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In May the Foreign Intelligence Surveillance Court (FISC), rejected the US government's efforts to expand its spying powers. The Department of Justice appealed against the decision.
Despite new rules stipulated under the Patriot Act, which US Congress passed shortly after the 11 September terrorist attacks last year, Attorney general John Ashcroft is pushing for broader surveillance powers that would allow the DOJ to listen in on phone calls, read e-mail and conduct secret searches.
In rejecting Ashcroft's bid, the FISC said that the DOJ's efforts eliminated federal protections against letting prosecutors direct intelligence investigations and use them for criminal prosecutions.
The FISC decision not only puts the spotlight on what some believe are excessive efforts by the DOJ to broaden its domestic spying powers, but has brought the court's existence to the public's attention. The FISC and its Court of Review were created under a law passed by Congress in 1978 authorising federal wiretap requests in foreign intelligence investigations. Under the law, their proceedings are kept secret.
The FISC Court of Review is now charged with weighing whether these new powers are permitted under the Constitution and the Patriot Act.
For the civil liberty groups the case is already clear. In their brief, they say that the new powers would jeopardise citizens' First Amendment rights to engage in lawful public dissent, as well as trample warrant, notice and judicial review rights under the Fourth and Fifth Amendments.
"The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power," the brief says.
Although the groups do not know whether the court will accept their brief, they said that they hope it will be taken into consideration before a ruling is made.
The court already held a secret meeting on the appeal earlier this month and the DOJ is due to file a second brief on the appeal tomorrow.
The civil liberty groups lobbying for rejection of the appeal include the Center for Democracy and Technology, the American Civil Liberties Union, the Electronic Frontier Foundation and the Electronic Privacy Information Center.