Center for National Security Studies
Protecting civil liberties and human rights
Director
Kate Martin
Memorandum to Interested Persons.
From: Center for National Security Studies, Kate Martin
Re:
Proposed amendments to Foreign Intelligence Surveillance Act
Date:
July 31, 2002
Summary: The Senate Select Committee on Intelligence will hold a hearing on July 31,
on two proposed amendments to the Foreign Intelligence Surveillance Act: S. 2586 (by Sens.
Schumer and Kyl), which would allow FISA surveillance of non-citizens suspected of planning
“lone wolf” terrorist activities, and S. 2659 (by Senator DeWine), which would replace the
constitutionally required “probable cause” standard in the statute with the lesser “reasonable
suspicion” standard. Both amendments would so fundamentally alter FISA standards as to
render surveillance thereunder a violation of the Fourth Amendment.
FISA authorizes secret wiretaps and secret searches of homes and offices in the United
States on a lesser standard and with fewer privacy protections than are generally required by the
Fourth Amendment because such surveillance is aimed at gathering foreign intelligence, not at
investigating individuals. