APFN
SECRET COURT - SECRET LAWS
Mon Nov 18 17:23:02 2002
208.152.73.252


FISA: Foreign Intelligence Surveillance Act
PL 95-511 (S.1566)

Public Law: 95-511 (10/25/78)
SPONSOR: Sen Kennedy (introduced 5/18/77)
SUMMARY:

(REVISED AS OF 10/05/78 -- Conference report filed in House, H. Rept. 95-1720)

Foreign Intelligence Surveillance Act - Title I: Electronic Surveillance within the United States for Foreign Intelligence Purposes - Permits the President, acting through the Attorney General, to authorize electronic surveillances for foreign intelligence purposes without a court order in certain circumstances. Requires the Attorney General: (1) to certify that the minimization procedures governing these surveillances meet certain standards; and (2) to forward such procedures to the House and Senate intelligence committees at least 30 days prior to their going into effect. Provides for the Attorney General to direct a specified common carrier to render assistance. Directs the Attorney General to transmit a copy of the certification for electronic surveillance to the appropriate court where it is to be maintained under security measures and remain seal, except in certain circumstances.

Requires the Chief Justice of the United States to designate seven district court judges, who shall constitute a special court, each of whom shall have jurisdiction to hear applications for and grant orders approving electronic surveillance anywhere within the United States. Requires the Chief Justice to designate three Federal judges to comprise a special court of appeals which shall have jurisdiction to hear an appeal by the United States from the denial of any application. Grants the United States a further right to appeal an affirmance of denial to the Supreme Court. Provides that such judges shall serve for a maximum of seven years and shall not be eligible for redesignation.

Requires each application for any order approving electronic surveillance for foreign intelligence purposes to be approved by the Attorney General and to include among other information: (1) the identity of the officer making the application; (2) the authority conferred on the Attorney General by the President and the approval of the Attorney General to make the application; (3) the identity, if known,n of the subject of the surveillance; (4) the fact and circumstances justifying belief that the target of surveillance is a foreign power or an agent of a foreign power; (5) a description of the type of information sought and a certification by one of specified Federal officers that such official deems the information sought to be foreign intelligence information, and information which cannot feasibly be obtained by normal investigative techniques; (6) a statement of the period of time for which the surveillance is required; and (7) a statement of procedures to be taken to minimize intrusion into the privacy of United States persons.

Directs the judge to enter an ex parte order as requested or as modified approving the electronic surveillance if he finds that the criteria specified have been met. Allows issuance of orders to approve surveillance for 90 days or the period necessary to achieve its purposes, whichever is less. Permits extensions of orders upon application for an extension made in the same manner as required for an original application.

Authorizes the Attorney General, upon a reasonable determination that an emergency situation exists, to authorize the emergency employment of electronic surveillance if the appropriate judge is informed by the Attorney General of such authorization at the time it is made and if an application is made as soon as practicable but not more than 24 hours after authorization. Requires, in the absence of a judicial order, that surveillance terminate when the information sought is obtained, when the application for an order is denied, or 24 hours after authorization, whichever is earliest. Directs the Attorney General to retain applications and orders for electronic surveillance for at least ten years.

Prohibits the use or disclosure of any information concerning any United States person acquired from a disapproved emergency surveillance in any manner by Federal officers or employees without the consent of such person. Allows the Government to use such information to protect the life or the physical safety of a person, upon the approval of the Attorney General.

Authorizes electronic surveillance, not targeted against the communications of any particular person, by officers, employees, or agents of the United States in the normal course of their official duties. Specifies that such electronic surveillance shall be solely to: (1) test the capability of electronic equipment; (2) determine the existence and capability of electronic surveillance equipment being used by persons not authorized to conduct such surveillance; and (3) train intelligence personnel.

Allows information acquired from electronic surveillance conducted pursuant to this Act to be used and disclosed only for designated purposes or for the enforcement of the criminal law.

Provides for motions to supress evidence obtained or derived from electronic surveillance. Sets forth the procedure for determining the legality of electronic surveillance.

