Chapter 19 - Congressional Authority for
National Security Surveillance
Part II
Implementation of the Foreign Intelligence
Surveillance Act of 1978, S. Rep. No. 97-691

The net effect of FISA has been to confuse intelligence
gathering with criminal law, and to enmesh intelligence in
procedures which are wholly inappropriate to it. In law
enforcement the purpose of surveillance is to prosecute
the guilty. In intelligence, the purpose of surveillance is to
gather information which should not be used for or
against any individual, but to safeguard the country from
foreign enemies. The proper cure for abuses of
surveillance for purposes of intelligence is examination
after the fact, and punishment of those who abuse their
trust.
2
Zacarias Moussaoui - the 20th Hijacker





Why was he arrested?
What had the French told the FBI about him?
Why was a FISA warrant denied by DOJ?
Why was the criminal warrant denied by DOJ?
 What did Judge Lambert have to do with this?
The Moussaoui incident lead to In re: Sealed Case
3
In re: Sealed Case No. 02-001, 02-002 (FIS
Court of Review) 310 F.3d 717 (2002)

The Lower Court Order:
...law enforcement officials shall not make
recommendations to intelligence officials concerning the
initiation, operation, continuation or expansion of FISA
searches or surveillances. Additionally, the FBI and the
Criminal Division [of the Department of Justice] shall
ensure that law enforcement officials do not direct or
control the use of the FISA procedures to enhance
criminal prosecution, and that advice intended to
preserve the option of a criminal prosecution does not
inadvertently result in the Criminal Division’s directing or
controlling the investigation using FISA searches and
surveillances toward law enforcement objectives.
4
Enforcement Provisions



What is the ‘‘chaperone requirement’’ in this
case?
 What is the chaperone supposed to do?
What if representatives of OIPR are unable to
attend such meetings?
 Who else is supposed to be informed?
What will the effect of these procedures be?
5
The Wall





What is the "wall" that the FISA court assumed
existed?
How did the court find use the authority for
minimization procedures to enforce this wall?
Does the language of FISA create this wall?
Did the lower court deal with the Patriot Act?
What was the intent of the Patriot Act as regards
the wall?
6
The History of FISA



How do the definitions of "foreign intelligence
information" and "agent of a foreign power" in the
original act undermine the notion of a wall?
What is the original intent of FISA as regards what
would be done with people caught using the act?
 What alternative could there be?
What did the appeals court say about the role of
judges and intent under the original Act?
7
United States v. Truong Dinh Hung:
Is it a proper source for the Wall?



Why does the court say that United States v.
Truong Dinh Hung does not apply to FISA?
If Hung was under FISA, what was the source of
authority?
How did the 1995 the Attorney General's
‘‘Procedures for Contacts Between the FBI and
the Criminal Division Concerning Foreign
Intelligence and Foreign Counterintelligence
Investigations" enshrine Truong Dinh Hung?
8
The Patriot Act Amendments to FISA



Purpose become "a significant purpose"
 What does this signify?
Agents using FISA warrants were allowed to consult with
criminal law investigators and still maintain that national
security was a significant purpose of the warrant
 What does the government say this means?
How do these amendments affect the 1995 procedural
wall?
 The AG updated the guidelines in 2002
9
Minimization Procedures




What are the purpose of minimization
procedures?
What do the minimization procedures allow as
regard ordinary crimes?
What is the constitutional issue with the FISA
court refusing to implement the 2002 guidelines?
Vermont Yankee, adlaw scholars?
10
The Patriot Act and the Wall

"The important point is—and here we agree with
the government—the Patriot Act amendment, by
using the word ‘‘significant,’’ eliminated any
justification for the FISA court to balance the
relative weight the government places on criminal
prosecution as compared to other
counterintelligence responses."
11
The Patriot Act and the Primary Purpose
Doctrine




How do we know the legislature intended to break
down the wall?
What if the purpose is solely criminal
investigation?
Will any defendant ever prove this? Why not?
Who has the responsibility for reviewing the
government purpose?
12
Limiting United States v. Truong Dinh
Hung


