Echelon's effect: the obsolescence of the U.S. foreign intelligence legal regime.

• Author: Bedan, Matt

1. INTRODUCTION II. CONSTRUCTION OF U.S. FOREIGN INTELLIGENCE SURVEILLANCE LAW A. Pre-FISA B. FISA C. FISC D. Ambiguities and Loopholes III. THE ECHELON INTERCEPTION SYSTEM A. Overview and Capabilities B. Interaction with Foreign Intelligence Legal Regime 1. Shared and Incidentally Obtained Information 2. Information Sharing and the Fourth Amendment IV. CONCLUSION I. INTRODUCTION

   In December of 2005, the New York Times first reported that President George W. Bush had secretly authorized the National Security Agency ("NSA") to conduct warrantless domestic surveillance in an effort to combat terrorism. (1) Almost immediately, the story ignited controversy and national debate over the program and whether it violated any of a number of statutes, orders, and federal court decisions which make up the U.S. foreign intelligence legal regime. This Note discusses this regime and the capabilities of the agencies which operate under its purview.

   Part II gives an outline of the regime and the context in which it developed. Particular emphasis is given to the Foreign Intelligence Surveillance Act ("FISA") and the enigmatic court which interprets it. Part III describes the Echelon Interception System and the manner in which the United States gathers and shares foreign signals intelligence. Part III then goes on to discuss the implications of intelligence sharing and concludes that some aspects of the current practice are incompatible with the principles, if not the jurisprudence, of the Fourth Amendment.

   This Note does not seek to argue that the type and degree of foreign intelligence surveillance currently being undertaken by the federal government is illegal, oppressive, or unwise. Rather, it seeks to point out how technological advancements have rendered America's foreign intelligence legal regime irrelevant by causing a massive disconnect between its goals and its real world impact.

2. CONSTRUCTION OF U.S. FOREIGN INTELLIGENCE SURVEILLANCE LAW

   1. Pre-FISA

      Presidents going back as far as Abraham Lincoln have claimed that the Constitution confers upon their office the "inherent authority" to conduct warrantless surveillance for the purposes of national security and foreign affairs. (2) Beginning most notably with the Roosevelt administration, "presidents have claimed the right to conduct warrantless electronic surveillance in matters involving the defense of the nation, with each successive administration continuing to broaden this amorphous 'national security exception' to the warrant requirement of the Fourth Amendment." (3)

      In an effort to clarify Executive authority, Congress enacted the Omnibus Crime Control and Safe Streets Act of 1968 ("Title III"). (4) Title III was the first piece of legislation to require the President to obtain a court order before conducting electronic surveillance. (5) The statute sought to distinguish criminal from foreign surveillance, and in fact began with an explicit disclaimer stating:

      Nothing contained in this chapter ... shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack ... of a foreign power, [or] to obtain foreign intelligence information deemed essential to the security of the United States.... (6) Title III thus validated presidential authority to conduct warrantless surveillance for the purposes of national security, but it did not consider any applicable limits to such authority.

      The unchecked and expansive power over surveillance granted to the President under Title III led inevitably to its exploitation. Media investigations of the 1960s and 1970s alarmed Americans by uncovering numerous incidents of abuse by a government that seemed to have become fundamentally unconcerned with many of the civil liberties guaranteed by the Constitution. (7) The CIA and FBI's illegal "Cointelpro" and "Chaos" Operations, which tried to publicly discredit Dr. Martin Luther King, Jr. and other civil rights leaders; the clandestine surveillance and harassment of Vietnam War protestors; and the "black bag" burglary of Democratic Party campaign strategies by White House "plumbers" are but a few of the episodes which served to undermine public trust in the government and elucidate the need for reform. (8)

