Fading freedoms.

Byline: The Register-Guard

When Congress approved the Foreign Intelligence Surveillance Act in 1978, it drew a sharp line between information collected for the distinctly different purposes of protecting national security and fighting ordinary crime.

The line was no arbitrary whim. Lawmakers recognized that the act allows wiretaps and surveillance orders in espionage and terrorism cases under far more lenient standards than the Constitution allows in traditional criminal investigations. The dividing line was intended to ensure that prosecutors would not use the act to bypass federal courts and handle criminal cases in complete secrecy - a secrecy that would have deprived suspects of basic constitutional protections.

Now that critical line has been blurred - rather, erased - by the super-secret Foreign Intelligence Surveillance Court of Review, weakening Fourth Amendment protections against unreasonable search and seizure.

The review court overturned an earlier lower FISA court ruling that identified 75 cases in which the FBI improperly crossed the line of separation, obtaining permission for intelligence wiretaps for the use in routine criminal investigations and prosecutions.

The nearly invisible lower court took the unusual step of going public with its decision after U.S. Attorney General John Ashcroft argued that federal investigators should be allowed to routinely 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.

As alarming and audacious as this request was, the three federal appeals court judges on the review court unanimously agreed this week that the requested change in surveillance rules is constitutional. That's because the USA Patriot Act, which Congress rushed through with inadequate scrutiny or debate after Sept. 11, changed the rules under which FISA warrants are issued, giving the government authority to decide, in pursuing suspects, whether to use a regular criminal wire tap or take the FISA shortcut.

The review court's decision, which cannot be appealed to the U.S. Supreme Court, should set off alarm bells in Congress. Such expanded search-and-seizure authority - and the minimizing of the role of civilian courts in protecting the Fourth Amendment rights of citizens - should prompt swift corrective action by lawmakers, especially when viewed in the context of the many other new powers the government has assumed since Sept. 11. They include the ability to try suspected terrorists in military tribunals, and to hold U.S. citizens indefinitely without judicial review as "enemy combatants."

Congress, which so far has shown little appetite for standing up the the Bush administration's steamrolling of the Bill of Rights, should revise the dangerously flawed USA Patriot Act. The alternative is a new era of unprecedented government spying on Americans.