What did Keith say about warrants for national security
cases?
What is the problem with Truong"
 The false premise was the assertion that once the
government moves to criminal prosecution, its
‘‘foreign policy concerns’’ recede. ...that is simply not
true as it relates to counterintelligence. In that field the
government’s primary purpose is to halt the espionage
or terrorism efforts, and criminal prosecutions can be,
and usually are, interrelated with other techniques
used to frustrate a foreign power’s efforts. . . .
13
Special Needs Cases



How does the court distinguish special needs cases from
ordinary law enforcement?
 Drunk driving check points versus border searches,
even 100 miles from the border
 Drug testing of student athletes
"Rather, the Court distinguished general crime control
programs and those that have another particular
purpose, such as protection of citizens against special
hazards or protection of our borders."
What is the problem with the approach?
14
Mayfield v. U.S. 504 F. Supp. 2d 1023 (2007);
vacated, Mayfield v. U.S., 588 F.3d 1252 (2009)



What was the terrorist event being investigated?
Who is the plaintiff?
 How was he identified?
 Was this identification contested?
What did the government do while investigating
him?
 Was he involved?
 Did the government have to pay him?
15
Pre-FISA: Berger v. New York, 388 U.S. 41,
58-60 (1967)

The Supreme Court struck down a New York wire tap law:
 (1) “it did not requir[e] the belief that any particular
offense has been or is being committed; nor that the
‘property’ sought, the conversations, be particularly
described;”
 (2) it failed to limit the duration of the surveillance to
impose sufficiently stringent requirements on
renewals of the authorization; and
 (3) the statute “has no requirement for notice as do
conventional warrants, nor does it overcome this
defect by requiring some showing of special facts.” .
16
The Attack on FISA


What is the claim about a national security
exception to the 4h amendment?
 Has the United States Supreme Court created
such as exception?
What did Berger say about a 4th amendment
exception for fighting organized crime?
 How does plaintiff use this to support his case?
17
In re Sealed Case, Redux



How does the plaintiff argue that tearing down the
wall should encourage courts to reject special
needs exceptions to the 4th Amend?
What is his constitutional argument against the
FISA amendments?
 How do they undermine separation of powers?
 Is this what the 4th amendment is really about?
What did the court rule?
18
Alternatives to FISA




Are there alternative criminal laws that could be used
against terrorists?
Does the Court see these as a viable alternative to FISA?
What would the feds say about the limitations of using
traditional criminal law warrants?
What does the court hold about the constitutionality of
the Patriot Act amendments to FISA?
 This case presented interesting issue, but has been
vacated, putting to rest these theories.
19
Problems with FISA


"experience demonstrates three harsh realities: first, it is
often difficult to isolate U.S. persons from one or more
foreign surveillance targets in a place or through
electronic monitoring; second, it is often impossible to
determine the relationship of a potential terrorist to a
foreign power early in an investigation; and third . . . U.S.
persons are as capable as any other of wreaking
catastrophic havoc."
How does the lone wolf provision help with this?
20
NSA screening of International Phone
Calls



Is pattern matching on electronic communications
"reading the content"?
What are the impediments to getting FISA warrants for
this screening?
 Did FISA provide for area warrants?
 Did FISA contemplate individual warrants for given
individuals?
Could the government just put everyone on notice that
foreign calls may be screened and eliminate the
expectation of privacy?
21
AUMF in Iraq

"The AUMF authorizes the President ‘‘to use all
necessary and appropriate force against those nations,
organizations, or persons he determines planned,
authorized, committed, or aided the terrorist attacks of
September 11, 2001, . . . in order to prevent any future
acts of international terrorism against the United States.’’
§2(a). The AUMF clearly contemplates action within the
United States - (the attacks of September 11 ‘‘render it
both necessary and appropriate that the United States
exercise its rights to selfdefense and to protect United
States citizens both at home and abroad’’).
22
Letter from William E. Moschella