Requires the Attorney General to submit an annual report to the Administrative Office of the United States Courts and to Congress, including the number of applications made for orders and extensions of orders approving electronic surveillance and the number of such orders and extensions granted, modified, and denied.

Requires the Attorney General to inform the House and Senate Committees on Intelligence semiannually concerning all electronic surveillance under this Title.

Requires the Committees to report annually for five years to the House and Senate concerning the implementation of this Act, with recommendations.

Makes it a criminal offense for officers or employees of the United States to intentionally engage in electronic surveillance under color of law except as specifically authorized or to disclose information through unlawful electronic surveillance. Imposes civil and criminal liability for such violations and authorizes the recovery of actual damages, punitive damages, and reasonable attorney's fees by an aggrieved person other than a foreign power.

Permits the President, through the Attorney General, to authorize electronic surveillance without a court order to acquire foreign intelligence information for up to 15 days during a Congressionally declared war.

Title II: Conforming Amendments - Makes conforming amendments to existing criminal laws.

Title III: Effective Date - States that the provisions of this Act shall become effective upon enactment. Stipulates that any electronic surveillance approved by the Attorney General to gather foreign intelligence information shall not be unlawful if that surveillance is terminated or an order approving that surveillance is obtained within 90 days following the designation of the chief judges pursuant to this Act.
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Secrets and Lies
Seventy-five little reasons to be terrified of the FISA court.
By Dahlia Lithwick
http://www.slate.msn.com/?id=2070287

The Fourth Amendment guarantees that "the right ... against unreasonable searches and seizures … shall not be violated." Two hundred years of case law and Title III of the Omnibus Crime Control and Safe Streets Act of 1968 provide that if the government wants to eavesdrop on your conversations or search your possessions for the purposes of bringing criminal charges, it must first provide a judge or magistrate with evidence of "probable cause" that a crime has been committed. No probable cause, no wiretap, no warrant, and no quickie search just for the fun of it.

The exception to this principle arises with respect to presidential authority and national security. Presidents from Roosevelt to Bush have asserted the constitutional right to authorize surveillance without a warrant, where national security—as opposed to crime control—is at issue. Courts generally agreed, and it wasn't until after Richard Nixon gave a whole new meaning to both surveillance and national security that Congress, in 1978, enacted the Foreign Intelligence Surveillance Act, allowing the executive branch to still conduct surveillance and searches for foreign security purposes, but only subject to the oversight of a supersecret FISA "spy court." First mistake: ensuring presidential openness and transparency by creating a secret court.

The FISA court permits warrantless government surveillance so long as the primary purpose is to obtain foreign intelligence information. Under FISA, the government needn't show probable cause that a crime has occurred; FISA surveillance orders are valid for 90 days as opposed to 30 days for ordinary search warrants; the target of surveillance is never advised of this surveillance; and the application itself and supporting affidavits are filed under seal so that neither the target nor his attorney can ever see the allegations against him. The Foreign Intelligence Surveillance Court is comprised of 11 federal district court judges secretly selected by the chief justice of the United States. These judges preside in a secret windowless courtroom, behind elaborately locked doors on the top floor of the Department of Justice on Washington's Pennsylvania Avenue NW. James Bond, Austin Powers, and Underdog take turns guarding the door.

Following Sept. 11, Congress scrambled to enact legislation to prevent future terrorism. In the six weeks lawmakers gave themselves to enact the USA Patriot Act, they had just enough time to rubber-stamp John Ashcroft's Christmas wish list with scant scrutiny of the legal necessity or constitutionality of his myriad requests. That flapping noise we are now hearing about secret courts is the sound of these chickens coming home to roost. The Patriot Act amended FISA so that foreign intelligence gathering need no longer be the "primary" purpose of the surveillance, so long as it's a "significant purpose." In other words, thanks to the Patriot Act, the primary purpose for a warrantless FISA wiretap or search can now be evidence collection for criminal prosecution or the fact that someone just looks kind of creepy.

