Foreign Intelligence Surveillance Act (1978)

William Banks

In 1972 the Supreme Court first confronted the tensions between unmonitored executive surveillance and individual freedoms in the national security setting. United States v. United States District Court (1972) arose from a criminal proceeding in which the United States charged three defendants with conspiracy to destroy government property—the dynamite bombing of a Central Intelligence Agency (CIA) office in Ann Arbor, Michigan. During pretrial proceedings, the defendants moved to compel disclosure of electronic surveillance. The government admitted that a wiretap had intercepted conversations involving the defendants. However, the executive had acted alone in placing the wiretap, without meeting, to the satisfaction of a magistrate, the usual Fourth Amendment requirement of probable cause, or reason to believe that a crime had been or would soon be committed.

The Supreme Court found authority for national security surveillance implicit in the president's Article II Oath Clause, which includes the power to protect the government against those who would subvert, or undermine, it by unlawful means. Nonetheless, the Court was especially wary of possible abuses of the national security power because of the "privacy values at the core" of the Fourth Amendment and the convergence of First and Fourth Amendment values in national security wiretapping cases. Waiving the Fourth Amendment probable cause requirement could lead the executive to "yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy and protected speech."

Although the Court ruled against the government, the Court implicitly invited Congress to develop a set of standards for domestic intelligence surveillance. Congress did not react immediately, but Justice Lewis F. Powell's opinion provided an important impetus for the development of what became the Foreign Intelligence Surveillance Act (FISA) of 1978 (P. L. 95-511, 92 Stat. 1783). Like the Supreme Court, Congress recognized that surveillance by the executive branch without a warrant and not controlled by specific laws could undermine important constitutional values contained in the First and Fourth Amendments. At the same time, Congress came to appreciate that the nature and purpose of intelligence investigations differs considerably from criminal law enforcement investigations. For that reason, the traditional warrant requirement as practiced by law enforcement might not be the best model for assuring that national security investigations strike the right balance of security and liberty.

STRUCTURE OF THE ACT

FISA defines many categories of electronic surveillance that may be conducted, some of which go beyond conventional telephone taps and hidden microphones. Wiretaps may be used in the United States (so long as at least one party is in the United States) to obtain voice communications, teleprinter, telegraph, facsimile, and digital communications. In 1994, Congress amended FISA to authorize submission of applications for an order approving a physical search in the United States.

The FISA standards are far easier to meet than the standard for obtaining a traditional law enforcement search warrant, which requires evidence that the individual whose property is searched was involved in a crime. Once approved, a search may be conducted at any time within forty-five days. Notice need not be given if the attorney general determines that national security requires secrecy or if the target is not a "United States person" as defined in FISA—a citizen, permanent resident alien, or an association of such persons.

The FISA authorizes the attorney general to approve applications for warrants to conduct electronic surveillance or physical searches within the United States for the purposes of foreign intelligence, if the target is a "foreign power" or "agent of a foreign power." If the attorney general approves an application for a warrant pursuant to FISA, the request is then submitted to any of the judges who sit on a specially constituted court, created by FISA. The Foreign Intelligence Surveillance Court (FISC) consists of eleven United States district court judges designated by the chief justice. These judges meet in secret and are empowered to hear applications for and grant orders approving electronic surveillance and searches anywhere within the United States under the procedures set forth in FISA. Similarly, FISA allows the chief justice to designate three district or court of appeals judges to sit as a special court of appeals to hear appeals by the government from denial of an application by one of the district judges. The government may then appeal to the Supreme Court.

The FISC may permit surveillance of an official foreign power—a foreign government, or a terrorist or political group or organization controlled by a foreign government. A request for such surveillance need not describe the communications sought, the means for accomplishing the surveillance, or the surveillance devices to be employed. Targeting an "agent of a foreign power" is easier for the government to accomplish if an individual is not a "United States person." FISA expressly states that no "United States person" may become a target of FISA surveillance "solely upon the basis of activities protected by the first amendment."

