Recently the Foreign Intelligence Surveillance Act (FISA) Court of Review issued an opinion — the first in its history. The opinion made it much easier for criminal law enforcement to obtain evidence in cases in which a suspect is thought to be a spy, or to be involved in terrorism, without having to establish traditional “probable cause” before a judge.
In our current climate of rational fears of terrorism, that might sound like a very good thing — at least on first glance. But in fact, the implications for Fourth Amendment rights, and privacy rights in general, are disturbing. At base, this decision says that under certain circumstances, the Fourth Amendment’s bedrock “probable cause” can be watered down, even when the evidence will be used to prosecute someone in criminal court.
Given that fact, the Court of Review should have refrained from adopting it, for it invites abuse. In particular, it allows the FBI to work in tandem with local criminal authorities while together ignoring the Fourth Amendment.
Granted, the FISA Review Court was, at least, careful to limit the application of its decision. It made clear that the government can only break down barriers between the FBI and local criminal authorities with respect to crimes that are related to foreign intelligence — not ordinary, garden-variety crimes. As the Court of Review noted, “the FISA process cannot be used as a device to investigate wholly unrelated ordinary crimes.”
But what about loosely related ordinary crimes? Will law enforcement be able to bypass the Fourth Amendment when it comes to them, too?
The decision will allow the Department of Justice to do away with the ordinary requirements of the Fourth Amendment in order to eavesdrop on our phone calls, read our e-mails or conduct searches of our homes without notifying us that it ever conducted the surveillance. How? By redirecting their investigations through the FISA Court rather than through a criminal court.
Why should there be a distinction between the gathering of foreign intelligence and criminal evidence? Because of the purposes for which they are used.
Intelligence data is used to help the government engage in effective counter-intelligence efforts. Criminal evidence is used to prosecute individual perpetrators and to potentially put them in jail.
When a citizen may be deprived of his or her liberty, the Fourth Amendment and the U.S. Constitution guarantee strong safeguards against government intrusion.
The FISA Court and the FISA Court of Review
The Foreign Intelligence Surveillance Act (FISA) Court currently considers government warrant requests in cases of alleging spying or terrorist activities. Last May, for the first time, the seven members FISA Court made public a decision rejecting the government’s bid for expanded surveillance powers.
The FISA Court noted, in particular, that the Department of Justice had committed a significant number of mistakes and errors with respect to sharing intelligence information with law enforcement — without observing required safeguards.
The FISA Court also rejected new procedures proposed by Attorney General Ashcroft designed to remove procedural walls between the FBI and criminal law enforcement. (For more details about the court, see my previous column regarding the Court, and another prior column relating to the FISA Court’s now-overruled decision on this issue.)
The FISA Court of Review is the FISA Court’s court of appeals — with the power to overrule its decisions. It is made up of three semi-retired federal appellate judges. As noted above, this is its first time in action.
When it considers appeals, the Court of Review is only required to hear argument from the executive branch — not from the investigation’s target. As a result, its proceedings are inherently one-sided.
In this case, however, the Court of Review permitted several prominent civil liberties groups — including the American Civil Liberties Union and the Center for Democracy & Technology — to file amicus (“friend of the court”) briefs arguing against the government’s interpretation of the laws.
The Significant Post 9/11 Change In Our Wiretap Laws
To see what was at stake, it is important first to understand what it takes to get a wiretap in different scenarios.
Most people are familiar with the “probable cause” standard for ordinary wiretaps; it requires the government to show probable cause to believe that an individual is committing, has committed, or is about to commit, a crime.
As the amicus briefs noted, this standard (embodied in the federal wiretap statute referred to as Title III) has traditionally been applied even to crimes relating to national security and terrorism .
It is less well-known, however, that a very different, and less demanding standard now applies when the government believes that you are a spy or involved in foreign-related terrorist activities, and seeks to gather relevant intelligence.
Thanks to the post-9/11 USA PATRIOT Act, the FBI now can get a warrant to eavesdrop if it can make two key showings. (The government also must certify that it cannot obtain the relevant information through other means, but it is up to the government alone to decide if such certification is proper.)
The first showing is of “probable cause,” but, crucially, not the usual kind of probable cause. It is probable cause to believe that “the target of the electronic surveillance is a foreign power or an agent of a foreign power.”
Thus, for instance, probable cause to think the target being wiretapped is a spy for Iraq would suffice. The suspected spy need not be shown to be doing, or even planning, anything illegal when the wiretap is granted.
Second, a “significant” purpose of the investigation must be foreign intelligence. So the investigation of the Iraq spy cannot be dedicated, for instance, to investigating his series of suspected parking violations, or his use of prostitutes.
Previously, foreign intelligence had to be a “primary purpose” of the investigation. Now only a “significant purpose” is required. Another purpose — indeed, even the “primary purpose” — now can be to gather, not foreign intelligence, but evidence for a foreign-intelligence-related criminal prosecution.