Does the president claim intrinsic authority for
national security searches, outside the 4th
amendment and congressional authorization?
How does the AUMF potentially expand FISA?
Does the AUMF supersede FISA procedures?
Is this an unambiguous reading of both laws?
23
American Civil Liberties Union v. National
Sec. Agency, 493 F.3d 644 (6th Cir 2007)



Who are the plaintiffs?
What are the complaining that the NSA is doing
illegally?
Does FISA ban intercepting and reading
communications without a warrant?
24
The Standing Problem



Can any of the plaintiffs show that their calls have
been intercepted?
 Can anyone show this?
What would be required for this showing?
 Why is that not going to happen?
Is this showing essential for standing?
 Why isn't it necessary for a declaratory
judgment that the agency is acting illegally?
25
What are the Damages?




What do plaintiffs argue is their damages?
Are they arguing that they are worried they will be
arrested?
 Even if true, why would you not bring it up?
What might damages be for an attorney with an overseas
client?
 Is this more than just invasion of privacy?
Do they have an alternatives to avoid interception of their
messages?
26
Redressablity



What is redressablity?
Would they know if there was a proper warrant?
Think about plaintiffs' arguments about what they
are worried about
 Would any of their concerns be different if the
search was based on a warrant?
 Since they could not know if there was a
warrant, would they be able to behave
differently if the NSA said it would obey FISA?
27
The Court's Holding





Why did the court find that none of the plaintiffs
had standing?
Could anyone get standing under this analysis?
Who would be the right party to bring an action?
Why is this unlikely?
Why did this make the telcom company immunity
for complying such an important issue?
28
In re Directives..., 551 F.3d 1004 (Foreign
Int.Surv.Ct.Rev. Aug 22, 2008)




Who is opposing this FISA warrant?
 On whose behalf?
Is this a facial or as-applied challenge?
Where is this surveillance taking place?
Does it include US persons?
 What would be the problem for the arguments
used if it were only non-US persons and places
29
Is there a National Security Exception
(NSE)


Does petitioner accept the NSE?
 How does petitioner argue that Keith supports
his position?
How are the drug testing, pat-frisk, and plain view
cases exceptions to the 4th Amendment?
 How does the court use them to argue for its
rejection of petitioner's claims?
30
The Limits of the NSE


What is the governmental interest in national
security - how is this like the drug testing cases?
Petitioner argues that the NSE should require that
the primary purpose of the surveillance.
 What standard does the court use to determine
if the NSE should apply?
 Is there any evidence that this was not a
national security investigation?
31
Is the Surveillance Reasonable?


Must the government follow the six factors from In re
Sealed Case?
The Attorney General hereby is delegated the power to
approve the use for intelligence purposes, within the
United States or against a United States person abroad,
of any technique for which a warrant would be required if
undertaken for law enforcement purposes, provided that
such techniques shall not be undertaken unless the
Attorney General has determined in each case that there
is probable cause to believe that the technique is directed
against a foreign power or an agent of a foreign power.
32
What about Separation of Powers?


"But this is little more than a lament about the risk that
government officials will not operate in good faith. That
sort of risk exists even when a warrant is required. In the
absence of a showing of fraud or other misconduct by
the affiant, the prosecutor, or the judge, a presumption of
regularity traditionally attaches to the obtaining of a
warrant."
Is petitioner really just complaining about bad faith? Is
there more to a 4th amendment warrant?
33
Minimization Procedures




What is incidentally collected information about
non-targeted US persons?
Why is petitioner worried about this information?
What are minimization procedures for US
persons?
How does the court use these to minimize the
importance of petitioner's concerns?
 What would the petitioner have to do to refute
this?
34
FISA Amendments Act of 2008



Does Section 702 create an area warrant for
interception of communications originating
outside the US?
Why does the Act have provisions allowing the
communications companies to contest these
warrants in court?
Why is there a provision granting the
communications companies immunity from
complying with these orders?
35