The Foreign Intelligence Surveillance Court was created by Congress in 1978, a post-Watergate reform enacted in response to the domestic spying scandals of the Nixon White House. The rotating panel of seven federal judges secretly reviews Justice Department requests to employ wiretaps and other forms of surveillance against suspected foreign espionage agents within the United States while it ensures that the higher standards for protecting the civil liberties of those suspected of domestic crime are maintained.

Few Americans knew of this secret court until last week, when it took the unprecedented step of making public a blistering report finding that the Justice Department’s FBI misrepresented the facts in more than 75 applications for espionage and terrorism warrants, with nearly all of the fudging done by the Clinton administration. The Bush administration, of course, must deal with the consequences, which is why it took the unprecedented step of appealing the court’s unanimous ruling it claims will severely hamper post Sept. 11 investigations.

The legal conflict is over what might be called a technicality. The Foreign Intelligence Surveillance Act that created the court 24 years ago states that the shortcut around civil liberties is available only when the evidence is being gathered primarily for intelligence purposes and assumes the decision on whose wire to tap will be made by intelligence officials. The Patriot Act enthusiastically passed by Congress after Sept. 11 states that intelligence must merely be a significant purpose of the surveillance and allows prosecutors and police in on the decision-making.

The core issue is hardly a technicality. Protecting citizens from government intrusion was a high priority of the founders of this country: They devoted the first 10 amendments to the Constitution to that end; one expressly prohibits unreasonable searches and requires specifics, including probable cause, from officials seeking search warrants. Nor is the question academic – the Surveillance Court grants about 1,000 of these secret surveillance requests a year (and that was before Sept. 11). Only once in its entire history has it rejected a Justice Department request.

As for resolving the technicality, the Justice Department, in its appeal, appears to be correct – the Patriot Act lowered the standards for obtaining intelligence warrants. Beyond that, however, the department has a troubling taste for secrecy and an aversion to accountability that strains the constitutional protections the framers worked so hard to create. Which is where the Surveillance Court, in its opinion accompanying this ruling, is absolutely correct – unless Congress intended a war on terrorism to be an attack upon civil liberties, it must reopen the Patriot Act and make the appropriate changes. Re-reading the Fourth Amendment would be a good place to start.