The FISA Court of Review’s Decision on Wiretaps and Interagency Cooperation
After reviewing FISA’s legislative history, as well as relevant precedents, the Court of Review concluded that the boundary between foreign intelligence investigations, and foreign-intelligence-related criminal law enforcement should be more porous.
It was fine, the Court held, if the two investigations merged in some instances, and were together governed by the lax, two-prong wiretap standard outlined above. It was also fine — as a March 2002 Ashcroft memorandum had proposed — to relax procedural limits placed on how and when law enforcement and the national security branch of the FBI can share information and investigations.
According to the Ashcroft memo, criminal prosecutors may now have access to “all information developed” in FBI counterintelligence investigations. That includes, prominently, FISA-acquired information that was not gathered in compliance with the Fourth Amendment.
These prosecutors can also provide advice on “all issues necessary to the ability of the Unites States to investigate or protect against foreign attack. . . .” In addition, they can advise FBI counterintelligence about the initiation, operation, and continuation or expansion of FISA searches and surveillance.
Finally, the Review Court also held, separately, that the new, lowered standard for gaining a warrant under the FISA procedures did not violate the Fourth Amendment’s protections against unreasonable “search and seizure,” given the important government interest in national security.
In support of its holding, the Court of Review relied on United States v. United States District Court (Keith). There, the U.S. Supreme Court acknowledged that lesser standards relating to search and seizure might be appropriate for cases relating to national security. But it also made clear that lower standards are permissible only with respect to the collection of information related to counter-intelligence — not when the government is “attempting to gather evidence of specific criminal prosecutions.”
Keith thus did not suggest that foreign intelligence gathering rules could be employed if the primary purpose was to prosecute criminal conduct; indeed, it suggested the exact opposite.
Moreover, a pre-FISA case decided by the U.S. Court of Appeals for the Fourth Circuit, United States v. Truong, similarly and compellingly argues that national security and criminal prosecution are very different things. National security concerns recede, and individual privacy interests come to the fore, the Truong court held, when “the government is primarily attempting to form the basis of a criminal prosecution,” not to gather intelligence.
The Court of Review’s response to this precedent was disappointing, to say the least. It also suggests that it is hard to draw the line between intelligence-gathering and criminal prosecution.
That may be correct, at least in some cases, but it’s still no reason to give up on the whole enterprise — especially when the alternative is eviscerating the Fourth Amendment’s basic guarantees. When it is hard to draw the line, the court should err in favor of protecting individual rights under the Fourth Amendment.
The Likely Results of the FISA Review Court’s Decision
The result is that now criminal law enforcement can legally direct, or at least heavily influence, FBI investigations related to foreign intelligence. Indeed, it will have an incentive for doing so: Working with the FBI will mean it can circumvent otherwise-applicable Fourth Amendment-based requirements.
Besides being disturbing in itself, this development will likely mean electronic surveillance will increase: After all, it just got easier for, and at the same time more useful to, authorities.
Since it is easier to obtain a so-called FISA warrant, law enforcement may choose to spy on a greater number of individuals in order to gather data and information. It may also rely on this process to search a broader class of persons, in the name of counter-intelligence, because it has a newfound ability to do so.
Targets of FISA investigations will not receive notice of the clandestine searches and surveillance. With a typical search warrant, the government provides you with notice — either before or after the search has been conducted.
If someone is prosecuted based on evidence gathered via a FISA warrant, the government’s application for a warrant can be sealed. This happens when the Attorney General certifies that it is in the interest of national security to do so. Thus, criminal defendants will be unable to challenge the basis under which the warrant was granted.
Probable cause of a crime will no longer have to be shown in foreign-intelligence-related investigations by criminal law enforcement. Evidence gathered under this watered down standard will be admissible in court. Or perhaps the government will simply use these investigations to gather evidence that will never be offered in court, but will aid it nonetheless.
In effect, the Review Court created a “Fourth-Amendment free zone” that not only the FBI, but also other law enforcement agencies, can enjoy. As long as the context is an investigation with a “significant” (but not necessarily “primary”) foreign intelligence purpose, and the crimes themselves are also foreign intelligence-related, the relaxed standard governs.
Even when so-called “walls” were in place, information was leaked between the FBI and law enforcement on numerous occasions, as the FISA Court noted earlier this year. Now, when no such walls are required, the situation can only get worse.
The U.S. Supreme Court can still review the FISA Review Court’s ruling. Since the Department of Justice was the only “party” to the appeal, however, this seems rather unlikely. One can only hope that the FISA Court itself becomes increasingly vigilant when considering government requests for warrants relating to foreign intelligence.
ANITA RAMASASTRY is an Assistant Professor of Law at the University of Washington School of Law in Seattle and the Associate Director of the Shidler Center for Law, Commerce & Technology. She is also a columnist for Writ.Findlaw, where this essay originally appeared.