In Re Directives Pursuant to Section 105B of the Foreign Intelligence Surveillance Act: Judicial Recognition of Certain Warrantless Foreign Intelligence Surveillance*

Article excerpt

I. Introduction

Mere hours before adjourning for its August 2007 recess,1 Congress amended the Foreign Intelligence Surveillance Act (FISA)2 and enacted the Protect America Act of 2007.3 Congress took up the measure based upon concerns raised by the Director of National Intelligence (DNI) that FISA required immediate modernization in the face of a "heightened terrorist threat environment" to address the needs of the U.S. Intelligence Community and to remove FISA's "requirement of a court order to collect foreign intelligence about foreign targets located overseas."4 Among other things, the Protect America Act authorized the DNI and the Attorney General to conduct foreign intelligence surveillance concerning persons reasonably believed to be outside the United States without obtaining a warrant or other court order.5

Debate over the Protect America Act focused on the extent to which it safeguarded the privacy interests of U.S. persons. 6 Supporters of the legislation argued that the Protect America Act would restore FISA's original balance between protections for persons communicating within the United States and the Executive Branch's traditional authority to conduct certain warrantless surveillance.7 Critics declared that the legislation would authorize unconstitutional, warrantless surveillance of the communications of U.S. persons, would transfer power from the courts to the Executive Branch, and would place excessive authority in the hands of the Attorney General and the DNI.8 About one thing, at least, supporters and critics agreed: the adjournment deadline did not afford the time necessary to analyze the legislation sufficiently. 9 The legislation, therefore, included a six-month sunset provision.10 As one member noted, "To state the obvious: This is a very troublesome way to legislate."11

During the following months, while Congress considered changes to the Protect America Act, a communications service provider challenged on Fourth Amendment grounds the constitutionality of the legislation in classified proceedings before the Foreign Intelligence Surveillance Court (FISC or FISA Court) and later, on appeal, before the Foreign Intelligence Surveillance Court of Review (Court of Review).12 The Court of Review's decision on this challenge in In re Directives Pursuant to Section I05B of the Foreign Intelligence Surveillance Act In re Directives)(TM) upheld the Protect America Act as implemented by the Executive Branch.14 In so doing, the Court of Review expressly recognized a foreign intelligence exception to the Warrant Clause of the Fourth Amendment "when surveillance is conducted to obtain foreign intelligence for national security purposes and is directed against foreign powers or agents of foreign powers reasonably believed to be located outside the United States."15 The Court of Review also held that the warrantless surveillance, as implemented, satisfied the Fourth Amendment's reasonableness requirement, even when the government acquires communications of U.S. persons who are not the targets of the surveillance.16 These holdings answer some of the principal criticisms of the Protect America Act. They also are a contemporary reminder that certain surveillances and searches conducted by the Executive Branch without prior judicial review do not violate the Fourth Amendment, at least when such activity is expressly authorized by Congress and subject to appropriate privacy protections.

II. Executive Branch Authority to Collect Foreign Intelligence Without a Court Order Before Enactment of the Protect America Act

For much of the nation's history, the Executive Branch exercised largely unchecked discretion in gathering foreign intelligence. That changed in 1978 with the enactment of FISA, but even then certain methods of foreign intelligence collection, including those later implicated in the Protect America Act, continued to involve only the Executive Branch.

A. Foreign Intelligence Collection Prior to 1978 and Resulting Abuses

Before FISA, the Executive Branch conducted surveillance for foreign intelligence purposes without significant oversight by Congress or the courts. …