Leaving FISA behind: the need to return to warrantless foreign intelligence surveillance.

• Author: Breglio, Nola K.
• Position: Foreign Intelligence Surveillance Act of 1978 - Case Note

INTRODUCTION

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. At the same time, the entire process would be removed from the supersecret domain of the FISC, making the Attorney General publicly and politically accountable for his orders, allowing targets more opportunities to challenge investigations, and requiring Article III courts to closely examine the constitutionality of warrantless surveillance when targets so desire.

In this Note, I first briefly discuss the reasons for the passage of FISA and the establishment of the FISC, including the past and current workings of the FISC as an institution and its questionable constitutionality even before the USA PATRIOT Act amendments. I then explain how the USA PATRIOT Act and In re Sealed Case have damaged the usefulness and legitimacy of FISA and the FISC. Finally, I make the case for the abolition of FISA and the appropriateness of warrantless searches as the standard in foreign intelligence cases.

1. FISA AND THE FISC

   1. The Jurisprudential and Political Foundations of FISA

      Much has already been written on the fifty years of jurisprudential and political wrangling leading up to the passage of the Foreign Intelligence Surveillance Act of 1978, (10) but a discussion of the reasoning behind some of the key decisions is necessary to understand the current problems with the system FISA created. The Supreme Court's first definitive ruling on the constitutional legitimacy of wiretapping came in the 1928 case of Olmstead v. United States, in which the Court upheld a warrantless wiretap of defendants' phones that led to the apprehension of a massive liquor bootlegging ring. (11) The Court refused to construe wiretapping as a search or seizure under the Fourth Amendment, noting that no physical invasion was involved. In explaining its approval of the search, the Court harkened back to what it cited as the "well-known historical purpose of the Fourth Amendment," which was "to prevent the use of governmental force to search a man's house, his person, his papers and his effects[,] ... to prevent their seizure against his will," and to avoid the "misuse of governmental power of compulsion." (12) In the Court's view, the law enforcement action in the case at issue involved no such misuse of power, but rather mere "voluntary conversations secretly overheard." (13) But in the face of political pressure, the Court would soon diverge from this interpretation of the Fourth Amendment.

      The Communications Act of 1934 made it illegal to intercept and disclose any wire or radio communication, (14) and the Supreme Court in Nardone v. United States held that, accordingly, such evidence was inadmissible in a criminal prosecution. (15) But as the specter of World War II became more threatening and a joint congressional resolution authorizing national security wiretapping stalled in the Senate, President Roosevelt acted unilaterally and encouraged Attorney General Robert Jackson to use electronic surveillance when "'grave matters involving defense of the nation'" were involved, (16) Presidents Truman and Johnson, as well as FBI Director J. Edgar Hoover, continued this practice while retaining the informal limitation on wiretapping to situations involving national security. (17) According to former Attorney General Edward Levi, between 1940 and 1974, federal agencies authorized approximately 8350 warrantless wiretaps and 2450 warrantless microphone installations. (18)

      As the practice became more and more commonplace, the Supreme Court reconsidered the constitutionality of warrantless electronic surveillance in the landmark case of Katz v. United States, where it held that the government's covert microphone surveillance of a telephone booth violated the defendant's Fourth Amendment rights. (19) The Court did an about-face from Olmstead by holding that even noninvasive, noncompulsory government surveillance could be presumed an unreasonable search. The Katz Court used privacy as its hallmark for constitutional reasonableness, holding that "the Fourth Amendment protects people, not places," and that "what [an individual] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." (20) In the years between Olmstead and Katz, the Court had strengthened its view of the warrant as a necessary constitutional protection for reasonable searches. (21) The Katz Court accordingly held that warrantless electronic surveillance was per se unreasonable, since its deliberate, pre-arrest nature exempted it from any of the major recognized exceptions to the warrant requirement (searches incident to arrest, hot pursuit, and consent). (22) But the Court backed away from its seemingly sweeping holding in a footnote at the end of its opinion, where it explicitly noted that it was not ruling on warrantless electronic surveillance when issues of national security were involved. (23) In a separate concurrence, Justice Douglas strongly objected to the majority's national security exception:

      The President and Attorney General are properly interested parties, cast in the role of adversary, in national security cases. They may even be the intended victims of subversive action. Since spies and saboteurs are as entitled to the protection of the Fourth Amendment as suspected gamblers like petitioner, I cannot agree that where spies and saboteurs are involved adequate protection of Fourth Amendment rights is assured when the President and Attorney General assume both the position of adversary-and-prosecutor and disinterested, neutral magistrate. (24) Though relegated to the sidelines in Katz, the issue of national security surveillance came to a head in United States v. United States District Court, known as the Keith case, where the Court concluded that the government's warrantless electronic surveillance of the target, who was accused of bombing a CIA office, violated his Fourth Amendment rights even though the surveillance was conducted as a...