Justice Department to appeal intelligence court's decision

The Justice Department said Friday that it would appeal a decision by the secret Foreign Intelligence Surveillance Court that had denied the Bush administration request in March to permit prosecutors to direct the conduct of foreign surveillance operations.

The appeal will be the first ever since the court's establishment under the 1978 Foreign Intelligence Surveillance Act, and Justice officials said the case is necessary to ensure their ability to monitor and prevent terrorist actions. One key element of last October's anti-terrorism law eased the rules under which foreign intelligence information could be shared with criminal prosecutors.

"We want to not have these artificial walls between the intelligence side and the criminal side," spokeswoman Barbara Comstock said. "The court effectively held that the [anti-terrorism law] made no change in the department's ability to coordinate between intelligence and law enforcement purposes."

In the May 17 opinion, publicly released on Thursday by the Senate Judiciary Committee, the seven judges then sitting on the surveillance court said stricter limits are needed on the executive branch's ability to share electronic surveillance information.

Attorney General John Ashcroft proposed new surveillance rules in March, but Royce Lamberth, then presiding judge of the court, said those rules "eliminated the bright line in [prior] procedures prohibiting direction and control by prosecutors." All seven judges endorsed the decision.

Lamberth cited Fourth Amendment concerns about citizens' privacy under FISA if strict "minimization procedures" were not imposed. "The extensive acquisition of information concerning U.S. persons through secretive surveillances and searches authorized under FISA, coupled with broad power of retention and information sharing with criminal prosecutors, weigh heavily on one side of the scale which we must balance," Lamberth wrote.

He also rebuked Justice Department officials in the Clinton administration for failing to abide by previous minimization guidelines.

The appeal-which now goes to a panel of three appeals-court judges appointed by Supreme Court Chief Justice William Rehnquist-could trigger the first constitutional challenge of the anti-terrorism law enacted last October.

The court, which meets in secret to consider Justice requests to wiretap suspected foreign agents, had never before published an opinion. But in a letter to Sens. Patrick Leahy, D-Vt., Charles Grassley, R-Iowa, and Arlen Specter, R-Pa., Judge Colleen Kollar-Kotelly-now the presiding judge of an expanded, 10-member court-said she also would release any future unclassified opinions or orders.

Leahy released a set of correspondence between him and Kollar-Kotelly in which he appealed to her for information that the Justice Department failed to provide the Senate.

Although Kollar-Kotelly rejected a proposed meeting between court judges and senators, she did release 11 rules of the court, as well as four Justice memoranda references in the May opinion.