News Release ~ 09/27/2002

NACDL files brief supporting court''s decision to limit relaxed searches to foreign intelligence cases

DOJ interpretation of USA PATRIOT Act would circumvent Fourth Amendment 

Washington, DC (September 27, 2002) -- The National Association of Criminal Defense Lawyers filed a brief today asking the appeals court which operates under the Foreign Intelligence Surveillance Act to affirm the decision of the lower FISA court that tends to limit the act''s relaxed search standard to cases dealing with foreign intelligence.

John Cline, an Albuquerque criminal defense lawyer who authored the brief on behalf of NACDL, says the Justice Department''s interpretation of USA PATRIOT Act provisions which amended FISA deprives ordinary citizens of Fourth Amendment protections.

"FISA was designed to allow a lower standard for searches in foreign intelligence cases," said Cline. "Previously, FISA searches, which do not require traditional warrants based on probable cause, took place only under the direction of foreign intelligence agents. Criminal investigators were called in only when the searches led to incidental discovery of ordinary criminal activity.

"Now, the Justice Department''s interpretation of the amendments to FISA allow supervision of the relaxed-standard searches by regular criminal investigators if they can claim any non-trivial connection to foreign intelligence," Cline said. "It allows for greatly broadened use of FISA searches in cases where normal Fourth Amendment protections should apply."

To ordinary citizens, particularly those who do business internationally, that means that criminal investigators can eavesdrop on their conversations or search their businesses, homes, phone records, and e-mail correspondence without the requirement that investigators convince a judge that there is some reason to suspect criminal activity, said Joshua Dratel, a co-chair of NACDL''s Amicus Curiae Committee who assisted on the brief. "There might as well not be a Fourth Amendment for people who have international dealings." 

Cline can be reached at (505)842-9960, or by e-mail at jdc@fbdlaw.com. Dratel is a criminal defense lawyer in New York City, and can be reached at (212)732-0707 or (917)754-1696 (cell). The brief can be accessed at www.nacdl.org under News & Issues by clicking the Fighting Terrorism/Protecting Liberty icon or by linking through the electronic version of this release.

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's approximately 9,000 direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.

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