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In re All Matters Submitted to the Foreign Intelligence Surveillance Court

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Citation Edit

In re All Matters Submitted to the Foreign Intelligence Surveillance Court, 218 F. Supp.2d 611 (U.S. Foreign Intell. Surveil. Ct. 2002) (full-text), rev'd, In re Sealed Case, 310 F.3d 717 (U.S. Foreign Intelligence Surveillance Court of Review 2002).

Foreign Intelligence Surveillance Court Edit

On May 17, 2002, the U.S. Foreign Intelligence Surveillance Court (FISC) issued an opinion and order written by the then Presiding Judge of the court, U.S. District Judge Royce C. Lamberth. All of the other judges then on the FISC concurred in the order. The opinion was provided by the current Presiding Judge of the FISC, U.S. District Judge Colleen Kollar-Kotelly, to the Senate Judiciary Committee in response to a July 31 letter from Senator Leahy, Senator Grassley and Senator Specter.[1] On August 22, 2002, the unclassified opinion was released to the public by Senator Leahy, Senator Grassley and Senator Specter.

In the memorandum opinion and order, the FISC considered a motion by the U.S. Department of Justice "to vacate the minimization and 'wall' procedures in all cases now or ever before the Court, including this Court's adoption of the Attorney General's July 1995 intelligence sharing procedures, which are not consistent with new intelligence sharing procedures submitted for approval with this motion."[2] In its memorandum and accompanying order, the FISC granted the Department of Justice's motion, but modified the second and third paragraphs of section II.B of the proposed minimization procedures.[3]

Foreign Intelligence Surveillance Court of Review Edit

NOTE: The FISC's May 17th memorandum opinion and order were not appealed directly. However, the Justice Department sought review in the U.S. Foreign Intelligence Court of Review (Court of Review) of a FISC order authorizing electronic surveillance of an agent of a foreign power, subject to restrictions flowing from the May 17th decision, and of an FISC order renewing that surveillance subject to the same restrictions.]

The Court of Review, in a lengthy per curiam opinion issued on November 18, 2002, reversed and remanded the FISC orders. In so doing the Court of Review emphasized that the May 17th decision, although never appealed, was "the basic decision before us and it [was] its rationale that the government challenge[d]."[4]

The Court of Review concluded that "FISA, as amended by the Patriot Act, supports the government's position, and that the restrictions imposed by the FISA court are not required by FISA or the Constitution."[5]

The Court of Review began its analysis by articulating its view of the May 17th FISC decision. The Court of Review stated that the FISC appeared to proceed in its opinion from the assumption that FISA constructed a barrier between counterintelligence/intelligence officials and law enforcement officers in the Executive Branch, but did not support that assumption with any relevant language from the statute.[6]

The Court of Review opined that this "wall" was implicit in the FISC's "apparent" belief that "it can approve applications for electronic surveillance only if the government's objective is not primarily directed toward criminal prosecution of the foreign agents for their foreign intelligence activity," while referencing neither statutory language in FISA nor USA PATRIOT Act amendments, which the government argued altered FISA to permit an application even if criminal prosecution was the primary goal.[7] Instead, the Court of Review noted that the FISC relied upon its statutory authority to approve "minimization procedures" in imposing the restrictions at issue.

The Court of Review stated that the government raised two main arguments: First, DOJ contended that the restriction, recognized by several courts of appeals[8] prior to the enactment of the USA PATRIOT Act, that FISA could only be used if the government's primary purpose in gathering foreign intelligence information was not criminal prosecution, was not supported by the statutory language or the legislative history of FISA. This argument was not presented to the FISC, but the Court of Review indicated that it could entertain the argument, because proceedings before the FISC and before the Court of Review were ex parte.157 Second, the government argued that, even if the primary purpose test was appropriate prior to the passage of the USA PATRIOT Act, the amendments made by that act eliminated that concept.

The government also argued that the FISC’s interpretation of the minimization procedures provisions misconstrued those provisions and amounted to "an end run" around the USA PATRIOT Act amendments. DOJ argued further that the FISC minimization procedures so intruded into the Department’s operations as to be beyond the constitutional authority of Article III judges. Finally, DOJ contended that application of the primary purposetest in a FISA case was not constitutionally compelled under the Fourth Amendment.

