A sense of purpose: the role of law enforcement in foreign intelligence surveillance.

• Author: Varghese, George P.

"They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." (1)

"The condition upon which God hath given liberty to man is eternal vigilance...." (2)

In the fall of 2002, the United States government gained a blunt new weapon in its ongoing War on Terror at the expense of the Fourth Amendment and the rights of U.S. citizens. The Foreign Intelligence Surveillance Court of Review (FISCR) met for the first time in its twenty-four year history to hear the government's appeal of an en banc lower court's unanimous interpretation of the Foreign Intelligence Surveillance Act of 1978 (FISA), (3) as amended by provisions of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001 (4) (commonly referred to as "Patriot Act"). On November 18, 2002, FISCR issued its first opinion, (5) overruling the Foreign Intelligence Surveillance Court's (FISC) statutory interpretation of FISA and upholding the constitutionality of the Patriot Act's "significant purpose" test, a test which relaxes the barriers between law enforcement and intelligence investigations.

As a result of this ruling, law enforcement investigators can now bypass the ordinary Fourth Amendment and Title III (6) surveillance requirements by invoking a foreign intelligence purpose as a pretext for obtaining a FISA warrant to use in a criminal investigation. (7) The effect of this power is that U.S. citizens now face the threat of secret law enforcement investigations based on FISA warrants issued without any showing of probable cause of criminal activity. (8) The warrants are granted in ex parte, in camera proceedings that are subject neither to discovery by the defendant nor meaningful suppression review by district courts. This is an unconstitutional price that is too high to pay, even in the name of post-September 11 national security. (9)

This Comment examines the FISCR opinion and calls into question the constitutionality of the Patriot Act's "significant purpose" test. Part I discusses the background of the foreign intelligence exception to the Fourth Amendment warrant requirement. Part II details the passage of FISA and the evolution of its interpretation by the courts and the executive branch. Part III focuses on the Patriot Act's amendments to FISA in light of the expanded needs to combat terrorism, and both the government's argument and the FISCR opinion upholding its constitutionality. Finally, Part IV evaluates the validity of these arguments in light of the history of the foreign intelligence exception, Title III, and the "special governmental needs" doctrine and concludes that the FISCR erred in its ruling.

1. THE FOREIGN INTELLIGENCE EXCEPTION AND THE FISA DOCTRINE

   1. The Birth of a Constitutional and Statutory National Security Exception

      The Fourth Amendment protects U.S. citizens from governmental intrusion by providing that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." (10) In the landmark case Katz v. United States, (11) the Supreme Court held that electronic surveillance constitutes a search for purposes of the Fourth Amendment and, therefore, cannot be conducted by the government without a showing of probable cause and a warrant issued by a neutral and detached magistrate. (12) The Court reaffirmed its long-held view that searches conducted without a warrant are "per se unreasonable under the Fourth Amendment--subject only to a few specifically established and well-delineated exceptions." (13)

      In a footnote, however, the Court expressly passed on the issue of whether the Fourth Amendment requires prior judicial authorization of surveillance in cases involving national security. (14) In his concurrence, Justice White more explicitly suggested that the Court "should not require the warrant procedure if the President of the United States or his chief legal officer, the Attorney General, has considered the requirements of national security and authorized electronic surveillance as reasonable." (15)

      Justice Douglas, however, in a separate concurrence joined by Justice Brennan, adamantly rejected any notion of a national security exception to the Fourth Amendment, believing it would give a "green light for the Executive Branch to resort to electronic eavesdropping without a warrant in cases which the Executive Branch itself labels 'national security' matters." (16) Justice Douglas noted that the president and the attorney general are "properly interested parties, cast in the role of adversary, in national security cases." (17) Furthermore, "spies and saboteurs are as entitled to the protection of the Fourth Amendment as suspected gamblers." (18) Therefore, Justice Douglas concluded, the Fourth Amendment rights of national security suspects could not be assured "when the President and Attorney General assume both the position of adversary-and-prosecutor and disinterested, neutral magistrate." (19)

      Seeking to establish uniform procedures by which law enforcement may conduct electronic surveillance in accordance with the Katz ruling, Congress passed Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (Title III). (20) Title III codifies the Katz decision by requiring probable cause before the government may conduct electronic surveillance--entailing both that the suspect may commit, or has committed, a criminal offense, and that the targeted facility is connected with that offense. (21) Most significantly, Title III permits authorization of a warrant only upon judicial determination of probable cause and upon government compliance with a strict procedural regime designed both to protect the integrity of surveillance evidence and to limit government intrusion on privacy. (22)

      While Title III was meant to be the exclusive means by which law enforcement could conduct electronic surveillance, Congress specifically excluded from its reach executive officials conducting investigations dealing with national security matters. The statute stated that:

      [N]othing 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 or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities. Nor shall anything contained in this chapter be deemed to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government. (23) B. Keith and Limitations on the National Security Exception

      Four years later, in United States v. United States District Court (Keith), (24) the Supreme Court returned to the issue it left open in the Katz footnote and clarified the Fourth Amendment's national security exception. In Keith, the government sought to prosecute three citizens who were conspiring to bomb an office of the Central Intelligence Agency in Ann Arbor, Michigan. (25) In pretrial proceedings, the defendants moved to compel the government to disclose electronic surveillance conducted without a warrant to determine whether it had tainted any potential trial evidence. (26) The Attorney General admitted to the surveillance but argued that it was for intelligence-gathering purposes and therefore fell under the national security exception to the Fourth Amendment, as codified in [subsection] 2511 (3) of Title III, and did not need not be disclosed to the defendants. (27) The government claimed the defendant's actions posed a "'clear and present danger to the structure or existence of the Government.'" (28) The district court disagreed, finding the surveillance to be a violation of the Fourth Amendment and ordered disclosure. (29) In affirming the lower court's ruling, the Supreme Court held that the language in [section] 2511(3) of Title III neither limited nor augmented presidential power, but rather that "Congress simply left presidential powers where it found them." (30) Therefore, the issue was whether the president had inherent constitutional authority to order warrantless surveillance of domestic organizations for national security purposes as an exception to the Fourth Amendment. (31)

      In answering this question, the Supreme Court recognized that national security investigations could implicate both First and Fourth Amendment interests to an even greater degree than cases involving ordinary crime." (32) While the Constitution charges the president with the obligation to "preserve, protect and defend the Constitution of the United States," (33) national security investigations also involve "greater jeopardy to constitutionally protected speech." (34) As a result, Justice Powell concluded that the Court must balance "the duty of Government to protect the domestic security, [with] the potential danger posed by unreasonable surveillance to individual privacy and free expression." (35) The Court described this danger as:

      [T]he tendency of Government--however benevolent and benign its motives--to view with suspicion those who most fervently dispute its policies. Fourth Amendment protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs. The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect "domestic security." Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent. (36) The Court...