Foreign Intelligence Surveillance Court of Review

In 1978, Congress enacted the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C.A. §§ 1800–1829 (West 2003) to prescribe separate procedures for federal agents to follow when conducting foreign surveillance. FISA created two courts with special jurisdiction: the Foreign Intelligence Surveillance Court (FISC) and the Foreign Intelligence Surveillance Court of Review (FISCR). Until 2002, the FISC had never published an opinion, and the FICSR had never convened.

In 1972, the U.S. Supreme Court admonished Congress that the latter should consider enacting legislation that differentiated between criminal investigations and intelligence surveillance designed to provide for domestic security. United States v. U.S. District Court, 407 U.S. 297, 92 S. Ct. 2125, 32 L. Ed. 2d 752 (1972). When Congress enacted FISA, it sought to give the government greater power to conduct foreign intelligence without the heightened requirements of criminal investigations under the FOURTH AMENDMENT. The FISC was empowered to grant warrants only to the government, and FISC cases have generally been held in secret.

The FISC consists of 11 federal district court judges from the several circuits. These judges are designated by the chief justice of the U.S. Supreme Court and serve staggered terms. This lower court meets during two days each month. The FISCR consists of three judges named by the chief justice. Under FISA, the FISCR has jurisdiction to hear appeals when the FISC has denied an application submitted by the government. Between 1979 and 2002, however, no appeal had ever been filed with the review court.

The FISC may grant requests from federal governmental officials to conduct ELECTRONIC SURVEILLANCE and to conduct physical searches. The U.S. JUSTICE DEPARTMENT reviews requests submitted by the various agencies, which are then forwarded to the U.S. attorney general. The attorney general must personally approve each application that is submitted to the FISC for approval. FISA requires that each application satisfy a number of requirements, including the requirement that the purpose of the proposed surveillance or search is foreign intelligence information. This information relates to the ability of the United States to protect itself against potential hostile acts, TERRORISM, or intelligence activities of a foreign power or an agent of a foreign power.

Prior to 1994, FISA authorized only electronic surveillance. In 1994, Congress amended FISA to allow physical searches. FISA also requires that federal officials minimize contact between agents who conduct foreign intelligence surveillance and criminal investigations. These minimization procedures were designed to ensure that the federal government did not circumvent the requirements of the Fourth Amendment by using information found in foreign intelligence gathering as part of a criminal investigation. These strict procedures were considered to establish a "wall" between the intelligence gathering and criminal investigations.

In 1995, attorney general JANET RENO approved new procedures that allowed for more sharing of information between agents conducting intelligence surveillance and those conducting criminal investigations. These procedures were expanded further in 2000 by the attorney general. In 2001, when Congress approved the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT ACT), Pub. L. No. 107-56, 115 Stat. 277, it eliminated the requirement that the primary target of the surveillance had to be an agent of a foreign power.

Following the attacks on the United States by terrorists on September 11, 2001, the United States stepped up its intelligence operations. Attorney General JOHN ASHCROFT has openly advocated increased use of intelligence surveillance within the United States in order to identify terrorists who may be living within the country. The application of FISA is somewhat difficult in the investigation of suspected terrorists because the terrorists may not identify themselves with any particular nationality. Moreover, terrorists may live within the United States as legal residents.

In 2002, Ashcroft submitted a request to the FISC to reduce the minimization procedures and allow for greater sharing of information between agents gathering foreign intelligence and agents conducting criminal investigations. The instance marked the first time that the FISC heard a case en banc, meaning that all of the judges were present. The government in the case urged the court to accept the lowered minimization procedures, but the court rejected this request in its first-ever published opinion. In re All Matters Submitted to the Foreign Intelligence Surveillance Court, 218 F. Supp. 2d 611 (2002).

The government then decided to appeal the case to the FISCR. The appeal was unprecedented, and the only party to the appeal was the federal government. The court allowed the AMERICAN CIVIL LIBERTIES UNION (ACLU) and the National Association of Criminal Defense Lawyers to participate as amici curiae, against the objections of the government. On appeal, the government claimed that the dichotomy between foreign intelligence gathering and criminal investigations was an illusion and that developments in FISA should allow the Justice Department to loosen the procedures regarding the sharing of information.

The court agreed with the government's claims. In re Sealed Case, 310 F.3d 717 (2002). The court found that definition of foreign intelligence information includes such crimes as ESPIONAGE and terrorism, so differentiating between investigating these crimes and providing intelligence surveillance was difficult. Moreover, the court found that the USA PATRIOT Act allows the government to conduct wiretaps and searches of U.S. citizens and to share these results with prosecutors. The only requirement under the act is that the government must allege that a significant purpose in the investigation is to gather foreign intelligence information.

The ACLU and other organizations decried the court's decision, saying that it gave the government too much leeway in conducting foreign intelligence surveillance. Although the ACLU petitioned the U.S. Supreme Court to review the case, legal commentators did not expect the Court to accept the appeal. The only party to the appeal was the government, so no adversary actually lost in the appeal.