The Court of Review noted that, as enacted in 1978, FISA authorized the grant of an application for electronic surveillance to obtain foreign intelligence information if there is probable cause to believe that “the target of the electronic surveillance is a foreign power or an agent of a foreign power,”158 and that “each of the facilities or places at which the surveillance is directed is being used, or is about to be used by a foreign power or an agent of a foreign power.”159 The reviewing court focused upon the close connection between criminal activity and the definitions of "agent of a foreign power" applicable to United States persons contained in 50 U.S.C. §§1801(b)(2)(A) and (C), to wit: “any person who ‘knowingly engages in clandestine intelligence activities . . . which activities involve or may involve a violation of the criminal statutes of the United States,’ or ‘knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor.’”160 The court noted further that FISA defined “international terrorism” to mean “activities that ‘involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or any State.’”161

“Sabotage,” as defined by FISA, covers activities that “‘involve a violation of chapter 105 of [the criminal code] [18 U.S.C. §§ 2151-2156], or that would involve such a violation if committed against the United States.’”162 For purposes of its opinion, the Court of Review described these types of crimes as “foreign intelligence crimes.”163

The court observed that, as passed in 1978, 50 U.S.C. §1804 required a national security official of the Executive Branch, usually the FBI Director,164 to certify that “the purpose” of the electronic surveillance under FISA was to obtain foreign intelligence information, and opined that “it is virtually impossible to read the 1978 FISA to exclude from its purpose the prosecution of foreign intelligence crimes, most importantly because, as we have noted, the definition of an agent of a foreign power — if he or she is a U.S. person — is grounded on criminal conduct.”165 It found further support for its view that “foreign intelligence information” included evidence of “foreign intelligence crimes” from the legislative history as reflected in H.Rept. 95-1283 and S.Rept. 95-701, 166 while acknowledging that the House report also stated that FISA surveillances “are not primarily for the purpose of gathering evidence of a crime. They are to obtain foreign intelligence information, which when it concerns United States persons must be necessary to important national concerns.”167 The Court of Review regarded the latter statement as an observation rather than a proscription.168

The Court of Review saw the U.S. Court of Appeals for the Fourth Circuit’s decision in United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980), a decision based upon constitutional analysis rather than FISA provisions, as the springboard for the “primary purpose” test cases interpreting FISA and upholding FISA surveillances against Fourth Amendment challenges.169 After reviewing a number of the FISA cases applying the primary purpose test, the Court of Review concluded that a dichotomy between foreign intelligence gathering and criminal investigations implicit in the application of the primary purpose test was not statutorily compelled. The court found that FISA, as originally passed, did not “preclude or limit the government’s use or proposed use of foreign intelligence information, which included evidence of certain kinds of criminal activity, in a criminal prosecution.”170 In addition, the Court of Review, relying on arguments of the Department of Justice and the language of subsection 1805(a)(5), interpreted 50 U.S.C. §1805 of FISA as originally enacted as not contemplating that the [FISC] would inquire into the government’s purpose in seeking foreign intelligence information.171

Further, the court rejected the FISC’s characterization of the Attorney General’s 1995 procedures, as modified and augmented in January 2000 and August 2001, as minimization procedures. These procedures were formally adopted by the FISC as minimization procedures defined in 50 U.S.C. §§ 1801(h) and 1821(4) in November 2001, after passage of the USA PATRIOT Act, and were incorporated in all applicable orders and warrants granted since their adoption by the FISC. On March 6, 2002, the Attorney General adopted new “Intelligence Sharing Procedures,” intended to supercede prior procedures, to “allow complete exchange of information and advice between intelligence and law enforcement officials,” to “eliminate the ‘direction and control’ test,” and to permit “exchange of advice between the FBI, OIPR, and the Criminal Division regarding ‘the initiation, operation, continuation, or expansion of FISA searches or surveillance.”172 The following day, the government filed a motion with the FISC advising the court of the Attorney General’s adoption of the 2002 procedures, seeking to have that court adopt the new procedures in all matters before the FISC and asking the court to vacate its orders adopting the prior procedures as minimization procedures and imposing “wall” procedures in certain types of cases. That motion led to the FISC decision to adopt the 2002 procedures with modifications that was, by reference, before the Court of Review in its November 18, 2002, decision.

