Rules of court limit who can challenge Patriot Act provision

By Dan Eggen
The Washington Post

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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 subpoenas issued by the court.

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 rules in the FBI's possession, Jaffer said.

A duty of the court is to oversee one of the most criticized 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 allows the FBI to seize library records while forbidding the library to publicly reveal the search.

Attorney General John Ashcroft said in September 2003 that the section had never been used, but recent court filings indicate the FBI might have sought to use it since then.

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.

In related developments

Ismael Selim Elbarasse, described as a high-ranking Hamas operative, was freed yesterday on $1 million bond in federal court in Baltimore, but must appear before a federal grand jury in Chicago probing the Palestinian group's financing. Elbarasse was arrested after police pulled him over Aug. 20 just west of the Chesapeake Bay Bridge after spotting his wife filming the structure with a video camera.

Neither Elbarasse nor his wife was charged with any wrongdoing, but Maryland authorities held him after discovering a material-witness warrant had been issued for him in Illinois the same day. Federal officials in Chicago want Elbarasse to appear before a grand jury probing the financing of Hamas, which the government has designated a terrorist organization.

A federal appeals court yesterday delayed for a month a hearing in the case of Yaser Esam Hamdi, a U.S. citizen born in Louisiana to Saudi parents, captured in Afghanistan in 2001 and held without charges ever since.

Federal officials said an agreement to release Hamdi that could send him back to Saudi Arabia, where he grew up, was imminent. But, the officials said, the sensitive nature of the case limited how quickly a settlement could be reached.

The Supreme Court ruled in June that enemy combatants may not be indefinitely detained without legal rights. The ruling gave Hamdi the right to fight his detention in federal court, leading to the release negotiations.

Hamdi contends he is a civilian who never took up arms against the United States, and that he was trying to get out of Afghanistan when he was captured.

The U.S. Census Bureau said yesterday it is ending a practice of routinely turning over detailed information about Arabs and other minorities to anti-terrorism officials without high-level approval. The Census Bureau revealed Aug. 13 that it had been reporting demographic data about Arab Americans to a Homeland Security agency.

That drew criticism from some advocacy groups, which said it undermined the public's trust.

Now, data requests from law-enforcement and intelligence agencies must be approved by one of eight associate directors, the second-highest-ranking officials in the Census Bureau.

The September 11th Fund will close in December, having awarded more than $500 million in grants to 100,000 people affected by the 2001 terrorist attacks.

The fund, created by the New York Community Trust and United Way of New York City, was envisioned as a three- to five-year program, fund CEO Carol Kellermann said yesterday.

The fund focused on recovery and rebuilding, collecting more than $540 million — the bulk in the four months after the attacks, Kellermann said.

A federal Sept. 11 Victim Compensation Fund finished processing claims in June; more than 5,500 people are expected to share $6.9 billion.

Additional items from The Associated Press