The Patriot Act and the wall between foreign intelligence and law enforcement.

• Author: Seamon, Richard H.

1. 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. Statutory Analysis of the Patriot Act D. Summary of Statutory Analysis IV. AN ARGUMENT FOR A STATUTORY CLARIFICATION THAT ARGUABLY MAKES A SUBSTANTIVE CHANGE TO THE FISA V. CONCLUSION Ever since its hurried enactment six weeks after the 9/11 terrorist attacks, the USA PATRIOT Act (1) has generated confusion and controversy. One thing about the Act upon which most people agree, however, is that it expanded government power to combat terrorism. (2) In particular, the Act supposedly tore down "the wall" between foreign intelligence and criminal law enforcement. (3) According to a recent federal court decision, however, the Patriot Act did not raze the wall; to the contrary, the Act raised, for the first time, a statutory basis for the wall. (4) On that view, the Patriot Act restricts, rather than expands, the government's power to fight terrorism. (5) This article argues that the court interpreted the Patriot Act incorrectly; but so did the federal courts that interpreted prior legislation to create the wall in the first place. The article urges Congress to clarify the matter--and truly tear down the wall--when it reauthorizes the Patriot Act.

   This article focuses on "one of the most important" (6) and "perhaps the most controversial" (7) provision in the Patriot Act. That provision amended the Foreign Intelligence Surveillance Act of 1978 (the FISA). (8) The FISA was enacted to regulate the executive branch's use of electronic surveillance to get foreign intelligence information. (9) The FISA generally requires the government to have advance judicial approval for such surveillance. To get judicial approval for electronic surveillance under the original FISA, a high-ranking government official with intelligence responsibilities had to certify to a court that "the purpose of the surveillance was to obtain foreign intelligence information." (10) Some lower federal courts interpreted this provision to mean that the "primary purpose" of the proposed surveillance had to be gathering foreign intelligence, rather than gathering evidence for a criminal prosecution. (11) This "primary purpose" test assumed incompatibility between the purpose of gathering foreign intelligence and the purpose of gathering evidence for a prosecution. To satisfy the primary purpose test, the Department of Justice accordingly adopted procedures limiting contact between foreign intelligence agents in the FBI and federal prosecutors. Those procedures came to be interpreted restrictively by the Justice Department and the court responsible for issuing FISA surveillance orders, the Foreign Intelligence Surveillance Court ("FISA Trial Court"). The restrictive interpretation produced what the public came to call "the wall." (12) The wall thus was mainly the result of (1) lower courts' interpretation of the original FISA's "purpose" provision; (2) the Justice Department's procedures for implementing the lower courts' interpretation; and (3) the restrictive interpretation of those procedures by Department officials and the FISA Trial Court. (13)

   The wall caused trouble before 9/11 but did not attract public or congressional attention until afterwards. (14) For example, the wall hurt the investigation of whether Wen Ho Lee stole classified information from the Los Alamos National Laboratory. (15) It was the 9/11 attacks, however, that made the general public aware of the wall, because of its apparent role in the government's failure to prevent the 9/11 attacks. (16) Right after 9/11, the Justice Department asked Congress to amend the "purpose" provision of the original FISA to eliminate the primary purpose test. Under the Department's proposal, instead of certifying that "the purpose" of proposed FISA surveillance was to obtain foreign intelligence information, the government would have to certify that obtaining foreign intelligence was "a purpose" of the proposed surveillance. (17) Rather than adopt that proposal, Congress amended the original FISA in the Patriot Act to require the government to show that obtaining foreign intelligence information is "a significant purpose" of the proposed surveillance. (18) Congress thus struck a compromise between the Department of Justice and supporters of the primary purpose test.

   The case on which this article focuses arose when the Justice Department changed its procedures to implement the Patriot Act's "significant purpose" amendment. The new procedures reflected the Department's view that the Patriot Act eliminated the primary purpose test. Thus, the Department's procedures allowed the government to seek judicial orders approving electronic surveillance under the FISA for the primary purpose of building a prosecution. The Department sought approval of the new procedures by the FISA Trial Court. The FISA Trial Court largely rejected them, however, concluding that the Patriot Act did not eliminate the "primary purpose" test. (19) The Department took its first-ever appeal to the Foreign Intelligence Surveillance Court of Review ("FISA Court of Review" or "Court of Review"). In its first-ever decision, called In re Sealed Case, the FISA Court of Review reversed the FISA Trial Court. (20) To begin with, the Court of Review held that the primary purpose test misread the original FISA of 1978; the test was based on a "false dichotomy" between foreign intelligence and law enforcement. (21) In a curious twist, however, the Court of Review found that the Patriot Act amended the FISA to ratify that "false dichotomy." "In short," the FISA Court of Review said, "even though ... the original FISA did not contemplate the 'false dichotomy' [between foreign intelligence and law enforcement] the Patriot Act actually did--which makes it no longer false." (22) Faced with this "analytic conundrum," (23) the FISA Court of Review interpreted the FISA, as amended by the Patriot Act, to relax the restrictions associated with the primary purpose test but not to eliminate them altogether.

   Specifically, the Court of Review interpreted the FISA, as amended by the Patriot Act, to restrict the government's use of FISA surveillance for law enforcement purposes in two ways. First, the government cannot use FISA surveillance if its sole objective is to prosecute foreign agents for past crimes, even for foreign intelligence crimes such as espionage and international terrorism. (24) Under this restriction, for example, after the 9/11 attacks the government could not have gotten a FISA order solely to gather evidence of Jose Padilla's past involvement in those attacks. (25) The government would need a future-oriented objective as well, such as the prevention of future acts of terrorism. Second, the government cannot use FISA surveillance if its primary (much less its sole) objective is to prosecute foreign agents for "non-foreign intelligence crimes." (26) Thus, for example, the government could not use...