The Court of Review characterized the FISC’s adoption of the Justice Department’s 1995 procedures, as modified and augmented, as minimization procedures as follows:

Essentially, the FISA court took portions of the Attorney General’s

augmented 1995 Procedures — adopted to deal with the primary purpose standard — and imposed them generically as minimization procedures. In doing so, the FISA court erred. It did not provide any constitutional basis for its action — we think there is none — and misconstrued the main statutory provision on which it relied. The court mistakenly categorized the augmented 1995 Procedures as FISA minimization procedures and then compelled the government to utilize a modified version of those procedures in a way that is clearly inconsistent with the statutory purpose.173

The Court of Review interpreted “minimization procedures” under 50 U.S.C. §1801(h) to be designed to protect, as far as reasonable, against the acquisition, retention, and dissemination of nonpublic information which is not foreign intelligence information. In light of the Court of Review’s interpretation of “minimization procedures” under 50 U.S.C. §1801(h), the court found no basis for the FISC’s reliance upon that section “to limit criminal prosecutors’ ability to advise FBI intelligence officials on the initiation, operation, continuation, or expansion of FISA surveillances to obtain foreign intelligence information, even if such information includes evidence of a foreign intelligence crime.”174

In addition, the Court of Review found that the FISC had misconstrued its authority under 50 U.S.C. § 1805 and misinterpreted the definition of minimization procedures under 50 U.S.C. §1801(h). The Court of Review expressed approbation for the Government’s argument that the FISC, in imposing the modified 1995 procedures upon the Department of Justice as minimization procedures, “may well have exceeded the constitutional bounds that restrict an Article III court. The FISA court asserted authority to govern the internal organization and investigative procedures of the Department of Justice which are the province of the Executive Branch (Article II) and the Congress (Article I).”175

The Court of Review deemed the FISC’s “refusal . . . to consider the legal significance of the Patriot Act’s crucial amendments [to be] error.”176 The appellate court noted that, as amended by the USA PATRIOT Act, the requirement in 50 U.S.C. §1804(a)(7)(B) that the Executive Branch officer certify that “the purpose” of the FISA surveillance or physical search was to gather foreign intelligence information had been changed to “a significant purpose.”177 The court noted that floor statements indicated that this would break down traditional barriers between law enforcement and foreign intelligence gathering,178 making it easier for law enforcement to obtain FISA court orders for surveillance or physical searches where the subject of the surveillance “is both a potential source of valuable intelligence and the potential target of a criminal prosecution.”179 The court noted that some Members raised concerns about the Fourth Amendment implications of this language change which permitted the Government to obtain a court order under FISA “even if the primary purpose is a criminal investigation.”180

Interestingly, although the Court of Review did not regard a dichotomy between foreign intelligence gathering and law enforcement purposes as necessarily implied by the 1978 version of 50 U.S.C. §1804(a)(7)(B), the court viewed the statutory change from “the purpose” to “a significant purpose” in the USA PATRIOT Act as recognizing such a dichotomy.181

The Court of Review disagreed with the FISC interpretation of the consultation authority under 50 U.S.C. §1806(k).182 The Court of Review saw this provision as one which reflected the elimination of barriers between law enforcement and intelligence or counterintelligence gathering, without a limitation on law enforcement officers directing or controlling FISA surveillances. “[W]hen Congress explicitly authorizes consultation and coordination between different offices in the government, without even suggesting a limitation on who is to direct and control, it necessarily implies that either could take the lead.”183

In analyzing the “significant purpose” amendment to 50 U.S.C. § 1804(a)(7)(B), the Court of Review deemed this a clear rejection of the primary purpose test. If gathering foreign intelligence information is a significant purpose, another purpose such as criminal prosecution could be primary.184Further, the court found that the term “significant” “imposed a requirement that the government have a measurable foreign intelligence purpose, other than just criminal prosecution of even foreign intelligence crimes. . . . Although section 1805(a)(5) . . . may well have been intended to authorize the FISA court to review only the question whether the information sought was a type of foreign intelligence information, in light of the significant purpose amendment of section 1804, it seems section 1805 must be interpreted as giving the FISA court the authority to review the government’s purpose in seeking the information.”185 The Court of Review saw the “significant purpose” language as “excluding from the purpose of gaining foreign intelligence information a sole objective of criminal prosecution.”186 If the government, at the commencement of a FISA surveillance has not yet determined whether to prosecute the target, “[s]o long as the government entertains a realistic option of dealing with the agent other than through criminal prosecution, it satisfies the significant purpose test.”187 Under the Court of Review’s analysis:

If the certification of the application’s purpose articulates a broader objective

than criminal prosecution — such as stopping an ongoing conspiracy — and includes other potential non-prosecutorial responses, the government meets the statutory test. Of course, if the court concluded that the government’s sole objective was merely to gain evidence of past criminal conduct — even foreign intelligence crimes — to punish the agent rather than halt ongoing espionage or terrorist activity, the application should be denied.188