A FISC judge must find probable cause, on the basis of the application, that the target is a foreign power or agent of a foreign power, and that the facilities where the surveillance is directed are or will be used by the target. For "United States persons," the FISC judge must find probable cause that one of four conditions has been met: (1) the target knowingly engages in clandestine intelligence activities on behalf of a foreign power that "may involve" a criminal law violation; (2) the target knowingly engages in other secret intelligence activities on behalf of a foreign power pursuant to the direction of an intelligence network, and his activities involve or are about to involve criminal violations; (3) the target knowingly engages in sabotage or international terrorism or is preparing for such activities; or (4) the target knowingly aids or abets another who acts in one of the above ways.

THE WAR ON TERRORISM

One question unresolved by FISA is the extent to which the FBI can use FISA surveillance to obtain evidence for criminal prosecution. Ordinarily, law enforcement investigations have this purpose from the start. In contrast, FISA surveillances must have an intelligence purpose. Before 2001, courts that allowed evidence gathered during the surveillance to support a criminal conviction required that intelligence be the "primary" purpose of the surveillance.

After September 11 and enactment of the Patriot Act, the Department of Justice sought approval from the FISC to implement new information-sharing procedures that permit criminal prosecutors or investigators to participate actively in FISA proceedings, even to the extent of initiating and controlling the surveillances approved by the FISC. The government's theory was that enforcing the criminal laws against those accused of terrorist activities also served a foreign intelligence objective. The FISC accepted most of the Department's proposal for information-sharing, but rejected the portion that would permit the criminal division to direct or control FISA procedures. Following the limited rejection by the FISC, the government appealed for the first time in the history of FISA to the special Court of Review, a never-before-constituted appellate court made up of three senior federal judges appointed by the chief justice of the Supreme Court. After a closed hearing, in November 2002 the Court of Review reversed the FISC and upheld the Department of Justice procedures, based on its reading of FISA, as amended by the Patriot Act. The Court of Review decision permits the government to use the FISA procedures for law enforcement objectives so long as there remains a "significant" foreign intelligence purpose for the surveillance or search.

APPLICATION REQUIREMENTS

For potential targets of surveillance, an application must include the following information:

• • The name of the officer making the application
• • Statements showing the attorney general's approval of the application and identifying and describing the surveillance target and supporting an affirmation that the target is an agent of a foreign power
• • A description of the information sought and types of communications to be monitored
• • The "minimization" procedures that will be employed to confine the boundaries of the surveillance
• • A statement by the National Security Advisor that the information sought is foreign intelligence information that is not obtainable through normal investigative means
• • A description of any past applications involving the target
• • The surveillance devices to be employed and the means of installation (including whether physical entry will be required)
• • The period of time for conducting the surveillance

In emergency circumstances, the president is permitted, through the attorney general, "[n]otwithstanding any other law," to authorize electronic surveillance without a court order for periods up to a year upon a written certification that such surveillance is "solely directed" at communications between or among foreign powers, or a technical intelligence from property or premises "under the open and exclusive control of a foreign power." These emergency powers may be exercised only where (1) there is "no substantial likelihood" that a communication involving a United States person will be acquired, and (2) the attorney general meets minimization requirements and reports these requirements to the intelligence committees and transmits his or her certification of such surveillance under seal to the FISC.

UNSETTLED ISSUES

Although the Supreme Court has not considered the constitutionality of FISA, the lower courts have uniformly followed United States v. Duggan (1984) in upholding the FISA procedures. (That ruling stated that FISA is a "constitutionally adequate balancing of the individual's Fourth Amendment rights against the nation's need to obtain foreign intelligence information.") In addition, the extent to which the government may rely on FISA to gain information for the purposes of prosecuting suspected terrorists remains unclear, although the November 2002 Court of Review decision settled the matter for the near term.

See also: Antiterrorism and Effective Death Penalty Act; USA Patriot Act.

BIBLIOGRAPHY

Dycus, Stephen, et al. National Security Law. 3d ed. Boston: Aspen Law and Business, 2002.

