Case: In re All Matters Submitted to the Foreign Intelligence Surveillance Court

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This case raised the question whether federal law enforcement officials can use the Foreign Intelligence Surveillance Act of 1978 (FISA), 50 U.S.C. § 1801 et seq., to initiate, control or direct surveillance for the purpose of criminal investigation. Using the Patriot Act, which amended FISA after the September 11, 2001, attacks, the government argued that it had the authority to use FISA orders primarily for law enforcement purposes and to initiate, control, or direct surveillance for criminal investigation. Thus, the government moved to vacate minimization and "wall" procedures for information obtained under FISA, under which national security and criminal matters were kept separate.

On May 17, 2002, FISA Court Judge Royce C. Lamberth granted a modified version of the government's motion to vacate minimization and "wall" procedures, rejecting the government's reinterpretation of FISA. Judge Lamberth held that: (1) proposed minimization procedures were not consistent with the need of United States to obtain, produce, and disseminate foreign intelligence information as mandated by FISA, and (2) proposed procedures would be modified. The Court specifically rejected the section of the proposed procedures that would have allowed law enforcement officials to initiate or control FISA searches. To comply with both FISA and the Fourth Amendment, he explained, Judge Lamberth substituted in language that established objective rules intended to permit coordination and consultation but also to prevent the government from using FISA primarily for law enforcement purposes. He approved the government's proposed procedures that allow the FBI to disseminate to law enforcement officers all information collected in intelligence investigations. Judge Lamberth concluded that given the relaxed standards for secret surveillance under FISA, authorization for FISA orders must be based on an assessment of the government's purpose and cannot extend to surveillance controlled by law enforcement officials for law enforcement purposes. In re All Matters Submitted to Foreign Intelligence Surveillance Court, 218 F. Supp. 2d 611 (Foreign Intel. Surv. Ct. 2002).

In July, the government submitted an apparently unrelated FISA application. On July 19, 2002, FISA Court Judge Harold Baker granted the July application. However, the FISA Court denied the government's request that the July application be subject to the unmodified March 2002 procedures, instead ruling that the surveillance order would be subject to the March 2002 procedures as modified by Judge Lamberth's May 17 Opinion. The government appealed this July decision to the Foreign Intelligence Surveillance Court of Review -- the first ever appeal of a FISA Court opinion.

On September 9, 2002, the Foreign Intelligence Surveillance Court of Review (held a hearing on the issues. On September 19, 2002, the ACLU, the Center for Democracy and Technology, the Center for National Securities Studies, the Electronic Privacy Information Center, the Electronic Frontier Foundation, and the Open Society Institute filed an amicus brief in support of affirming the original order.

On September 25, 2002, the government filed a supplemental brief explaining the origins of the "false dichotomy" that arose between law enforcement and non-law enforcement methods of protecting against the foreign threats to national security specified in 50 U.S.C.§ 1801(e)(1). It traced the history of Executive and Judicial Branch interpretations of FISA from 1979 to 1995. It also demonstrated how the USA Patriot Act's "significant purpose" and "coordination" amendments were together designed to overcome prior judicial interpretations of FISA. It argued that the "significant purpose" amendment does not affirmatively codify or inscribe into FISA the (false) dichotomy between foreign intelligence and law enforcement.

On November 18, 2002, the Court of Review reversed and remanded the May 17 Order. The opinion explained that: (1) FISA did not require government to demonstrate to the FISA court that its primary purpose in conducting electronic surveillance was not criminal prosecution, abrogating In re All Matters Submitted to Foreign Intelligence Surveillance Court, 218 F.Supp.2d 611, and (2) the Patriot Act's amendment to FISA, permitting government to conduct surveillance of an agent of a foreign power if foreign intelligence is a "significant purpose" of such surveillance, did not violate the Fourth Amendment. In re Sealed Case, 310 F.3d 717 (Foreign Int. Surv. Ct. Rev. 2002).