The court stated further that, while ordinary crimes may be intertwined with foreign intelligence crimes, the FISA process may not be utilized to investigate wholly unrelated ordinary crimes.189 The Court of Review emphasized that the government’s purpose as reflected in the Section 1804(a)(7)(B) certification is to be judged by the FISC on the basis of

{{Quote|. . .the national security officer’s articulation and not by a FISA court inquiry into the origins of an investigation nor an examination of the personnel involved. It is up to the Director of the FBI, who typically certifies, to determine the government’s national security purpose, as approved by the Attorney General or Deputy Attorney General. . . . That means, perforce, if the FISA court has reason to doubt that the government has any real non-prosecutorial purpose in seeking foreign intelligence information it can demand further inquiry into the certifying officer’s purpose — or perhaps even the Attorney General’s or Deputy Attorney General’s reasons for approval. The important point is that the relevant purpose is that of those senior officials in the Executive Branch who have the responsibility of appraising the government’s national security needs.”190

Turning from its statutory analysis to its examination of whether the statute, as amended, satisfied Fourth Amendment parameters, the Court of Review compared the FISA procedures with those applicable to criminal investigations of “ordinary crimes” under Supreme Court jurisprudence and under the wiretap provisions of Title III of the Omnibus Crime Control and Safe Streets Act. Relying upon Dalia v. United States, 441 U.S. 238, 255 (1979), the court indicated that in criminal investigations, beyond requiring that searches and seizures be reasonable, the Supreme Court has interpreted the Fourth Amendment’s warrant requirement to demand satisfaction of three criteria: a warrant must be issued by a neutral, detached magistrate; those seeking the warrant must demonstrate to the magistrate that there is probable cause to believe that the evidence sought will assist in a particular apprehension or conviction for a particular offense; and the warrant must describe with particularity the things to be seized and the place to be searched.191

The Court of Review compared the procedures in Title III with those in FISA, finding in some respects that Title III had higher standards, while in others FISA included additional safeguards. In both, there was provision for a detached, neutral magistrate. The probable cause standard in Title III for criminal investigations was deemed more demanding than that in FISA. Title III requires a showing of probable cause that a specific individual has committed, is committing, or is about to commit a particular criminal offense. FISA requires a showing of probable cause that the target of the FISA investigative technique is a foreign power or an agent of a foreign power. A foreign power is not defined solely in terms of criminal activity. In the case of a target who is a U.S. person, the definition of “agent of a foreign power” contemplates, in part, the involvement of or, in the case of clandestine intelligence activities for a foreign power, the possibility of criminal conduct. The court regarded the lesser requirement with respect to criminal activity in the context of clandestine intelligence activities as to some extent balanced by the safeguard provided by FISA’s requirement that there be probable cause to believe that the target is acting “for or on behalf of a foreign power.”192

With regard to the particularity requirement, as to the first element, Title III requires a finding of probable cause to believe that the interception will obtain particular communications regarding a specified crime. In contrast, FISA requires an official to designate the type of foreign intelligence information being sought and to certify that the information being sought is foreign intelligence information. When the target of the FISA investigation is a U.S. person, the standard of review applied by the FISC is whether there is clear error in the certification, a lower standard that a judicial finding of probable cause. While the FISC can demand that the government provide further information needed for the court to make its determination as to whether the certification is clearly erroneous, the statute relies also upon internal checks on Executive Branch decisions through the requirement that the certification must be made by a national security officer and approved by the Attorney General or Deputy Attorney General.

In connection with the second particularity element, Title III

. . . requires probable cause to believe that the facilities subject to surveillance are being used or are about to be used in connection with commission of a crime or are leased to, listed in the name of, or used by the individual committing the crime, 18 U.S.C. § 2518(3)(d), [while] FISA requires probable cause to believe that each of the facilities or places at which the surveillance is directed is being used, or is about to be used by a foreign power or agent [of a foreign power]. 50 U.S.C. §1805(a)(3)(B). . . . Simply put, FISA requires less of a nexus between the facility and the pertinent communications that Title III, but more of a nexus between the target and the pertinent communications.”193

The Court of Review also compared Title III to FISA with respect to necessity (both statutes require that the information sought is not available through normal investigative procedures, although the standards differ somewhat),194 duration of surveillance (30 days under Title III, 18 U.S.C. §2518(3)(c), as opposed to 90 days under FISA for U.S. persons, 50 U.S.C. §1805(e)(1)),195 minimization and notice. With respect to minimization, the Court of Review noted that Title III, under 18 U.S.C. §2518(5), required minimization of what was acquired, directing that surveillance be carried out “in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter.” FISA, on the other hand, “requires minimization of what is acquired, retained, and disseminated.”196 Observing that the FISC had found “in practice FISA surveillance devices are normally left on continuously, and the minimization occurs in the process of indexing and logging the pertinent communications,” the Court of Review deemed the reasonableness of such an approach to be dependent upon the facts and circumstances of each case:197