Maas, Peter. Killer Spy: The Inside Story of the FBI's Pursuit and Capture of Aldrich Ames, America's Deadliest Spy. New York: Warner, 1995.

Polmar, Norman, and Thomas B. Allen. Spy Book: The Encyclopedia of Espionage. New York: Random House, 1998.

Article II Oath Clause

The "Oath Clause" in Article II of the Constitution states: "Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: 'I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States'."

Fourth Amendment to the Constitution

The Fourth Amendment guarantees "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

FOREIGN INTELLIGENCE SURVEILLANCE COURT OF REVIEW

In 1978, Congress enacted the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C.A. §§ 1800–1829 (West 2003) to prescribe separate procedures for federal agents to follow when conducting foreign surveillance. FISA created two courts with special jurisdiction: the Foreign Intelligence Surveillance Court (FISC) and the Foreign Intelligence Surveillance Court of Review (FISCR). Until 2002, the FISC had never published an opinion, and the FICSR had never convened.

In 1972, the U.S. Supreme Court admonished Congress that the latter should consider enacting legislation that differentiated between criminal investigations and intelligence surveillance designed to provide for domestic security. United States v. U.S. District Court, 407 U.S. 297, 92 S. Ct. 2125, 32 L. Ed. 2d 752 (1972). When Congress enacted FISA, it sought to give the government greater power to conduct foreign intelligence without the heightened requirements of criminal investigations under the fourth amendment. The FISC was empowered to grant warrants only to the government, and FISC cases have generally been held in secret.

The FISC consists of 11 federal district court judges from the several circuits. These judges are designated by the chief justice of the U.S. Supreme Court and serve staggered terms. This lower court meets during two days each month. The FISCR consists of three judges named by the chief justice. Under FISA, the FISCR has jurisdiction to hear appeals when the FISC has denied an application submitted by the government. Between 1979 and 2002, however, no appeal had ever been filed with the review court.

The FISC may grant requests from federal governmental officials to conduct electronic surveillance and to conduct physical searches. The U.S. justice department reviews requests submitted by the various agencies, which are then forwarded to the U.S. attorney general. The attorney general must personally approve each application that is submitted to the FISC for approval. FISA requires that each application satisfy a number of requirements, including the requirement that the purpose of the proposed surveillance or search is foreign intelligence information. This information relates to the ability of the United States to protect itself against potential hostile acts, terrorism, or intelligence activities of a foreign power or an agent of a foreign power.

Prior to 1994, FISA authorized only electronic surveillance. In 1994, Congress amended FISA to allow physical searches. FISA also requires that federal officials minimize contact between agents who conduct foreign intelligence surveillance and criminal investigations. These minimization procedures were designed to ensure that the federal government did not circumvent the requirements of the Fourth Amendment by using information found in foreign intelligence gathering as part of a criminal investigation. These strict procedures were considered to establish a "wall" between the intelligence gathering and criminal investigations.

In 1995, attorney general janet reno approved new procedures that allowed for more sharing of information between agents conducting intelligence surveillance and those conducting criminal investigations. These procedures were expanded further in 2000 by the attorney general. In 2001, when Congress approved the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (usa patriot act), Pub. L. No. 107-56, 115 Stat. 277, it eliminated the requirement that the primary target of the surveillance had to be an agent of a foreign power.

Following the attacks on the United States by terrorists on September 11, 2001, the United States stepped up its intelligence operations. Attorney General john ashcroft has openly advocated increased use of intelligence surveillance within the United States in order to identify terrorists who may be living within the country. The application of FISA is somewhat difficult in the investigation of suspected terrorists because the terrorists may not identify themselves with any particular nationality. Moreover, terrorists may live within the United States as legal residents.