The tussle between John Ashcroft and the secret court followed Ashcroft's secret request last March that this provision of the Patriot Act—lowering the "firewall" between DOJ prosecutors and foreign intelligence investigators—be enforced. He asked the court to give him what Congress had already promised: the right to use FISA searches to circumvent the Fourth Amendment warrant requirement in every criminal prosecution tangentially related to "national security." He wants the criminal division to direct all future FISA/fishing expeditions and to reconfigure FISA as a prosecutorial—rather than surveillance—tool. He asked, in other words, for FISA to become his surveillance bitch.

In a hugely unprecedented Memorandum Opinion
SEE MEMORANDUM IN PDF FORMAT:
http://www.washingtonpost.com/wp-srv/onpolitics/transcripts/fisa_opinion.pdf

released last week by the secret court, the judges refused Ashcroft's request. This same court that has never released an unclassified opinion, that has granted over 10,000 FISA surveillance applications and rejected none over 23 years, this court that operates outside the norms of adversarial proceedings, and which thus ends up OKing virtually every document that flutters across its secret desk, this court refused to allow Ashcroft to tear down the wall between foreign investigation and criminal prosecution. Finding that "the collection of foreign intelligence information is the raison d'etre for the FISA," the court refused to allow the criminal division to swallow the FISA court whole. Ashcroft—who appealed the decision last week to a super-duper-secret FISA appeals court that has never before been convened—claims that an inability to share information between investigators and prosecutors hamstrings his ability to fight terrorism. But the court pointed out that there are already ample mechanisms for "controlled" information sharing between the FBI and criminal divisions; it's simply that the criminal division "may not direct or control FISA investigations."

The part of the opinion that gained the most attention was the "FISA lies," although they were not really relevant to the court's decision. It seems that in September 2000, the government came forward and reported that it had made about 75 material misstatements of fact in its FISA applications, including a false certification that a FISA target was not under criminal investigation. Virtually every false statement involved misstatements about information-sharing between the criminal and intelligence divisions. These misstatements happened in the Clinton administration, not Bush's. Most troubling: Had the Justice Department not come forward, the FISA court would never have learned of these lies.

No one should be surprised that misrepresentations were made: The reason we have an adversarial system in the first place is to test the truth of prosecutors' claims. The only thing the FISA court proved was that when wolves are guarding the henhouse, they eat a lot of coq au vin.

While the FISA court sidestepped the constitutional question before it, the court held fast to the premise that warrantless searches may be used only for national security purposes. But does it really matter whether there is a firewall between criminal prosecutors and FBI investigators or which of them directs government surveillance? Evidence is evidence, right? Who cares where it comes from? The framers cared a little. Just because evidence is needed to prosecute crimes doesn't make obtaining evidence an end in itself. The point of the warrant requirement was to keep the state from inventing/planting/hypothesizing evidence without allowing you to contest it. By putting probable cause on the record, testing it before a neutral judge, and advising the target of its existence, we guard the wall between reasonable searches and government harassment. And this is why the government's 75 FISA lies are so important: They are more or less an "I told you so" postcard from the framers.

Ashcroft points out that the Patriot Act itself authorized the destruction of the wall between collecting foreign intelligence and criminal prosecutions. It did. The Patriot Act also authorized possibly unconstitutional roving wiretaps, "sneak and peak" warrants, and an expansion of FISA searches from "foreign powers or agents" to U.S. citizens and lawful residents. Ashcroft himself has unilaterally asserted the constitutionality of eavesdropping on attorney-client conversations, indefinite detentions of suspected terrorists, and closed military tribunals. Thankfully, it's not for Congress or John Ashcroft to declare unconstitutional laws constitutional. That job belongs to the courts.

Whether or not the courts will preserve the wall between reasonable searches and unreasonable ones, whether they care about the wall between foreign surveillance and domestic prosecution remains to be seen. The courts have tended to defer to the executive branch in wartime. But the courts also know why they are in business. And "secret courts" by their very nature undermine what's best about the judiciary: They do away with openness, legitimacy, published opinions, judges with names, and adversarial proceedings. Without open courts, you might just as well just flip a coin.

• Appeals court lifts FISA restrictions

  — Michael Kirkland, Mon Nov 18 17:46
• constitutional law: an overview — APFN, Mon Nov 18 17:34