We're talking about the appeals court for the secret FISA (Foreign Intelligence Security Act) Court.

When we last left off on August 22, the secret court had taken the unprecedented step of making public its scathing May, 2002 written opinion on the Justice Department's position that the Patriot Act allowed for the crumbling of the wall of separation between federal prosecutors and intelligence gatherers.

In today's Legal Times, Vanessa Blum reports at length on the controversy, raising some interesting points of concern.

Chief among them, the appeal is one-sided. Only the Justice department is represented. The Court is "designed to operate in secrecy and to hear arguments only from the executive branch." There is no one to balance its position from the other side.

In addition, "Presumably, only the Bush administration would have standing to appeal the review court's decision to the U.S. Supreme Court. "

The three judge appeals court is meeting for the first time. How come there haven't been any prior cases?

"The FISA review court was created by Congress along with the Foreign Intelligence Surveillance Court in 1978 to authorize search and surveillance warrants for foreign intelligence targets. The review court has never convened because the lower court, known as the FISA court, has never turned down a government surveillance request. The court has approved approximately 13,000 applications since its inception. And just once, in 1997, the government withdrew a request that the court had found deficient. "

The issue the appeals court will be deciding is this:"Does the USA Patriot Act remove or merely loosen previous constraints on the coordination between prosecutors and intelligence gatherers."

Many groups would like to file an amicus (friend of court) brief with the court on the issue. But there is no legal process by which they can intervene to do so.

Who's on this appeals court? "The review panel is now made up of three senior judges: Ralph Guy of the 6th U.S. Circuit Court of Appeals, Edward Leavy of the 9th Circuit, and Laurence Silberman of the D.C. Circuit. "

Law Professor Jonathan Turley is highly critical of the process, and we share in his concerns. He says, "To call this a court of appeals is to stretch the conventional definition of an appeals process....In a real court of appeals you would have a collection of opposing views. You would also have an argument that would occur in public so citizens could judge the merits of the government's position."

What's the big deal about this? In a nutshell, the FISA court was created to allow officials to obtain evidence pertaining to intelligence activities upon a less stringent showing than is required to get a search or surveillance warrant for criminal law violations. It required that the primary purpose of any application be to obtain intelligence information.

Along comes the draft of the Patriot Act. Ashcroft initially requested that the requirement that intelligence gathering be the primary purpose of the application be reduced to simply "a purpose" from "the primary purpose."

Congress balked and a compromise was worked out. The final Patriot Act language (which is now law) requires FISA court warrants be issued only for applications that allege intelligence gathering is a "significant purpose" of the request.

Ashcroft's twisted interpretation of this change is that law enforcement purposes can now be the primary purpose of a FISA warrant request. And in May, 2002, he approved guidelines providing that prosecutors may "advise intelligence officials on the initiation, operation, continuation, or expansion of FISA searches or surveillance."

The lower FISA Court cried foul, finding that "such extensive collaboration would amount to law enforcement 'directing FISA surveillances and searches from start to finish,' which it considers illegal. "

The reason for the appeal of the FISA court's ruling is that "the FISA court based its decision on peripheral provisions of FISA left unchanged by the Patriot Act. The Justice Department asserts that FISA surveillance can now be used more extensively for law enforcement purposes" as a result of the new Patriot Act language.

So the never-before used appeals court has to decide the issue. With only the Justice Department allowed to present its case before it. And no one arguing against its position.

"Civil liberties advocates call the Justice Department's position 'a bait and switch.'" According to Turley, "The whole point of that compromise [with Congress] was to deny use of FISA in investigations that were principally law enforcement. After agreeing to compromise in congressional proceedings, they went on in secret to implement what was originally refused by Congress."

We hope this is clear. It's a complicated issue but the result is that once again Justice is attempting an end-run around our contstitutional right to be free from unreasonable searches and seizures and the Fourth Amendment's and Title III's strict warrant requirements.

In other words, if the government gets a FISA court warrant, they don't have to show either probable cause of the commission of a crime or probable cause that evidence of a crime is likely to be uncovered by the intrusion. In a criminal court, such a showing would have to be made before the government could search our homes or businesses or wiretap our phones.

Which brings us back to, what kind of appeal will this be with no one to argue against the Justice Department?

Certainly not a fair one.