The Patriot Act and the Wall between Foreign Intelligence and Law Enforcement

By Seamon, Richard H.; Gardner, William Dylan | Harvard Journal of Law & Public Policy, Spring 2005 | Go to article overview

The Patriot Act and the Wall between Foreign Intelligence and Law Enforcement


Seamon, Richard H., Gardner, William Dylan, Harvard Journal of Law & Public Policy


I. LEGENDS OF THE WALL
 A. Pre-FISA
 B. FISA
     1. Applications for FISA Surveillance Orders
     2. Judicial Approval of FISA Surveillance Orders
     3. The Govemment's Intended and Actual Use
         of FISA-Acquired Information
         a. FISA Provisions Requiring a Certification
              About the Purpose of Proposed Surveillance
              and Authorizing Limited Judicial Review of
              That Certification
         b. Minimization Procedures
         c. Section 1806 of the FISA
              i. Section 1806(a)
              ii. Section 1806(b)
 C. The "Primary Purpose" Test
     1. Origin of the Primary Purpose Test
     2. Linkage of the "Primary Purpose" Test to the
       FISA
 D. The Department of Justice's Use of the Primary
     Purpose Test as the Foundation for the Wall
 E. The Patriot Act's Supposed Demolition of the Wall
II. IN RE SEALED CASE
 A. How the Case Arose
     1. The FISA Trial Court Adopts the Attorney
         General's 1995 Procedures as Required
         "Minimization Procedures".
     2. In 2002, the Department of Justice Changes
          Information Sharing Procedures To Implement
          the Patriot Act
     3. The FISA Trial Court Rejects the Department's
          March 2002 Information Sharing Procedures
     4. The Department of Justice Creates a Route
          for Appealing the FISA Trial Court's Opinion
 B. The FISA Court of Review's Opinion
     1. The Court of Review's Analysis of the
         Original FISA
     2. The Court of Review's Analysis of the Patriot
         Act Amendments to the FISA
     3. The Court of Review's Fourth Amendment Ruling
     4. Summary of Court of Review's Opinion;
         Description of That Court's Disposition of the
         Case; Later Proceedings in the Case
III. ANALYSIS OF STATUTORY ISSUES AND THEIR
     TREATMENT BY THE FISA COURTS
 A. Importance of Statutory Rulings in In re Sealed Case
 B. Statutory Analysis of the Original FISA
     1. The Purpose Provision of the Original FISA
         a. Text of the Original FISA's Purpose Provision
              i. The Primary Purpose Test's Defective
                 Textual Interpretation
              ii. The FISA Court of Review's Erroneous
                  Conclusion That the Original FISA's
                  Purpose Provision Did Not Limit the
                  Government's Intended Prosecutorial Use
                  of Foreign Intelligence Information
             iii. The Requirement that Achievement of a
                  Foreign Intelligence Purpose be the
                  Primary Purpose for Seeking a FISA
                  Surveillance Order
              iv. The Permissibility, Under the Original
                  FISA, of the Government's Using FISA
                  Surveillance for the Primary (or Even the
                  Sole) Purpose of Investigating and
                  Prosecuting Crime of any Type When the
                  Government Intended the Prosecution
                  to Serve a Foreign Intelligence Purpose
               v. Summary of Textual Analysis of the
                  Original FISA's Purpose Provision
         b. Legislative History of the Original FISA's
             Purpose Provision
               i. Legislative History Showing that the FISA
                 Purpose Provision Limits the Type of
                 Information That can be Sought as Well
                 as the Intended Use of That Information
              ii. Legislative History Seemingly Supporting
                 the "Primary Purpose" Test
             iii. Legislative History on the "Noncriminal"
                 Standard for FISA Surveillance
              iv. Scarcity of Legislative History Citing
                   Primary Purpose Case Law
     2. Provisions on Minimization Procedures
         a. Text of FISA Provisions on Minimization
            Procedures
         b. Legislative History of Minimization
            Procedures
C. … 

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