William Banks In 1972 the Supreme Court first confronted the tensions between unmonitored executive surveillance and individual freedoms in the national security setting. United States v. United States District Court (1972) arose from a criminal proceeding in which the United States charged three defendants with conspiracy to destroy government property — the dynamite bombing of a Central Intelligence Agency (CIA) office in Ann Arbor, Michigan. During pretrial proceedings, the defendants moved to compel disclosure of electronic surveillance. The government admitted that a wiretap had intercepted conversations involving the defendants. However, the executive had acted alone in placing the wiretap, without meeting, to the satisfaction of a magistrate, the usual Fourth Amendment requirement of probable cause, or reason to believe that a crime had been or would soon be committed. The Supreme Court found authority for national security surveillance implicit in the president's Article II Oath Clause, which includes the power to protect the government against those who would subvert, or undermine, it by unlawful means. Nonetheless, the Court was especially wary of possible abuses of the national security power because of the "privacy values at the core" of the Fourth Amendment and the convergence of First and Fourth Amendment values in national security wiretapping cases. Waiving the Fourth Amendment probable cause requirement could lead the executive to "yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy and protected speech." Although the Court ruled against the government, the Court implicitly invited Congress to develop a set of standards for domestic intelligence surveillance. Congress did not react immediately, but Justice Lewis F. Powell's opinion provided an important impetus for the development of what became the Foreign Intelligence Surveillance Act (FISA) of 1978 (P. L. 95-511, 92 Stat. 1783). Like the Supreme Court, Congress recognized that surveillance by the executive branch without a warrant and not controlled by specific laws could undermine important constitutional values contained in the First and Fourth Amendments. At the same time, Congress came to appreciate that the nature and purpose of intelligence investigations differs considerably from criminal law enforcement investigations. For that reason, the traditional warrant requirement as practiced by law enforcement might not be the best model for assuring that national security investigations strike the right balance of security and liberty.
FISA defines many categories of electronic surveillance that may be conducted, some of which go beyond conventional telephone taps and hidden microphones. Wiretaps may be used in the United States (so long as at least one party is in the United States) to obtain voice communications, teleprinter, telegraph, facsimile, and digital communications. In 1994, Congress amended FISA to authorize submission of applications for an order approving a physical search in the United States. The FISA standards are far easier to meet than the standard for obtaining a traditional law enforcement search warrant, which requires evidence that the individual whose property is searched was involved in a crime. Once approved, a search may be conducted at any time within forty-five days. Notice need not be given if the attorney general determines that national security requires secrecy or if the target is not a "United States person" as defined in FISA — a citizen, permanent resident alien, or an association of such persons. The FISA authorizes the attorney general to approve applications for warrants to conduct electronic surveillance or physical searches within the United States for the purposes of foreign intelligence, if the target is a "foreign power" or "agent of a foreign power." If the attorney general approves an application for a warrant pursuant to FISA, the request is then submitted to any of the judges who sit on a specially constituted court, created by FISA. The Foreign Intelligence Surveillance Court (FISC) consists of eleven United States district court judges designated by the chief justice. These judges meet in secret and are empowered to hear applications for and grant orders approving electronic surveillance and searches anywhere within the United States under the procedures set forth in FISA. Similarly, FISA allows the chief justice to designate three district or court of appeals judges to sit as a special court of appeals to hear appeals by the government from denial of an application by one of the district judges. The government may then appeal to the Supreme Court. The FISC may permit surveillance of an official foreign power — a foreign government, or a terrorist or political group or organization controlled by a foreign government. A request for such surveillance need not describe the communications sought, the means for accomplishing the surveillance, or the surveillance devices to be employed. Targeting an "agent of a foreign power" is easier for the government to accomplish if an individual is not a "United States person." FISA expressly states that no "United States person" may become a target of FISA surveillance "solely upon the basis of activities protected by the first amendment." A FISC judge must find probable cause, on the basis of the application, that the target is a foreign power or agent of a foreign power, and that the facilities where the surveillance is directed are or will be used by the target. For "United States persons," the FISC judge must find probable cause that one of four conditions has been met: (1) the target knowingly engages in clandestine intelligence activities on behalf of a foreign power that "may involve" a criminal law violation; (2) the target knowingly engages in other secret intelligence activities on behalf of a foreign power pursuant to the direction of an intelligence network, and his activities involve or are about to involve criminal violations; (3) the target knowingly engages in sabotage or international terrorism or is preparing for such activities; or (4) the target knowingly aids or abets another who acts in one of the above ways.
One question unresolved by FISA is the extent to which the FBI can use FISA surveillance to obtain evidence for criminal prosecution. Ordinarily, law enforcement investigations have this purpose from the start. In contrast, FISA surveillances must have an intelligence purpose. Before 2001, courts that allowed evidence gathered during the surveillance to support a criminal conviction required that intelligence be the "primary" purpose of the surveillance. After September 11 and enactment of the Patriot Act, the Department of Justice sought approval from the FISC to implement new information-sharing procedures that permit criminal prosecutors or investigators to participate actively in FISA proceedings, even to the extent of initiating and controlling the surveillances approved by the FISC. The government's theory was that enforcing the criminal laws against those accused of terrorist activities also served a foreign intelligence objective. The FISC accepted most of the Department's proposal for information-sharing, but rejected the portion that would permit the criminal division to direct or control FISA procedures. Following the limited rejection by the FISC, the government appealed for the first time in the history of FISA to the special Court of Review, a never-before-constituted appellate court made up of three senior federal judges appointed by the chief justice of the Supreme Court. After a closed hearing, in November 2002 the Court of Review reversed the FISC and upheld the Department of Justice procedures, based on its reading of FISA, as amended by the Patriot Act. The Court of Review decision permits the government to use the FISA procedures for law enforcement objectives so long as there remains a "significant" foreign intelligence purpose for the surveillance or search.
In emergency circumstances, the president is permitted, through the attorney general, "[n]otwithstanding any other law," to authorize electronic surveillance without a court order for periods up to a year upon a written certification that such surveillance is "solely directed" at communications between or among foreign powers, or a technical intelligence from property or premises "under the open and exclusive control of a foreign power." These emergency powers may be exercised only where (1) there is "no substantial likelihood" that a communication involving a United States person will be acquired, and (2) the attorney general meets minimization requirements and reports these requirements to the intelligence committees and transmits his or her certification of such surveillance under seal to the FISC.
Although the Supreme Court has not considered the constitutionality of FISA, the lower courts have uniformly followed United States v. Duggan (1984) in upholding the FISA procedures. (That ruling stated that FISA is a "constitutionally adequate balancing of the individual's Fourth Amendment rights against the nation's need to obtain foreign intelligence information.") In addition, the extent to which the government may rely on FISA to gain information for the purposes of prosecuting suspected terrorists remains unclear, although the November 2002 Court of Review decision settled the matter for the near term.
See also: Antiterrorism and Effective Death Penalty Act; USA Patriot Act.
Dycus, Stephen, et al. National Security Law. 3d ed. Boston: Aspen Law and Business, 2002.
Maas, Peter. Killer Spy: The Inside Story of the FBI's Pursuit and Capture of Aldrich Ames, America's Deadliest Spy. New York: Warner, 1995.
Polmar, Norman, and Thomas B. Allen. Spy Book: The Encyclopedia of Espionage. New York: Random House, 1998.
The "Oath Clause" in Article II of the Constitution states: "Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: 'I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States'."
The Fourth Amendment guarantees "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."