In 2002, Ashcroft submitted a request to the FISC to reduce the minimization procedures and allow for greater sharing of information between agents gathering foreign intelligence and agents conducting criminal investigations. The instance marked the first time that the FISC heard a case en banc, meaning that all of the judges were present. The government in the case urged the court to accept the lowered minimization procedures, but the court rejected this request in its first-ever published opinion. In re All Matters Submitted to the Foreign Intelligence Surveillance Court, 218 F. Supp. 2d 611 (2002).

The government then decided to appeal the case to the FISCR. The appeal was unprecedented, and the only party to the appeal was the federal government. The court allowed the american civil liberties union (ACLU) and the National Association of Criminal Defense Lawyers to participate as amici curiae, against the objections of the government. On appeal, the government claimed that the dichotomy between foreign intelligence gathering and criminal investigations was an illusion and that developments in FISA should allow the Justice Department to loosen the procedures regarding the sharing of information.

The court agreed with the government's claims. In re Sealed Case, 310 F.3d 717 (2002). The court found that definition of foreign intelligence information includes such crimes as espionage and terrorism, so differentiating between investigating these crimes and providing intelligence surveillance was difficult. Moreover, the court found that the USA PATRIOT Act allows the government to conduct wiretaps and searches of U.S. citizens and to share these results with prosecutors. The only requirement under the act is that the government must allege that a significant purpose in the investigation is to gather foreign intelligence information.

The ACLU and other organizations decried the court's decision, saying that it gave the government too much leeway in conducting foreign intelligence surveillance. Although the ACLU petitioned the U.S. Supreme Court to review the case, legal commentators did not expect the Court to accept the appeal. The only party to the appeal was the government, so no adversary actually lost in the appeal.

further readings

Arena, Kelli. 2002. "The Foreign Intelligence Surveillance Court." CNN.com (August 23). Available online at <www.cnn.com/2002/LAW/08/23/inv.fisc.explainer/index.html> (accessed July 21, 2003).

Blum, Vanessa. 2002. "Spy Court Steps Onto Foreign Soil." Legal Times 25 (September 2).

Hudson, David L., Jr. 2003. "Unusual Ruling Leads to Unusual Filing." ABA Journal E-Report (February 28).

Linz, Michael F., and Sarah E. Melzer. 2003. "Constitutional Issues After 9/11: Trading Liberty for Safety." Federal Lawyer (January).

cross-references

Search and Seizure.

Foreign Intelligence Surveillance Act

The Foreign Intelligence Surveillance Act (FISA) was passed by the United States Congress in 1978 following an intensive investigation of the activities of U.S. intelligence and law enforcement agencies by the Church Committee.

The Church Committee (chaired by Sen. Frank Church) uncovered evidence of illegal wiretaps and illegal entry by the Federal Bureau of Investigation (FBI) as part of FBI efforts during the 1960s and early 1970s to conduct domestic surveillance on Vietnam War protesters and civil rights advocates.

FISA was also inspired by a ruling by the United States Supreme Court in 1972 (United States v. U.S. District Court ), 407 U.S. 297, where the Supreme Court stated: "Given these potential distinctions between [Wiretap statute] criminal surveillances and those involving the domestic security, Congress may wish to consider protective standards for the latter which differ from those already prescribed for specified crimes [under the Wiretap statute]. Different standards may be compatible with the Fourth Amendment if they are reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens."

FISA established the United States Foreign Intelligence Surveillance Court and authorized the Court to conduct judicial oversight in matters of electronic surveillance related to intelligence and counterintelligence operation. The Court was composed of U.S. federal district court judges, appointed by the Chief Justice, who rotate membership on the court.

Because of the secret nature of the Court, and in order not to violate the Fourth Amendment of the Constitution (specifying the need for probable cause) warrants for surveillance were to be restricted to the gathering of information not intended to be used in criminal prosecution.

The Court reviews Justice Department applications for electronic surveillance. The Court meets two days each month and the proceedings are non-adversarial. Akin to grand jury procedures, the Court only considers arguments for surveillance brought by the Department of Justice Office of Intelligence Policy and Review.

