/wp-dyn/articles/A45166-2004Aug29.html

 

Secret Court Poses Challenges

Non-Government Litigants Lack Access, Ways to

Influence Cases

 

By Dan Eggen

Washington Post Staff Writer

Monday, August 30, 2004; Page A21

 

The Justice Department has argued in a recent court

case that librarians, booksellers and other businesses

can easily challenge a controversial provision of the

USA Patriot Act by appealing to a super-secret court

that approves surveillance of terrorists and foreign

intelligence agents.

 

The only problem, according to a document released

last week, is that the same court does not allow

anyone but government attorneys and agents inside its

doors.

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The rules governing the Foreign Intelligence

Surveillance Court also do not include procedures for

outside litigants to file memorandums or otherwise

influence a case, according to a copy of the rules

obtained by the American Civil Liberties Union.

 

Jameel Jaffer, an ACLU staff lawyer, said the court

rules " do not seem to contemplate the possibility that

anyone other than a government attorney may appear

before the court, " nor do they allow for outside

attorneys to file motions to quash the subpoenas the

court issues.

 

The surveillance court was established as part of the

Foreign Intelligence Surveillance Act (FISA) of 1978

and has operated in almost total secrecy since then.

Justice Department statistics provided to Congress

indicate the court approved more than 1,700 searches

and seizures last year, eclipsing the number of

traditional criminal wiretaps authorized by local and

federal courts.

 

The five-page list of rules gives a rare glimpse into

the inner workings of the FISA court, outlining the

powers available to each judge and the procedures for

applying for warrants and other operational details.

The rules were provided to the ACLU by the FBI, which

indicated they were the most recent FISA court rules

in the agency's possession, Jaffer said.

 

A duty of the court is to oversee one of the most

controversial provisions of the Patriot Act, Section

215, which allows the FBI to obtain " tangible things "

from businesses during counterterrorism and

counterintelligence investigations. The broadly worded

section has raised the ire of librarians, in

particular, because it would allow the FBI to seize

library records while forbidding the library to

publicly reveal the search.

 

Attorney General John D. Ashcroft said in September

that the section had never been used, but recent court

filings indicate the FBI may since have sought to use

it.

 

In a Michigan lawsuit filed by the ACLU, Justice

attorneys have argued that anyone targeted under the

provision would have the ability to contest the issue.

" If and when a Section 215 order is served on these

plaintiffs, they will have ample opportunity to

challenge it before the court that issues the order

(i.e. the FISA Court), " the attorneys wrote in a July

brief.

 

But the court's rules say that only attorneys

empowered by the attorney general or government agents

may appear before it, and there is no mention of

accepting outside motions or briefs.

 

A Justice Department spokesman declined to comment

last week, citing ongoing litigation.

 

Patrice McDermott, deputy director of government

relations for the American Library Association, said

the government's arguments " appear to be a red

herring. "

 

" They keep saying you can challenge it, but they have

never indicated how anyone could actually do so, " she

said.