Ann Beeson of the ACLU said:
"We are deeply disappointed with the decision, which suggests that this special court exists only to rubberstamp government applications for intrusive surveillance warrants."
Beeson argues that the ruling means the Attorney General can suspend search and seizure protections found in the US Constitution "in order to listen in on phone calls, read e-mails, and conduct secret searches of Americans' homes and offices."
At issue is whether the Constitution and the USA Patriot Act adopted by Congress after the September 11th terrorist attacks permit the Government to use looser foreign intelligence standards to conduct criminal investigations in the US.
Last May, the Foreign Intelligence Surveillance Act court (FISA) made public a unanimous decision rejecting the government's bid for expanded spying powers. After the Justice Department appealed, the ACLU was granted permission to file a friend-of-the-court brief in the appeals court, together with other civil liberties groups including the Electronic Frontier Foundation (EPIC).
The ACLU said it is examining the new decision and considering how to bring the case before the Supreme Court and asking Congress to clarify through legislation that it did not authorise the Justice Department to use FISA's looser surveillance standards in ordinary criminal cases.
"This is a major Constitutional decision that will affect every American's privacy rights, yet there is no way anyone but the government can automatically appeal this ruling to the Supreme Court," Beeson said. "Hearing a one-sided argument and doing so in secret goes against the traditions of fairness and open government that have been the hallmark of our democracy."
The FISA court and the Court of Review were created under a law passed by Congress in 1978, which authorises government wiretap requests in foreign intelligence investigations. Under these procedures, all hearings and decisions are conducted in secret.
Although the ACLU and its coalition partners were allowed to file a friend-of-the-court brief in support of the lower court ruling, they were not allowed to participate in the oral argument before the Review Court that resulted in this week's decision, and they are not automatically entitled to submit an appeal to the US Supreme Court.
The court's 56-page decision is at:
www.cadc.uscourts.gov/common/newsroom/02-001.pdf