FISA also broadly interpreted associations with "foreign power" so that individuals associated with foreign organizations designated as terrorist organizations by either the Court or Department of State are not entitled to the same Constitutional protections as individuals accuse of other crimes. FISA permits domestic surveillance if there is a judicial finding of probable cause that the individual or organization to be scrutinized acts for a foreign power. The acts constituting probable cause do not need to be criminal; they may, for example, fall into the realm civil economic activities. If the surveillance target is a U.S. citizen FISA requires that, in order to grant permission for surveillance based upon FISA, there must exist a probable cause to argue that the target's acts involve espionage or other criminal conduct. FISA places a heavy reliance on "acts" so that U.S. citizens cannot be designated as agents of a foreign power "solely upon the basis of activities protected by the first amendment to the Constitution of the United States" (i.e. free speech rights).

Although initially limited to setting conditions for electronic surveillance, during the 1990s Congress expanded FISA to include provisions allowing physical searches.

It is estimated that FISA conditions applied to approximately 750 cases a year prior to the September 11, 2001, terrorist attacks on the U.S.

The Patriot Act, passed following the terrorist attacks on the United States on September 11, 2001, extended the government's surveillance authority under FISA. New powers included roving wiretap authority (the surveillance of communications related to an individual or organization without regard to particular telephone line, computer station, or other mode of communication to be monitored. Other extensions included a more liberalized allowed use of pen register, trap and trace devices (removing the need to assert that the surveillance target is "an agent of a foreign power"). The lower Foreign Intelligence Surveillance Court specifically rejected Justice Department attempts at "information screening" and "minimization" procedures are intended to allow the use of material gathered under Foreign Intelligence Surveillance Court authorization to criminal proceedings.

█ FURTHER READING:

ELECTRONIC:

Electronic Privacy Information Center. Foreign Intelligence Surveillance Act (FISA) November 22, 2002. <http://www.epic.org/privacy/terrorism/fisa/Overview> (April 15, 2003).

SEE ALSO

COINTELPRO
Foreign Intelligence Surveillance Court of Review

Foreign Intelligence Surveillance Court of Review

The United States Foreign Intelligence Surveillance Court of Review is an appellate court for the review of matters related to espionage and counterintelligence.

Although the Court was established by the Foreign Intelligence Surveillance Act (FISA) passed by the United States Congress in 1978, the Court has had no record of meeting prior to its review of Justice Department electronic surveillance in September, 2002.

Following the terrorist attacks on the United States on September 11, 2001, the Justice Department's use of domestic wiretaps increased and the department began to operate under broad new powers that Attorney General John Ashcroft asserted were granted to law enforcement agencies under the 2001 Patriot Act. A lower court, the Foreign Intelligence Surveillance Court—also authorized by FISA—ruled aspects of the Justice Department interpretation of those new powers to be unconstitutional. The Justice Department then appealed to the Foreign Intelligence Surveillance Court of Review, the first known appeal of a Foreign Intelligence Surveillance Court ruling.

The Court of Review operates as a three-judge panel composed of federal appellate judges—or retired appellate judges—appointed on a rotating basis by Chief Justice of the United States Supreme Court.

Court deliberations were conducted in secret and took place in an electronically secure room at the Justice Department. No public notice was given prior to the Court's session and the Court issued no ruling or public statements following the session.

Congressional officials including Senate Intelligence and Judiciary Committee staff were denied requests to attend the appellate court's initial hearing, according to Justice Department officials, because the hearing contained detailed discussions of sources and methods used in intelligence gathering. Following congressional protests, the Court of Review, agreed to provide Senate Judiciary Committee members with an unclassified transcript of its proceedings and an unclassified copy of its rulings.

█ FURTHER READING:

ELECTRONIC:

Electronic Privacy Information Center. November 22, 2002. <http://www.epic.org/privacy/terrorism/fisa/Overview> (April 15, 2003).

SEE ALSO

Church Committee
COINTELPRO
Patriot Act, United States
Senate Select Committee on Intelligence, United States