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Foreign Intelligence Surveillance Court: Fisa Court
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The May 2002 FISA court decision on the sharing of information gathered for foreign intelligence purposes with criminal investigators highlights the discriminatory and "unbalanced" effects of putting political and religious groups under surveillance. Under these rules, any evidence of a crime detected in an FBI intelligence investigation must be passed along to the criminal investigative division, which may open its own criminal investigation.
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Initially, FISA required that foreign intelligence information gathering be the sole or "primary purpose" of electronic surveillance. The Patriot Act expanded the application of FISA to situations where foreign intelligence gathering is only "a significant" purpose of the investigation. Significant is not defined and is subject to interpretation by the FISC.
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FISA regulates the surveillance and collection for foreign intelligence domestically. Notably, FISA does not control extra-territorial intelligence operations. Courts, including the District Court for the Southern District of New York, have adopted a "foreign intelligence exception" to ordinary requirements for warrants.[20]
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[One] FISC Appeals Court composed of three members hears the case for applications denied by the lower level of the court. To date, the appeals court has never heard a case. The last resort that the FISA statute provides for any surveillance application rejected by the FISC Appeals Court is an appeal directly to the Supreme Court.
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"It was not the intent of the amendments to fundamentally change FISA from a foreign intelligence tool into a criminal law enforcement tool," Leahy said. "We all wanted to improve coordination between the criminal prosecutors and intelligence officers, but we did not intend to obliterate the distinction between the two, and we did not do so."
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The lower court’s May ruling made clear that foreign intelligence probes could not be controlled by prosecutors. The Court of Review’s decision reversed that rule as well, finding that FISA courts cannot delve into “the origins of an investigation, nor examination of the personnel involved.” By limiting the amount of review the FISA court can exercise over surveillance order applications, the Court of Review transferred most of the discretion to authorize a search from the FISA court to the Department of Justice itself, a further erosion of the Constitution’s checks and balances.
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