Leaving FISA Behind: The Need to Return to Warrantless Foreign Intelligence Surveillance

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In a locked, windowless room with walls of corrugated steel, in a restricted area of a Justice Department building in Washington, sits the Foreign Intelligence Surveillance Court (FISC). Conducting proceedings completely hidden from the public, as mandated by Foreign Intelligence Surveillance Act (FISA) of 1978, the FISC grants government agents permission to surveil targets if there is probable cause to believe they are foreign powers or agents of foreign powers. (1) The FISC is accustomed to approving each government request it receives, but on May 17, 2002, it issued an order stating that the Department of Justice (DO J) had overstepped its bounds by promulgating surveillance procedures that gave prosecutors too much supervisory authority over intelligence investigations. (2) The DOJ insisted that its procedures were in accordance with the FISA amendments passed with the USA PATRIOT Act, (3) and filed the first ever appeal (4) to the Foreign Intelligence Surveillance Court of Review, a panel of three senior federal circuit court judges appointed by Chief Justice Rehnquist. The court handed down In re Sealed Case, reversing the FISC order and affirming the legitimacy of the new DOJ procedures and the USA PATRIOT Act amendments. (5) In late March 2003, the Supreme Court declined to reconsider the decision. (6)

The USA PATRIOT Act has virtually eliminated the specialized intelligence-gathering function of FISA orders; they now can be used with the specific purpose of obtaining evidence to be used in criminal prosecutions, as long as this is not the sole purpose of such investigations. (7) Additionally, prosecutors and intelligence officials may now consult over FISA warrant application and execution. (8) A FISA warrant has become little more than a regular Title III warrant (9) issued secretly with no required showing of probable cause of criminal activity. In view of these significant changes, the FISC retains little unique jurisdiction. The FISC's secret, perfunctory procedures no longer provide constitutionally adequate protection for surveillance targets who will be unknowingly investigated and prosecuted as a direct result of its orders, especially now that FISA surveillance may be used specifically for criminal--and not simply intelligence-gathering--investigations.

The best way to revive the constitutional viability of foreign intelligence surveillance is to forego the FISA warrant procedure entirely and rely on regular Article III courts to guarantee the reasonableness of such searches if challenged. Such a change in process would allow law enforcement authorities more flexibility in pursuing foreign intelligence investigations, since no pre-investigatory warrants would be required, but would also allow for greater protection of the civil liberties of those investigated, since the standard of review would not be simply whether the target is an agent of a foreign power, but whether the search was conducted in a reasonable manner, in conformance with the Supreme Court's Fourth Amendment jurisprudence. Warrantless foreign intelligence surveillance would be admissible in criminal prosecutions, but only if such surveillance were determined to be reasonable in post hoc adversary proceedings.

My proposal is not to give the DOJ a blank check to investigate anyone, anytime, anywhere; such a regime would cause the kind of backlash that prompted the passage of FISA in the first place. Rather, if warrantless foreign intelligence surveillance is going to succeed in the twenty-first century, strict executive and legislative branch internal review procedures are necessary. Prosecutors would have to give targets of warrantless operations notice when such investigations are concluded, allowing targets to contest the surveillance in Article III courts. Such a change would benefit all parties involved. The DOJ would enjoy greater freedom in conducting investigations, as it would not have to procure judicial warrants and could act rapidly to investigate time-sensitive threats. …