Less minimization in the acquisition stage may well be justified to the extent the intercepted communications are “ambiguous in nature or apparently involve[] guarded or coded language,” or “the investigation is focusing on what is thought to be a widespread conspiracy [where] more extensive surveillance may be justified in an attempt to determine the precise scope of the enterprise.” . . . Given the targets of FISA surveillance, it will often be the case that intercepted communications will be in code or a foreign language for which there is no contemporaneously available translator, and the activities of foreign agents will involve multiple actors and complex plots. . . .198

With respect to notice, the Court of Review observed that under 18 U.S.C. §2518(8)(d), Title III mandated notice to the target of the surveillance and, in the judge’s discretion, to other persons whose communications were intercepted, after the surveillance has expired. In contrast, under 50 U.S.C. § 1806(c) and (d), FISA does not require notice to a person whose communications were intercepted unless the government intends to use, disclose, or enter into evidence those communications or derivative information in a trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other federal, state or local authority against that person. The Court of Review noted that where such information was to be used against a criminal defendant, he or she would be given notice, and stated that “where such evidence is not ultimately going to be used for law enforcement,” Congress had observed that “[t]he need to preserve secrecy for sensitive counterintelligence sources and methods justifies elimination of the notice requirement.”199

In a footnote, the court noted that the Amici had drawn attention to the difference in the nature of the notice given the defendant or aggrieved person under Title III as opposed to FISA. Under Title III, a defendant is generally entitled under 18 U.S.C. § 2518(9) to obtain the application and order to challenge the legality of the surveillance. However, under FISA, the government must give the aggrieved person and the court or other authority (or in the case of a state or local use, the state or political subdivision must give notice to the aggrieved person, the court or other authority, and the Attorney General) of their intent to so disclose or use communications obtained from the surveillance or derivative information. In addition, under 50 U.S.C. §§ 1806(f) and (g), if the Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm national security, the U.S. district court may review in camera and ex parte the application, order, and other materials related to the surveillance, to determine whether the surveillance was lawfully authorized and conducted, whether disclosure or discovery is necessary, and whether to grant a motion to suppress. The Court of Review noted that these determinations are to be made by the U.S. district judge on a case by case basis, and stated that “whether such a decision protects a defendant’s constitutional rights in a given case is not before us.”200

Based on this comparison of Title III and FISA, the Court of Review found that “to the extent that the two statutes diverge in constitutionally relevant areas — in particular, in their probable cause and particularity showings — a FISA order may not be a ‘warrant’ contemplated by the Fourth Amendment. . . . Ultimately, the question becomes whether FISA, as amended by the Patriot Act, is a reasonable response based on a balance of the legitimate need of the government for foreign intelligence information to protect against national security threats with the protected rights of citizens.”201

The court framed the question as follows: “does FISA amplify the President’s power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government’s contention that FISA searches are constitutionally reasonable.” In its analysis, the court first considered whether the Truong case articulated the correct standard. Truong held that the President had inherent authority to conduct warrantless searches to obtain foreign intelligence information, but did not squarely address FISA. Starting from the perspective that Truong deemed the primary purpose test to be constitutionally compelled as an application of the Keith case balancing standard, the Court of Review found that the Truong determination that “once surveillance becomes primarily a criminal investigation, the courts are entirely competent to make the usual probable cause determination, and . . . individual privacy interests come to the fore and government foreign policy concerns recede when the government is primarily attempting to form the basis of a criminal investigation.”202

The Court of Review found that this analysis was based upon a faulty premise that in the context of criminal prosecution “foreign policy concerns recede,” and found further that the line the Truong court “sought to draw was inherently unstable, unrealistic, and confusing.”203 The Court of Review opined that in the context of counterintelligence, foreign policy concerns did not recede when the government moved to prosecute. Rather “the government’s primary purpose is to halt the espionage or terrorism efforts, and criminal prosecutions can be, and usually are, interrelated with other techniques used to frustrate a foreign power’s efforts.”204

In addition, the court found that the method of determining when an investigation became primarily criminal by looking to when the Criminal Division of the Department of Justice assumed the lead role, had led over time to the “quite intrusive organizational and personnel tasking the FISA court [had] adopted.”205 The court found the “wall” procedure to generate dangerous confusion and create perverse organizational incentives that discouraged wholehearted cooperation of “all the government’s personnel who can be brought to the task.”206 This the court suggested could be thought to be dangerous to national security and could be thought to discourage desirable initiatives.

