Winning the Battle While Losing the War: Ramifications of the Foreign Intelligence Surveillance Court of Review's First Decision

• Publication year: 2003

SEATTLE UNIVERSITY LAW REVIEWVolume 27, No. 2FALL 2003

Winning the Battle While Losing the War: Ramifications of the Foreign Intelligence Surveillance Court of Review's First Decision

Stephanie Kornblum(fn*)

It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people.(fn1)

Felix Frankfurter, Associate Justice, U. S. Supreme Court

I. Introduction

Terrorism, a reality of life in many countries, is on the rise in the United States and abroad. One effective tool in the fight against terrorism is the little known, but increasingly publicized, Foreign Intelligence Surveillance Act ("FISA").(fn2) The secret warrants authorized by this Act are an important source of foreign intelligence information, which pursuant to statute sometimes becomes evidence for use by law enforcement personnel.(fn3) For example, FISA warrants produced information leading to the capture in 1992 of KGB mole Aldrich H. Ames;(fn4) information on Aum Shinrikyo, the Japanese religious cult responsible for attacking the Tokyo subway system with sarin gas in 1995; and critical evidence in the 1996 World Trade Center bombing.(fn5) While the statute is argued by some to be an affront to personal liberties, it recognizes the important need in certain, specified situations, for surreptitious surveillance. However, recent historic decisions by the statutorily created FISA courts may jeopardize both the future of the Act and an effective and necessary weapon in the arsenal against terror.

The cases that are the subject of this Note address coordination between law enforcement and foreign intelligence officials, a practice critical to the war on terrorism and the pursuit of espionage.What is at stake is nothing less than our ability to protect this country from foreign spies and terrorists. When we identify a spy or a terrorist, we have to pursue a coordinated, integrated, coherent response. We need all of our best people, intelligence and law enforcement alike, working together to neutralize the threat. In some cases, the best protection is prosecution-like the recent prosecution of Robert Hanssen for espionage. In other cases, prosecution is a bad idea, and another method- such as recruitment-is called for. Sometimes you need to use both methods. But we can't make a rational decision until everyone is allowed to sit down together and brainstorm about what to do. That is what we are seeking.(fn6)

Such coordination has historically been forbidden under FISA.(fn7) Prohibiting that interaction is one way in which the statute seeks to balance individual liberties while providing the government the ability to conduct surreptitious surveillances, an invaluable tool in terrorism and espionage investigations.

Following the September 11, 2001, terrorist attacks and the subsequent passage of the Uniting and Strengthening America by Providing Appropriate Tools Required to Interrupt and Obstruct Terrorism Act of 2001 (Patriot Act),(fn8) U.S. Attorney General John Ashcroft established procedures allowing for greater sharing and coordination between foreign intelligence and law enforcement officials regarding FISA surveillance. This action resulted in the Foreign Intelligence Surveillance Act Court of Review (Review Court) convening for the first time in November 2002. This court, first provided for by FISA twenty-five years ago,(fn9) heard a Justice Department appeal of a ruling by FISA's lower court (Foreign Intelligence Surveillance Court, or FISC) prohibiting the increased coordination between foreign intelligence and law enforcement officials desired by the Attorney General. In its first decision, the Review Court exceeded the scope of review necessary to dispose of the case. The court's overly broad adjudication has opened the door to attacks against FISA and may undermine the statute as an effective tool in the war on terrorism and the protection of national security.

