Physical searches under FISA: a constitutional analysis.

• Author: Malooly, Daniel J.
• Position: Foreign Intelligence Surveillance Act

1. INTRODUCTION II. FISA MECHANICS III. DIFFERENCES BETWEEN FISA AND RULE 41 IV. SEARCHES CONDUCTED SOLELY PURSUANT TO EXECUTIVE AUTHORITY V. THE CONSTITUTIONALITY OF FISA VI. CONCLUSION

1. INTRODUCTION

   In the early hours of October 10, 1993, Federal Bureau of Investigation (FBI) agents broke into a house on a quiet, tree-lined street just outside of Washington, DC.(1) The team of specialists proceeded to methodically examine the contents of the entire house. One agent photographed all the important financial papers while another circumvented a security program to download the files stored on a personal computer.(2) When everything of interest had been examined and photographed, the team left, making sure that everything was returned to its proper place. The owners of the house would never know that this search had taken place, unless the FBI decided to tell them.(3)

   This search served as the culmination of an intensive search for a Central Intelligence Agency (CIA) mole who was responsible for the discovery and probable execution of at least ten U.S. intelligence assets in Russia.(4) During the summer of 1993, the CIA became suspicious of Aldrich Ames because of his increasingly extravagant lifestyle and large, unexplained bank deposits. However, the joint FBI-CIA task force that was investigating these losses still had no evidence directly linking any of this money to the Russians.(6)

   It was the search of the Ames home that finally confirmed the suspicions of the task force. As a result of the search, agents found the telephone number of a KGB agent in Vienna, a piece of paper indicating that a meeting with the KGB had been rescheduled, and several detailed messages that Ames had written to his KGB handler.(6) On February 21, 1994, Ames was arrested and charged with espionage.

   The government received a scare when Ames' attorney, Plato Cacheris, indicated that he planned to challenge the constitutionality of the search of the Ames' house. The agents had received authorization to conduct the search directly from Attorney General Janet Reno rather than through the normal procedure, which is to obtain a search warrant from a federal magistrate.(7) Cacheris noted that "the constitutionality of searches authorized by the Attorney General . . . has not been addressed by the courts."(8) If this authorization by the Attorney General was ruled invalid, then the evidence seized from Ames' house would not be admissible, and the government risked losing its case against one of the most damaging spies in U.S. history. Fortunately for the government, and despite the urging of Cacheris, Ames agreed to plead guilty to espionage in an attempt to gain leniency for his wife, Rosario, who was charged with conspiracy to commit espionage.(9)

   Despite this outcome, there remained concern about the vulnerability of warrantless physical searches to constitutional attack. As a result, the Foreign Intelligence Surveillance Act (FISA) was amended to include procedures for the authorization of physical searches seeking foreign intelligence information.(10) Part II of this Note will present a basic outline of the mechanics of FISA and argue that it is an improvement over the previous practice of executive authorization. Part III will examine the differences between the standards for searches conducted pursuant to FISA and those conducted in criminal investigations. Part IV will argue that searches conducted solely pursuant to executive authority, like the Ames search, are unconstitutional. Part V will argue that the extension of FISA to cover physical searches presents a constitutional balance between the government's need for foreign intelligence information and its responsibility to protect individual rights.

2. FISA MECHANICS

   FISA was originally passed in 1978. In its initial form, the Act set out a special set of procedures and empowered a secret court to authorize foreign intelligence wiretaps.(11) This version of the Act did not address physical searches. Physical searches continued to be approved by the Executive Branch, which had a long history of collecting foreign intelligence information without the prior sanction of judicial warrants.(12) A typical example of this declaration of presidential authority is Executive Order 12,333, promulgated by President Ronald Reagan. This order provided that:

   The Attorney General hereby is delegated the power to approve the use for

   intelligence purposes, within the United States or against a United States

   person abroad, of any technique for which a warrant would be required if

   undertaken for law enforcement purposes, provided that such techniques

   shall not be undertaken unless the Attorney General has determined in each

   case that there is probable cause to believe that the technique is directed

   against a foreign power or an agent of a foreign power.(13)

   The 1994 amendment to FISA extended this law to authorize physical searches for foreign intelligence purposes.(14) Under FISA, the President may delegate to the Attorney General the power to petition the FISA court for authorization to conduct physical searches aimed at gathering foreign intelligence information.(15) In order to conduct a national security search, a federal officer must first have an application certified by the Attorney General, and then gain approval from the FISA court.

   In order for an application to be approved by the FISA court, the Attorney General must certify that the application contains certain information. The application must include "the identity, if known, or a description of the target of the search, and a detailed description of the premises or property to be searched. . . ."(16) The applicant must also present a statement of the facts that are the basis for the belief that the target of the physical search is a "foreign power"(17) or an "agent of a foreign power."(18) Finally, the application must contain the certification from a designated Executive Branch official(19) that: the information sought is foreign intelligence information; the purpose of the search is to gather foreign intelligence information; and the information cannot "reasonably be obtained by normal investigative techniques."(20)

   After this application has been certified by a designated Executive Branch official and approved by the Attorney General, it is presented to the FISA court for approval.(21) The FISA court consists of seven U.S. District Court judges from around the nation who review these applications in secret, ex-parte proceedings in which a representative of the Department of Justice presents the request for authorization.(22)

   The judges are authorized to make an ex-parte order approving the search as long as they make certain necessary findings. First, there must be probable cause to believe that the target of the search is a foreign power or an agent of a foreign power.(23) The statute provides that no "United States person" can be considered an agent of a foreign power based solely on the exercise of rights protected by the First Amendment.(24) Second, there must be probable cause to believe that "the premises or property to be searched is owned, used, possessed by or is in transit to or from an agent of a foreign power or a foreign power."(25) Based on these findings of probable cause, the court can issue an order approving a search for the period necessary to perform the search. This time frame lasts for a maximum of one year if the search is directed against a foreign power, and for a maximum of forty-five days if it is not.(26)

   FISA also provides for a Foreign Intelligence Court of Review that has jurisdiction to review only the denial of requests for physical search orders.(27) In practice, however, this provision has had no significance. Since no application for a FISA order, either for a wiretap or physical search, has ever been denied, there has never been the opportunity to appeal. From the statute's enactment through 1994, 8,130 warrants have been issued without a single denial.(28) This has prompted Judge Collins Seitz, former presiding judge of the reviewing court and current judge on the U.S. Court of Appeals for the Third Circuit, to say, "My duties consisted of holding a title without functioning in any way. . . . It was sort of a joke."(29)

   The fact that no application has ever been denied has led many to believe that FISA is just a complex collection of procedures designed to give the appearance of protecting individual rights, while covering up what is, in reality, a mere rubber stamp of government requests. Opponents note the lack of an adversarial proceeding and the complete secrecy of the approval process as evidence of the lack of any real judicial scrutiny. Professor Jonathan Turley, a former NSA staffer, has stated that "when you enter the FISA chamber you're struck by the absence of procedures or protocol normally associated with a legal proceeding."(30) He concluded, "If the FISA court ever turned down one of your warrants, it would be like a notary refusing to sign off on a lease agreement."(31)

   Opponents argue that, far from legitimating an activity that was unconstitutional when it was under the sole...