      Concurrently, the Supreme Court limited the President's national security exception for the first time when it handed down its decision in United States v. United States District Court ("Keith"). (9) In Keith, the Court was required to determine whether the President had the power "to authorize electronic surveillance in internal security matters without prior judicial approval." (10) Despite a longstanding history of such surveillance, the Court determined that the President did not have this authority. (11) In the majority opinion, Justice Powell reasoned that "[t]he Fourth Amendment contemplates a prior judicial judgment," (12) and although the task of ensuring national security presented special circumstances, "[t]he circumstances described do not justify complete exemption of domestic security surveillance from prior judicial scrutiny." (13) The Keith decision, combined with the widespread domestic unrest generated by Watergate and related government scandals, prompted Congress to form the Senate Select Committee to Study Government Operations with Respect to Intelligence Activities. The subcommittee was chaired by Idaho Senator Frank Church and is commonly referred to as the "Church Committee." (14) The Church Committee was tasked with investigating the alleged intelligence abuses by the FBI and other agencies and furnishing its report and recommendations to Congress. (15) In its report to Congress, the Church Committee concluded that:

      [I]ntelligence activity in the past decades has, all too often, exceeded the restraints on the exercise of governmental power which are imposed by our country's Constitution, laws, and traditions.... (16) Too many people have been spied upon by too many Government agencies and [too] much information has [been] collected. The Government has often undertaken the secret surveillance of citizens on the basis of their political beliefs, even when those beliefs posed no threat of violence or illegal acts on behalf of a hostile foreign power. (17) According to the Committee, a necessary step towards curtailment of unconstitutional surveillance practices was to require that the government agencies which conduct surveillance do so in either the foreign or domestic realm. (18) The Committee's recommendations reflected the Supreme Court's language in Keith, in which the Court predicted that divergent statutory requirements for foreign and domestic surveillance may be necessary under the Fourth Amendment. (19) It was Congress' acceptance of this conclusion that prompted them to enact the Foreign Intelligence Surveillance Act in 1978. (20)

   2. FISA

      The legislative purpose in enacting FISA was to create, in the eyes of the law, distinct and mutually exclusive foreign and domestic spheres of surveillance and to provide a statutory framework for government conduct in the foreign sphere. (21) FISA, as amended by the USA PATRIOT Act, (22) remains in place today and provides authorization for the government to conduct surveillance of a "foreign power" and an "agent of a foreign power" for the purpose of gathering "foreign intelligence information." (23) Originally limited to electronic eavesdropping and wiretapping, its scope was later expanded in 1994 to permit covert physical intrusions with what have been dubbed "sneak and peek" warrants. (24) The combined scope of FISA and Title III theoretically addresses every instance in which the government may lawfully conduct electronic surveillance of any kind. (25)

      In order to obtain a FISA warrant, the Attorney General must submit an application to the Foreign Intelligence Surveillance Court ("FISC"), an Article III special court created under the FISA statute. (26) The request must detail: (1) the identity of the target; (2) a certification that the target is a "foreign power" or an "agent of a foreign power"; (3) the type of surveillance to be used; and (4) certification that the information sought is for the purposes of foreign intelligence. (27) In 2001, the USA PATRIOT Act amended FISA's foreign intelligence purpose requirement, lowering the standard from "primary purpose" to "significant purpose." (28)

      In addition to court-ordered surveillance, FISA permits the President to authorize electronic surveillance without a court order for a period of up to one year, provided the Department of Justice ("DOJ") certifies that the surveillance is: (1) only for foreign intelligence information; (2) targets only foreign powers or their agents; and (3) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party. (29) In each of those cases, the Attorney General is required to certify compliance with those conditions to the FISC. (30) In addition, the Attorney General is required to provide a semiannual report on the use of surveillance under overall compliance to the House Permanent Select Committee on Intelligence as well as the Senate Select Committee on Intelligence detailing the extent of surveillance being conducted without a court order. (31)

      Under the statute, a U.S. person can be classified as an "agent of a foreign power" upon a finding that he or she acts for a foreign power, is or may be involved in espionage for a foreign power, or is involved in international terrorism. (32) An important caveat to this definition is that no U.S. person can be classified as an agent of a foreign power based solely on his participation in activities protected by the First Amendment. (33)

      In 1981, President Reagan issued Executive Order 12,333 as part of an effort to reorganize the U.S. intelligence regime and clarify its mission in response to...