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Foreign Intelligence Surveillance Court: Fisa Court
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[I]n a third case, the special review court for FISA, the equivalent of a Circuit Court Of Appeals, opined differently should FISA limit the President's inherent authority for warrantless searches in the foreign intelligence area. In In re Sealed Case, 310 F.3d 717, 742 (Foreign Intel. Surv. Ct. of Rev. 2002) the special court stated “[A]ll the other courts to have decided the issue [have] held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information . . . . We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.”
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The Senate Judiciary Committee last week released a decision by a secret court that determines issues arising under the Foreign Intelligence Surveillance Act (FISA). This court is known as the FISA court. This is the first time since the FISA court was established that it has released an opinion. Major news outlets covered the event, but these stories -- missing the core issue -- focused largely on the court's mention of 75 cases in which the FBI and DOJ gave erroneous information to the court.
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All of those crimes may be called "foreign intelligence crimes," said the review court, and FISA clearly contemplates their prosecution. "It is virtually impossible to read the 1978 FISA," the court concluded, "to exclude from its purpose the prosecution of foreign intelligence crime." The government can have that as a purpose. Indeed, as the Justice Department now asserts, prosecution can be the primary purpose. And the reason is one that today is all too obvious. As the court stated, "Arresting and prosecuting terrorist agents . . . for a foreign power may well be the best technique to prevent them from successfully continuing their terrorist . . . activity."
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Applications for court orders authorizing searches or surveillance under FISA are made to the FISC under oath by a federal officer with the approval of the Attorney General, the Acting Attorney General, or the Deputy Attorney General. 50 U.S.C. §§ 1801(g), 1804, 1823. The application must identify or describe the target of the search or surveillance, and establish that the target is either a "foreign power" or an "agent of a foreign power." 50 U.S.C. §§ 1804(a)(3), 1804(a)(4)(A), 1823(a)(3), 1823(a)(4)(A).
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Under FISA, for example, the FBI submits warrant applications to the Foreign Intelligence Surveillance Court, a secret court that hears the government's applications ex parte (hearing one side only). In order to obtain warrants under FISA... the government does not have to demonstrate probable cause of a crime.3 Instead, the FBI must demonstrate only that there is probable cause to believe that the target of the surveillance is an agent of a foreign power.4 In order to obtain FISA warrants against "U.S. persons" (i.e., U.S. citizens and legal permanent residents of the United States), however, the government also has to establish that the activities "involve" or "may involve" a violation of criminal statutes (a lower standard than applicable under ordinary criminal law).5 For "non-U.S. persons," on the other hand, the government does not have to make any showing that the suspected foreign agent is doing, or is planning to do, anything illegal.6
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Denials of FISA applications by the FISC may be appealed to the Foreign Intelligence Surveillance Court of Review. The Court of Review is a three judge panel. Since its creation, the court has only come into session once in 2002.
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