The Foreign Intelligence Surveillance Court and the FISA

The Foreign Intelligence Surveillance Act (FISA) was passed by the U.S. Congress in 1978. FISA contains special rules for the issuance of certain search and surveillance warrants. Initially, such warrants could only be used when the “primary purpose” was the collection of foreign intelligence, targeting a foreign power and/or its agents.

After 9/11, Congress passed the “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism” Act (USA PATRIOT Act). The PATRIOT Act amended a number of U.S. laws and rules of procedure, including the FISA. Among other major changes, now foreign intelligence gathering need only be a “significant purpose” of any warrant application, as opposed to the earlier “primary purpose” requirement.

Special FISA Court
The FISA created a special court to evaluate and grant warrant applications. The Foreign Intelligence Surveillance Court (FISC) was originally composed of seven federal judges “publicly” designated by the Chief Justice of the U.S. Supreme Court, though this was increased to eleven by the PATRIOT Act. Of the eleven judges, at least three must reside within twenty miles of the District of Columbia. Each judge serves a maximum of seven years and appointments are staggered so there is no excessive turnover in any one year. The FISC may grant a warrant effective anywhere in the U.S.

The proceedings of the FISC are secret and records and files of a case are sealed. They may not be revealed, except to a limited degree, even to a person whose prosecution is based on evidence obtained pursuant to such a warrant. The Chief Justice also designates three judges from the federal courts of appeals to constitute a court of review for FISC decisions, with final review by the Supreme Court itself.

Application for a FISA Warrant
An application for a FISA warrant must be made to a FISC judge based upon an affirmation, under oath, by a federal officer. In practice, these are first sent to the Justice Department for review, then sent to the FISC. The application must include:

The identity of the federal officer making the application.

The authority and approval of the Attorney General to make the application.

The identity or a description of the target of the warrant.

Statement of the facts and circumstances relied on to justify a belief that the target is a foreign power (or its agent) and each place to be searched is being used, or is about to be used, by the foreign power or agent.

A statement of proposed procedures to minimize the intrusiveness of the search.

Certification by an official appointed by the President that: what is sought is deemed foreign intelligence related; a significant purpose is to obtain foreign intelligence; the information, etc. sought cannot be reasonably obtained by normal techniques; designation of the type of foreign intelligence sought; the means intended for effecting the warrant; facts concerning any previous, similar application for a warrant made to any FISC judge; and desired duration of the warrant.

A FISA warrant requires a finding by the FISC judge that there is probable cause to believe the target is a foreign power or an agent and obtaining foreign intelligence is a “significant purpose” in seeking the warrant. Such warrants may be good for 90 days against foreign agents or up to one year for foreign powers.

The FISC in Action
Out of more than 13,000 applications for warrants, the FISC has granted all but one. Initially, out of fear that the less stringent FISA warrant requirements might tempt government officials to use FISA warrants for criminal searches and surveillance, courts strictly enforced the rule that the “primary purpose” of the warrant had to be foreign intelligence gathering. As previously noted, the PATRIOT Act relaxed this requirement, such that foreign intelligence gathering need only be a “significant purpose” of the warrant. Now, gathering evidence for a criminal prosecution may constitute the primary purpose, so long as it is related to foreign intelligence.

In light of this amendment, the government has changed its policy prohibiting cooperation between criminal and foreign intelligence forces in FISA investigations, arguing that such cooperation is necessary to effectively combat terrorism. Although the FISC originally issued an opinion stating that the government’s policy was improper, the government appealed to the FISA court of review, which reversed the FISC decision.

The court of review approved cooperation between foreign intelligence and criminal investigators and prosecutors in situations where foreign intelligence and national security concerns are implicated. The court also held, in light of national security, that the lowered standards for a FISA warrant do not violate the constitutional requirements for searches and seizures.

Thus, even though evidence gathered without a valid warrant is generally inadmissible in a criminal prosecution, a FISA warrant does not comply with the procedures that have been shown to embody constitutional protections. As a result, any evidence of criminal activity, otherwise inadmissible, may now be used in a criminal prosecution when gathered under a FISA warrant.