In addition, the court saw the primary purpose test as administered by the FISC, “by focusing on the subjective motivation of those who initiate investigations . . . was at odds with the Supreme Court’s Fourth Amendment cases which regard subjective motivation of an officer conducting a search or seizure as irrelevant.” 207 Assuming arguendo that FISA orders were not warrants within the scope of the Fourth Amendment, the Court of Review returned to the question of whether searches under FISA are constitutionally reasonable. While the Supreme Court has not considered directly the constitutionality of warrantless government searches for foreign intelligence purposes, the balance between the government’s interest and personal privacy interests is key to an examination of this question. The Court of Review viewed Keith as suggesting that a somewhat relaxed standard might be appropriate in foreign intelligence crimes as opposed to ordinary crimes.208

The Court of Review then briefly touched upon the Supreme Court’s “special needs” cases, where the Court upheld searches not based on a warrant or individualized suspicion in extraordinary circumstances involving “special needs, beyond the normal need for law enforcement.” In City of Indianapolis v. Edmond, 531 U.S. 32, 42 (2000), the U.S. Supreme Court held that a highway check point program designed to catch drug dealers was not within the “special needs” exception to the requirement that a search be based upon individualized suspicion, because “the government’s ‘primary purpose’ was merely ‘to uncover evidence of ordinary criminal wrongdoing.’” The Court stated that “the gravity of the threat alone cannot be dispositive of questions concerning what means law enforcement officers may employ to pursue a given purpose.”209 The Court relied upon an examination of the primary purpose of the program, but not the motivations of individual officers, to determine whether the “special needs” standard had been met. The Supreme Court noted that an appropriately tailored road block could be used “to thwart an imminent terrorist attack.”210

After summarizing Edmond, the Court of Review emphasized that it is the nature of the threat or emergency that took the matter beyond the realm of ordinary crime control.211 It concluded that, while the gravity of the threat alone cannot be dispositive of the reasonableness of a search under the Fourth Amendment standard, it is a critical factor in the analysis. In its view, the “programmatic purpose” of FISA, “to protect the nation against terrorists and espionage threats directed by foreign powers,” was one which, from FISA’s inception, was distinguishable from “ordinary crime control.”212 The Court of Review also concluded that, “[e]ven without taking into account the President’s inherent constitutional authority to conduct warrantless foreign intelligence surveillance, we think the procedures and government showings required under FISA, if they do not meet the minimum Fourth Amendment warrant standards, certainly come close.”213 Applying the balancing test that it had drawn from Keith between foreign intelligence crimes and ordinary crimes, the Court of Review held surveillances under FISA, as amended by the USA PATRIOT Act, were reasonable and therefore constitutional. In so doing, however, the Court of Review

acknowledge[d] . . . that the constitutional question presented by this case — whether Congress’ disapproval of the primary purpose test is consistent with the Fourth Amendment — has no definitive jurisprudential answer. The Supreme Court’s special needs cases involve random stops (seizures) not electronic searches. In one sense, they can be thought of as a greater encroachment into personal privacy because they are not based on any particular suspicion. On the other hand, wiretapping is a good deal more intrusive than an automobile stop accompanied by questioning.214

The Court of Review reversed the FISC’s orders before it for electronic surveillance “to the extent they imposed conditions on the grant of the government’s applications, vacate[d] the FISA court’s Rule 11, and remand[ed] with instructions to grant the applications as submitted and proceed henceforth in accordance with this opinion.”215

U.S. Supreme Court Edit

50 U.S.C. §1803(b) provides that, where the Court of Review upholds a denial by the FISC of a FISA application, the United States may file a petition for certiorari to the United States Supreme Court. Since consideration of applications for FISA orders is ex parte, there is no provision in FISA for an appeal to the United States Supreme Court from a decision of the Court of Review by anyone other than the United States. Nevertheless, on February 18, 2003, a petition for leave to intervene and a petition for writ of certiorari to the U.S. Foreign Intelligence Surveillance Court of Review was filed in this case in the U.S. Supreme Court by the American Civil Liberties Union and a number of other organizations.

