Secret Court Poses Challenges

• Non-Government Litigants Lack Access, Ways to Influence Cases

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. 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. 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. [more ]