"No American should be forced to seek safety over liberty."

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

http://findarticles.com/p/articles/mi_m2194/is_6_72/ai_105477700

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)

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In contrast, a criminal Title III wiretap must be supported by probable cause to believe that a specific individual, using an identified phone or location, is committing a particular crime. (10) It requires that the government show that a predicate offense is, has, or will be committed by the subject of the surveillance" and that particular communications concerning the predicate offense will be obtained through the wiretap (12) at a specified location or through a specified device used by the target. (13)

FISA Information for Criminal Prosecutions

Related Results
Appeals court overturns limits on secret wiretaps.(PAGE ONE)

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It is important to note that both FISA and Title m require a showing of probable cause to authorize electronic monitoring (and physical searches in the case of FISA). However, because of the differing objectives of the two acts, the degree of specificity required differs markedly. Arguably, because of the different probable cause showing required by FISA, it is easier for the government to obtain a EISA order than it is to obtain a Title III order. Because of this, the courts became concerned that the government would obtain FISA electronic surveillance orders in what were essentially criminal investigations to avoid the stricter requirements of Title III.

This concern surfaced in an espionage case that predates FISA. In United States v. Truong Dinh Hung, (14) the government used a warrant-less wiretap to overhear and record telephone conversations of the defendant and to bug his apartment. The wiretapping and bugging were authorized by the attorney general under the "foreign intelligence" exception to the Fourth Amendment. The defendant moved to suppress the evidence collected by means of the wiretap and bug as violations of the Fourth Amendment. The U.S. Court of Appeals for the Fourth Circuit admitted the evidence collected during the early days of the collection but held that evidence obtained after the primary purpose of the investigation had shifted from securing intelligence information to accumulating evidence of a crime and must be suppressed because of the failure to comply with the requirements of Title III. This ruling is the origin of the "primary purpose test that was to create problems in later cases.

Subsequent cases decided after the passage of FISA distinguished Truong on the grounds that the surveillance authorization in that case was not obtained pursuant to a FISA warrant. (15) These courts noted that FISA contains a statutory mechanism for the dissemination of criminal information obtained during an intelligence intercept and have held that when such evidence is discovered "incidentally" during an authorized FISA intercept it may be admitted in subsequent criminal prosecutions. (16) This would include situations where "the government can anticipate that the fruits of such surveillance may later be used, as allowed by , as evidence in a criminal trial." (17) This line of reasoning became known as the "primary purpose" test and was adopted by several circuits. (18) In other words, when the primary object of the electronic monitoring (or search) was to collect foreign intelligence information, FISA was the appropriate mechanism to seek authorization from the courts. When the primary purpose was to seek criminal prosecution, Title III was the appropriate mechanism. Failure to strictly observe this distinction resulted in a possible suppression of the evidence.

FISA AS AMENDED BY THE USA PATRIOT ACT

Related Results
Appeals court overturns limits on secret wiretaps.(PAGE ONE)

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Following the September 11, 2001, terrorist attacks, Congress reassessed intelligence-gathering procedures and passed the USA PATRIOT Act. The most significant changes involve the purposes for which FISA-authorized electronic monitoring and searches may be used and the exchange of information between criminal and foreign intelligence investigators.

Previously, FISA-authorized electronic monitoring and searches only could be used if high-level executive officials certified that "the purpose" was to obtain foreign intelligence information. As noted, that language came to be interpreted as the "primary purpose by the courts and DOJ. The USA PATROIT Act now requires that foreign intelligence information gathering be a "significant purpose." (19) The act amends FISA so that intelligence officials may coordinate efforts with law enforcement officials to investigate or protect against attacks, terrorism, sabotage, or clandestine intelligence activities without undermining the required certification of the "significant purpose" of FISA orders. The result is that Congress rejected the idea of having a "wall" between foreign intelligence and law enforcement officials when the object of the investigation is to detect, prevent, or prosecute foreign intelligence crimes.

On March 6, 2002, Attorney General John D. Ashcroft implemented the USA PATRIOT Act by establishing a new DOJ policy regarding information-sharing procedures. The new procedures permitted the complete exchange of information and advice between intelligence officers and law enforcement officers regarding FISA surveillances and searches.

On May 17, 2002, the FISA Court rejected the attorney general's new policy. (20) The FISA Court ruled that law enforcement officials cannot a) direct or control an investigation using FISA searches or surveillances for law enforcement objectives, b) direct or control the use of FISA procedures to enhance a criminal prosecution, c) make recommendations to intelligence officials concerning the initiation, operation, continuation or expansion of FISA searches or surveillances, or d) that representatives of DOJ's Office of Intelligence Policy and Review (OIPR) be invited to ("chaperone" in the view of the DOJ) all meetings between FBI and DOJ's Criminal Division to consult regarding efforts to investigate or protect against foreign attack, sabotage, or international terrorism to ensure that foreign intelligence gathering remains the primary purpose of any FISA-authorized technique. The FISA Court's rejection of the new guidelines led to the first-ever appeal to the FISA Court of Review.

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