Class #6: Electronic Surveillance: The Demise of The Wall Professor Emily Berman Thursday, September 11, 2014
Thursday, September 11, 2014 Wrap up the mechanics of FISA The Wall Its genesis the aftermath of Truong & FISA Its drawbacks e.g., Moussaoui Its eventual demise In re Sealed Case 2
Government applies to the FISC for a surveillance order. The application must show: Probable cause that the target is, and that the targeted facilities are used by, a foreign power or agent of foreign power. The information being sought is FII. Attorney General s approval. Minimization procedures are in place. 3
Targeting rules USPs can only be AFPs if they may be engaging in unlawful activities, such as unlawful clandestine intelligence gathering on behalf of a FP. USPs may not be targeted solely on the basis of First-Amendmentprotected activity. Non-USPs may be targets merely by working for a foreign government. 4
What about the defendant in Keith, who was accused of bombing a CIA office? He is not a FP or an AFP. Section 1801(b)(1)(c) permits targeting of someone who engages in international terrorism (a/k/a the lone wolf provision). (593). Does he meet that definition? Applies only to non-usps. What if he was not a USP? Only if his actions meet the definition of international terrorism in 1801(c). 5
50 U.S.C. 1801(e) (584 n.7): [I]nformation that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against attack, sabotage or international terrorism, espionage [I]nformation with respect to a foreign power that relates to, and if concerning a United States person is necessary to, the national defense or foreign affairs of the US 6
Minimization procedures: Can be undertaken at three points in time: acquisition, retention, dissemination. Effort to segregate, and prevent from being used & disseminated, certain info. 50 U.S.C. 1801(h): FII need not be minimized. Only nonpublicly available information concerning unconsenting USPs must be minimized. 7
50 USC 1801(f) defines electronic surveillance as the acquisition of any 1) wire (fiber-optics) or radio (satellite) communication to/from an intentionally targeted USP in the US; 2) wire communication to/from any person in the US, if such acquisition occurs in the US; 3) radio communication, if the sender & all recipients are in the US; or 4) Installation of a surveillance device in the US for information... That would require a warrant for law enforcement purposes. 8
1978 FISA (50 U.S.C. 1804): Required the government to certify that the purpose of the surveillance was to obtain foreign intelligence information. Truong, 1982, 4th Circuit: No warrant is required when (1) the target of surveillance is a foreign power or its agent & (2) the primary purpose of the search/surveillance is to collect foreign intelligence. 9
1978 FISA (50 U.S.C. 1804): Required the government to certify that the purpose of the surveillance was to obtain foreign intelligence information. 2001 PATRIOT Act: Amended 50 U.S.C. 1804 to require that a significant purpose of the surveillance is to obtain foreign intelligence information. 10
Facts: Government sought orders to reflect the change enacted by the PATRIOT Act by dismantling The Wall. FISA judges initially resisted the change. Government then filed the first appeal of a FISC decision since FISA passed in 1978. 11
Holding (604): So long as the government entertains a realistic option of dealing with the [foreign] agent other than through criminal prosecution, it satisfies the significant purpose test. Impermissible uses of FISA The government s sole objective may not be to obtain evidence of criminal conduct. The government s primary objective may not be to prosecute a non-fi crime. 12
50 USC 1801(f) defines electronic surveillance as the acquisition of any 1) wire or radio communication to/from an intentionally targeted USP in the US; 2) wire (fiber-optics) communication to/from any person in the US, if such acquisition occurs in the United States; 3) radio (satellite) communication, if the sender & all recipients are in the US; or 4) Installation of a surveillance device in the US for information... That would require a warrant for law enforcement purposes. 13
Technological changes + 1% doctrine = TSP: Post-9/11 the government fears that members of AQ are communicating with people in the US, plotting more attacks. Imagine that the government wants the NSA to tap OBL s phone and record all of his international calls, including calls to or from USPs in the US. Permissible under FISA? 14