Foreign Intelligence Surveillance Act
|
|
The Foreign Intelligence Surveillance Act (FISA) of 1978 prescribes procedures for requesting judicial authorization for electronic surveillance and physical search of persons engaged in espionage or international terrorism against the United States on behalf of a foreign government.
The Act created the Foreign Intelligence Surveillance Court and enabled it to oversee requests for surveillance warrants by federal police agencies (primarily the F.B.I.) against suspected foreign intelligence agents inside the U.S.
FISA is aimed at regulating the collection of "foreign intelligence" information in furtherance of U.S. counterintelligence, whether or not any laws were or will be broken. See 50 U.S.C. § 401(a)(3) (defining "counterintelligence" as information gathered and activities conducted to protect against espionage, other intelligence activities, sabotage, or assassinations conducted by or on behalf of foreign governments or elements thereof, foreign organizations, or foreign persons, or international terrorist activities). Department of Defense (DOD) guidelines state that the purpose of counterintelligence collection is to detect espionage, sabotage, terrorism, and related hostile intelligence activities to "deter, to neutralize, or to exploit them."
In short, counterintelligence and criminal prosecution are different.
FISA allowed for:
- Electronic Surveillance
- Physical Searches
- Pen Registers and Trap & Trace Devices for Foreign Intelligence Purposes
- Access to certain Business Records for Foreign Intelligence Purposes
The provisions of the act were enhanced by the USA Act of 2001, primarily to include terrorism on behalf of groups that are not specifically backed by a foreign government. The USA Act was quickly incorporated in the more commonly known USA PATRIOT Act, also passed in 2001.
The path to FISA has two branches, political and judicial.
The government had long maintained that it had extensive discretion to conduct wiretapping or physical searches in order to protect national security. In Katz v. United States, 389 U.S. 347 (1967), the Supreme Court acknowledged that the President had claimed special authority for warrantless surveillance in national security investigations, and explicitly declined to extend its holding to cases "involving the national security." Id. at 358 n. 23. Similarly, Congress in Title III stated that "nothing in Title III shall . . . be deemed to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government."
On the political front, such executive branch activities, charitably described as "some degree of domestic overreaching of intelligence into domestic areas," had long been tolerated. Staff of House Permanent Select Comm. on Intelligence, 104th Cong., Staff Study, IC21: Intelligence Community in the 21st Century at 272 (comm. print 1996).
But in the 1970s the political winds changed. The 1975-76 Church Committee hearings documented extraordinary federal government abuse of surveillance powers. Examples included the the NSA's Operation Shamrock and Operation Minaret, CIA's Operation CHAOS, the FBI's COINTELPRO domestic harassment of dissenters and anti-war protesters that included illegal wiretapping, and the illegal burglaries of the Nixon White House "plumbers."
The Church Committee Report found that covert action had been excessive, had circumvented the democratic process, and had violated the Constitution. It concluded that Congress needed to prescribe rules for intelligence activities.
On the judicial front, the Supreme Court first confronted the tension between unmonitored executive branch surveillance and civil liberties in United States v. U.S. District Court, 407 U.S. 297 (1972), in which the United States charged defendants with conspiracy to destroy government property. Defendants sought electronic surveillance information, held by the prosecution, that the CIA obtained during a potentially illegal wiretap, wanting to ascertain whether the government had relied on information in the indictment or the case for conviction and to suppress any tainted evidence at trial. The Attorney General admitted that a warrantless wiretap had intercepted conversations involving the defendants.
Before the Supreme Court, the government defended its actions on the basis of the Constitution and the Title III national security disclaimer. The Court rejected the statutory argument, saying that "Congress . . . simply did not legislate with respect to national security surveillances." As for the constitutional argument, the Court accepted that the President had the power "to protect our Government against those who would subvert or overthrow it by unlawful means" and that this power justified electronic surveillance of would-be subversives.
Invoking the "broader spirit" of the Fourth Amendment and "the convergence of First and Fourth Amendment values" in national security wiretapping cases, however, the Court was especially wary of possible abuses of the national security power. The Court then balanced "the duty of Government to protect the domestic security, and the potential danger posed by unreasonable surveillance to individual privacy and free expression," and found that 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." Justice Powell wrote that the inconvenience to the government is "justified in a free society to protect constitutional values."
The Court emphasized that this case involved only the domestic aspects of national security: "We . . . express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents." It invited Congress to act: "Given these potential distinctions between Title III 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 in Title III. 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."
These two paths, political and judicial, converged in the enactment of FISA.
Why is FISA dangerous?
Most important, FISA powers are broad and vague, and the secrecy of FISA proceedings makes FISA powers susceptible to abuse.
FISA power extends well beyond spies and terrorists. It can be used in connection with ordinary criminal investigations involving United States citizens who live in this country and who may be charged with offenses such as narcotics violations or breaches of an employer's confidentiality. 50 U.S.C. §§ 1806, 1825.
For instance, electronic surveillance under § 1801(f)(1) only reaches wire or radio communications "sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person" and a warrant would ordinarily be required. If the U.S. person is not "known," or more important, not "intentionally" targeted, it simply isn't "electronic surveillance" under § 1801(f)(1).
Note also that FISA expressly contemplates that it will produce "unintentionally acquired information." § 1806(i). But while this section requires the destruction of such information, it only applies to "the contents of any radio communication," only if a warrant would have been required, and only if both the sender and intended recipients are within the United States.
Given these limits, one may presume that "unintentionally acquired information" outside these lines is not destroyed. That would include all "unintentionally acquired"wire or electronic communications.
How does FISA work?
Under FISA, requests for counterintelligence warrants are funneled through the Justice Department, which reviews applications by the CIA as well as other agencies before submitting them to the FISA court. 50 U.S.C. §§ 1804(a), 1822(a)(1) (1994). Each application to the FISA court must first be personally approved by the Attorney General. See 50 U.S.C. § 1804(a).
The application must contain, among other things,
a statement of reasons to believe that the target of the surveillance is a foreign power or agent of a foreign power, specified information on the implementation of the surveillance, and a "certification" from a high-ranking executive branch official stating that the official "deems the information sought to be foreign intelligence information" and that the information sought "cannot reasonably be obtained by normal investigative techniques."
See generally 50 U.S.C. §§ 1804(a)(7), 1805(a) (setting forth the findings necessary to support the issuance of an order authorizing surveillance).
Particular facts or representations required include: statements regarding all previous applications involving the target; "detailed description of the nature of the information sought and of the type of communication or activities to be subject to the surveillance," § 1804(a)(6); the length of time surveillance is required, § 1804(a)(10); whether physical entry into a premises is necessary, and proposed procedures to minimize the acquisition, use, and retention of information concerning nonconsenting U.S. persons. § 1804(b).
On the basis of the application, a FISC judge must find probable cause 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 U.S. 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 which "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.
Courts have attached conditions to the executive's use of warrantless surveillance, including the requirement that the President or Attorney General authorize the search, the search targets a foreign power or its agents, and the primary purpose of the search is to gather foreign intelligence information. See Exec. Order No. 12,333, § 2.5, 3 C.F.R. 200 (1982), reprinted in 50 U.S.C. § 401 note (1994) (requiring approval of attorney general for warrantless searches).
An order of the FISC may approve electronic surveillance of an agent of a foreign power for ninety days and of a foreign power for a year. Extensions may be granted on the same terms, except that targets who are foreign powers may be subject to surveillance for an additional year if there is probable cause to believe that no communication of any U.S. person will be acquired.