A. The Foreign Intelligence Surveillance Act

Since 1978, U.S. intelligence agencies have utilized FISA as a tool to collect information crucial to national security via clandestine surveillances and searches of spies and terrorists.(fn10) The FISC is a specialized tribunal established under FISA to review warrant applications for surreptitious electronic surveillance through which the government seeks to obtain foreign intelligence information.(fn11) FISA warrants are not subject to the traditional probable cause requirement for criminal investigations.(fn12) Instead, in recognition of the severity of the foreign threat and the difficulty in obtaining foreign intelligence information, a FISA warrant can be obtained where the target of the electronic surveillance is an agent of a foreign power, and the targeted facility is, or is about to be, used by a foreign agent.(fn13) While the FISC has presided over thousands of such warrant applications, the court never in its history issued a published opinion regarding its highly secretive proceedings until May 2002.(fn14)

Congress passed FISA to resolve the question of the applicability of the Fourth Amendment warrant requirement to electronic surveillance for foreign intelligence purposes and to provide certainty as to the lawfulness of such surveillance.(fn15) FISA provides for court orders and other procedural safeguards that, in Congress' judgment, "are necessary to insure that electronic surveillance by the U.S. Government within this country conforms to the fundamental principles of the [F]ourth [Ajmendment."(fn16) The statute was an attempt to devise a "secure framework by which the executive branch may conduct legitimate electronic surveillance for foreign intelligence purposes within the context of this Nation's commitment to privacy and individual rights."(fn17)

Specifically, FISA establishes a statutory procedure whereby a federal officer, if authorized by the President of the United States acting through the Attorney General, may obtain a judicial warrant from the specially created FISC "approving electronic surveillance of a foreign power or an agent of a foreign power for the purpose of obtaining foreign intelligence information."(fn18) The issuance of a warrant under FISA is not governed by traditional probable cause standards; a federal officer acting under the authority of the President need only demonstrate probable cause that the target is a foreign power or a foreign agent.(fn19) In the case of U.S. citizens and resident aliens, the President, or officials designated by the President, must demonstrate that the government is not clearly erroneous in believing that the information sought is the desired foreign intelligence information, and that the information cannot be reasonably obtained by normal methods.(fn20)

The statute empowers the Chief Justice of the Supreme Court to designate eleven judges to hear the requests for foreign intelligence warrants and develop expertise in this area of law.(fn21) The FISA statute also provides for a three-member court with jurisdiction to review the denial of any FISA warrant application.(fn22) This court of review never convened in FISA's entire history until fall 2002, when the government, pursuant to the FISA statute, moved to have the FISA lower court's May 2002 decision reviewed.

Moreover, for more than twenty years, U.S. Circuit Courts of Appeals, when hearing cases reliant on evidence obtained via FISA applications, have repeatedly and unanimously upheld this highly secretive, non-adversarial warrant process.(fn23) In reaching their decisions, the circuit courts have ruled that FISA provides for a justifiable imposition on private rights where the "primary purpose" of the warrants has been to gather foreign intelligence information in the interest of national security, and not to further a criminal prosecution.(fn24)

B. The Events Leading to the FISA Review Court's First Opinion

In response to the September 11, 2001, terrorist attack on the World Trade Center, the worst foreign attack against the United States in history, Congress passed the Patriot Act. One provision of the Patriot Act, which provides broad new powers for law enforcement and intelligence personnel in the fight against terrorism, lowered the standard under which a FISA warrant can issue.(fn25) Under the amendments, a FISA warrant can be obtained if "a significant" purpose of the electronic surveillance is to gather foreign intelligence.(fn26) Prior to the amendments, a FISA warrant could only issue if "the purpose" of the surveillance was to gather foreign intelligence.(fn27)

This seemingly small change in wording has potentially great impact. FISA's relaxed probable cause requirement was previously preserved for situations where the only purpose was foreign intelligence gathering. The new wording allows the government to avoid the normal probable cause required to obtain a warrant in a criminal investigation and, instead, seek a warrant under FISA if the government is able to show a concurrent foreign intelligence purpose.(fn28)

Based on the broader powers available under the Patriot Act amendments to FISA, Attorney General Ashcroft promulgated new intelligence sharing procedures, incorporating this lower standard, increasing the sharing of foreign intelligence information with criminal prosecutors, and expanding prosecutors' roles in the FISA process. The Attorney...