Crossing the line.

Byline: The Register-Guard

Until last month, most Americans were unaware of the existence of the Foreign Intelligence Surveillance Court. That was by design - the secret court was established by Congress to authorize and monitor the federal government's wiretaps and searches of espionage and terrorism suspects.

When a secret court pokes its head above ground and issues a strong public warning, Americans should stop and listen. That happened recently when the court released a scathing opinion to Congress taking U.S. Attorney General John Ashcroft to task and revealing dozens of secret violations by the FBI and Justice Department.

The opinion identified a total of 75 cases in which federal investigators had improperly investigated ordinary crimes under the Foreign Intelligence Surveillance Act, which Congress approved in 1978 to establish the legal groundwork for the collection of national security information. The court was established under the act to make certain that the feds wouldn't blur the line dividing national security and conventional crime investigations.

According to the FISA court, Ashcroft and his gung-ho crew of civil rights busters at Justice not only blurred the line, they trampled it into the mud. The court said federal investigators made false statements to gain permission to use intelligence wiretaps and obtain intelligence information for use in ordinary criminal prosecutions.

In fairness, it should be noted that some of the violations cited by the court occurred during the Clinton administration; Ashcroft doesn't have a monopoly on civil liberties encroachments. The court cited one case in which FBI Director Louis Freeh, a Clinton appointee, misrepresented the target of a wiretap as an intelligence suspect when, in fact, he was a criminal suspect.

But it was Ashcroft's alarming and audacious request to change the primary role of the court from foreign intelligence to spying on citizens that prompted the court to sound the alarm. If the court meekly acceded to the request, it could have resulted in criminal cases routinely bypassing federal courts and being handled in complete secrecy - a secrecy that would have deprived suspects of basic constitutional protections.

In a subsequent appeal, Ashcroft said the court failed to acknowledge that the USA Patriot Act, passed in response to the Sept. 11 attacks, changed the standard that lawyers must meet when seeking to monitor criminal suspects. Now, Ashcroft argued, federal investigators may share information between criminal and terrorism investigators and conduct surveillance of people in cases in which law enforcement, not foreign intelligence, is the primary focus..

Ashcroft made his appeal to a special panel that reviews decisions of the Foreign Intelligence Surveillance Court - yet another secret court that most people didn't know existed. That panel, whatever and wherever it is, should uphold the FISA court's public rebuke of an attorney general and its ruling that he is attempting to seize authority that has not been granted to him by either the Constitution or Congress.