On March 14, 2003, the Bar Association of San Francisco filed a motion to file an amicus curiae brief in support of the motion to intervene and petition for certiorari. On March 24, 2003, the Supreme Court denied the motion for leave to intervene in order to file a petition for a writ of certiorari and denied the motion for leave to file an amicus curiae brief.216

References Edit

  1. See Statement of Sen. Patrick Leahy, Chairman, Committee on the Judiciary, "The USA PATRIOT Act in Practice: Shedding Light on the FISA Process" (Sept. 10, 2002), (full-text); "Courts," Nat'l J.'s Technology Daily (Aug. 22, 2002, PM Edition); Dan Eggen & Susan Schmidt, "Secret Court Rebuffs Ashcroft; Justice Dept. Chided on Misinformation," Wash. Post, at A1 (Aug. 23, 2002).
  2. 218 F.Supp.2d at 613.
  3. Id. at 624-27.
  4. 310 F.3d at 721.
  5. Id. at 719-20.
  6. Id. at 721.
  7. Id.
  8. The cases to which this appears to refer include decisions by both U.S. courts of appeals and U.S. district courts. Past cases considering the constitutional sufficiency of FISA in the context of electronic surveillance have rejected Fourth Amendment challenges and due process challenges under the Fifth Amendment to the use of information gleaned from a FISA electronic surveillance in a subsequent criminal prosecution, because the purpose of the FISA electronic surveillance, both initially and throughout the surveillance, was to secure foreign intelligence information and not primarily oriented towards criminal investigation or prosecution. United States v. Megahey, 553 F. Supp. 1180, 1185-93 (E.D.N.Y.), aff’d without opinion, 729 F.2d 1444 (2d Cir. 1982), re-aff’d post-trial sub nom United States v. Duggan, 743 F.2d 59 (2d Cir. 1984); United States v. Ott, 827 F.2d 473, 475 (9th Cir. 1987); United States. v Badia, 827 F.2d 1458, 1464 (11th Cir. 1987). See also United States v. Johnson, 952 F.2d 565, 572 (1st Cir. 1991), rehearing and cert. denied, 506 U.S. 816 (1991) (holding that, although evidence obtained in FISA electronic surveillance may later be used in a criminal prosecution, criminal investigation may not be the primary purpose of the surveillance, and FISA may not be used as an end-run around the 4th Amendment); United States v. Pelton, 835 F.2d 1067, 1074-76 (4th Cir. 1987), cert. denied, 486 U.S.1010 (1987) (holding that electronic surveillance under FISA passed constitutional muster where the primary purpose of surveillance, initially and throughout surveillance, was gathering of foreign intelligence information; also held that an otherwise valid FISA surveillance was not invalidated because later use of the fruits of the surveillance in criminal prosecution could be anticipated. In addition, the court rejected Pelton’s challenge to FISA on the ground that allowing any electronic surveillance on less than the traditional probable cause standard — i.e. probable cause to believe the suspect has committed, is committing, or is about to commit a crime for which electronic surveillance is permitted, and that the interception will obtain communications concerning that offense — for issuance of a search warrant was violative of the Fourth Amendment, finding FISA's provisions to be reasonable both in relation to the legitimate need of Government for foreign intelligence information and the protected rights of U.S. citizens); United States v. Cavanaugh, 807 F.2d 787, 790-91 (9th Cir. 1987) (defendant, convicted of espionage, appealed district court's refusal to suppress fruits of FISA electronic surveillance which intercepted defendant offering to sell defense secrets to representatives of Soviet Union. In affirming conviction, appellate court found FISA procedures had been followed, and upheld FISA against constitutional challenges. Court found, in part, that FISA's probable cause requirement was reasonable under Fourth Amendment standard. "The application must state that the target of the electronic surveillance is a foreign power or an agent of a foreign power, and must certify that the purpose of the surveillance is to obtain foreign intelligence information and that the information cannot reasonably be obtained by normal investigative techniques." 50 U.S.C. §1804(a). It is true, as appellant points out in his brief, that the application need not state that the surveillance is likely to uncover evidence of a crime; but as the purpose of the surveillance is not to ferret out criminal activity but rather to gather intelligence, such a requirement would be illogical. See United States District Court, 407 U.S. at 322 (recognizing distinction between surveillance for national security purposes and surveillance of ‘ordinary crime’); . . . And . . . there is no merit to the contention that he is entitled to suppression simply because evidence of his criminal conduct was discovered incidentally as the result of an intelligence surveillance not supported by probable cause of criminal activity. See Duggan, 743 F.2d at 73n.5.”) United States v. Rahman, 861 F. Supp. 247, 251 (S.D.N.Y. 1994). Cf., United States v. Bin Laden, 2001 U.S. Dist. LEXIS 15484 (S.D.N.Y. Oct. 2, 2001); United States v. Bin Laden, 126 F. Supp. 264, 277-78 (S.D.N.Y. 2000) (adopting foreign intelligence exception to the warrant requirement for searches targeting foreign powers or agents of foreign powers abroad; noting that this "exception to the warrant requirement applies until and unless the primary purpose of the searches stops being foreign intelligence collection. . . . If foreign intelligence collection is merely a purpose and not the primary purpose of a search, the exception does not apply.") Cf. United States v. Sarkissian, 841 F.2d 959, 964-65 (9th Cir. 1988) (FISA court order authorized electronic surveillance, which resulted in the discovery of plan to bomb the Honorary Turkish Consulate in Philadelphia, and of the fact that bomb components were being transported by plane from Los Angeles. The FBI identified likely airlines, flight plans, anticipated time of arrival, and suspected courier. Shortly before the arrival of a flight fitting these parameters, the investigation focused upon an individual anticipated to be a passenger on that flight. An undercover police officer spotted a man matching the suspected courier’s description on that flight. The luggage from that flight was sniffed by a trained dog and x-rayed. A warrantless search was conducted of a suitcase that had been shown by x-ray to contain an unassembled bomb. Defendants unsuccessfully moved to suppress the evidence from the FISA wiretap and the warrantless search. On appeal the court upheld the warrantless suitcase search as supported by exigent circumstances. Defendants contended that the FBI’s primary purpose for the surveillance had shifted at the time of the wiretap from an intelligence investigation to a criminal investigation and that court approval for the wiretap therefore should have been sought under Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. § 2510 et seq., rather than FISA. The court, while noting that in other cases it had state that “the purpose of [electronic] surveillance” under FISA “must be to secure foreign intelligence information,” “not to ferret out criminal activity;” declined to decide the issue of whether the applicable standard was that “the purpose” or that “the primary purpose” of a FISA surveillance must be gathering of foreign intelligence information. The court stated, “Regardless of whether the test is one of purpose or primary purpose, our review of the government’s FISA materials convinces us that it is met in this case. . . . We refuse to draw too fine a distinction between criminal and intelligence investigations. “International terrorism,” by definition, requires the investigation of activities that constitute crimes. 50 U.S.C. §1806(f). That the government may later choose to prosecute is irrelevant. FISA contemplates prosecution based on evidence gathered through surveillance. . . . “Surveillances . . . need not stop once conclusive evidence of a crime is obtained, but instead may be extended longer where protective measures other than arrest and prosecution are more appropriate.” S. Rep. No. 701, 95th Cong., 1st Sess. 11 . . . [(1978)]. . . . FISA is meant to take into account “the differences between ordinary criminal investigations to gather evidence of specific crimes and foreign counterintelligence investigations to uncover and monitor clandestine activities. . .” Id. . . . . At no point was this case an ordinary criminal investigation.”). Cf., United States v. Falvey, 540 F. Supp. 1306 (E.D.N.Y. 1982) (distinguishing United States v. Truong Dinh Hung, 629 F.2d 908, 912-13 (4th Cir. 1980); and United States v. Butenko, 494 F.d 593, 606 (3d Cir.) (en banc), cert. denied sub nom, Ivanov v. United States, 419 U.S. 881 (1974), which held that, while warrantless electronic surveillance for foreign intelligence purposes was permissible, when the purpose or primary purpose of the surveillance is to obtain evidence of criminal activity, evidence obtained by warrantless electronic surveillance is inadmissible at trial, 540 F. Supp. at 1313. In addressing the theory that the evidence in the case before it was obtained pursuant to a warrant, a lawfully obtained court order under FISA, id. at 1314, the court observed that the “bottom line of Truong is that evidence derived from warrantless foreign intelligence searches will be admissible in a criminal proceeding only so long as the primary purpose of the surveillance is to obtain foreign intelligence information.” Id. at 1313-14. After noting that Congress, in enacting FISA, “expected that evidence derived from FISA surveillances could then be used in a criminal proceeding,” the court concluded that “it was proper for the FISA judge to issue the order in this case because of the on-going nature of the foreign intelligence investigation. . . . The fact that evidence of criminal activity was thereafter uncovered during the investigation does not render the evidence inadmissible. There is no question in [the court’s] mind that the purpose of the surveillance, pursuant to the order, was the acquisition of foreign intelligence information. Accordingly, [the court found] that the FISA procedures on their face satisfy the Fourth Amendment warrant requirement, and that FISA was properly implemented in this case.” Id. at 1314.).

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