Foreign Intelligence Surveillance Act: before and after the USA Patriot Act - Legal Digest

FBI Law Enforcement Bulletin,The, June, 2003 by Michael J. Bulzomi

The terrorist attacks of September 11,2001, left an indelible mark upon America and an overshadowing feeling of vulnerability. They also created a determination to respond to the new national security threats they represented. Congress reacted to these threats by passing laws providing new tools to fight terrorism. Perhaps, the most controversial recent act of Congress is the United and Strengthening of America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (1) (USA PATRIOT Act) and its impact upon the use of electronic surveillance and physical searches authorized under the Foreign Intelligence Surveillance Act of 1978 (FISA) (2) to combat foreign threats.

Some Americans fear the actions taken by Congress may infringe upon basic American liberties. Benjamin Franklin warned that "those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety." (3) The government must use its new tools in a way that preserves the rights and freedoms guaranteed by America's democracy, but, at the same time, ensure that the fight against terrorism is vigorous and effective. No American should be forced to seek safety over liberty. This article briefly examines FISA and the impact of the USA PATRIOT Act upon it.

FISA

Electronic monitoring (including both wiretaps and microphone installations) and physical searches are excellent, and sometimes essential, sources of information for both foreign intelligence and criminal activities. In 1968, Congress passed the Omnibus Crime Control and Safe Streets Act. Title HI of that act (4) contains provisions concerning the authorization and use of electronic monitoring by the government to gather information regarding criminal activities. Under Title III, the government has specific authorization procedures and rules to follow when it monitors people and places to collect evidence of violations of criminal laws. But, Title Ill did not answer the question of whether or not the government is required to obtain court authorization for electronic monitoring conducted, not for criminal investigations but for the collection of information regarding threats to national security.

The U.S. Supreme Court faced this issue in the case of United States v. United States District Court. (5) In this case, a group of Vietnam War protesters tried to blow up the local CIA recruiting office in Ann Arbor, Michigan, and a number of other government buildings. Evidence obtained during a domestic national security wire interception, undertaken without a formal court order, was used in the subsequent criminal trial. The use of this evidence was contested. The issue was whether or not the president had the authority, through the attorney general, to authorize electronic surveillance for national security matters without prior judicial review. The Court held that the government does not have unlimited power to conduct national security wiretaps for domestic security matters, and that prior judicial authorization is needed before using wiretaps for national security purposes. However, the Court recognized that such wiretaps involve different policy and practical considerations from ordinary criminal wir etaps. It suggested that Congress consider exploring the issue and decide if the authorization for and rules governing the use of national security wiretaps should be the same as those governing criminal wiretaps. The Court made it clear that it was not deciding the issue of the government's authority to con duct wiretaps in cases of foreign threats to the national security.

To establish the necessary authority and procedures for the government to conduct wiretaps in response to foreign threats, Congress passed FISA. FISA established a requirement of judicial approval before the government engages in at electronic surveillance (as well as physical searches) for foreign intelligence purposes. The act established the FISA Court, consisting of U.S. District Court judges designated by the chief justice of the U.S. Supreme Court. The court's purpose is to review government applications for national security electronic monitoring and searches and authorize their use with appropriate limitations. If the FISA Court denies an application for an order authorizing a national security wiretap or search, the matter is referred under seal to the FISA Court of Review, comprised of three federal judges selected by the chief justice of the U.S. Supreme Court. The court of review determines whether the application was properly denied. (6) Its decision can be appealed directly to the U.S. Supreme Court.

FISA Contrasted with Title III

In essence, the purpose of a FISA order is to gather foreign intelligence information, (7) while the purpose of a Title III wiretap order is to gather evidence for criminal prosecution. The FISA application need only state facts supporting probable cause to believe that the target of the intercept (or search) is a foreign power, or an agent of a foreign power, and that the facilities to be monitored or searched are being used, or are about to be used, by a foreign power, or an agent of a foreign power, and to certify that a significant purpose of the surveillance is to obtain foreign intelligence information. (8) To show that a person is an agent of a foreign power, the government need only relate facts demonstrating that the subject is an officer or employee of a foreign power or acts on the foreign power's behalf; or knowingly engages in clandestine intelligence-gathering activities that may involve a violation of U.S. criminal statutes; or knowingly engages in sabotage, international terrorism, or in the preparation of these activities on behalf of a foreign power. (9)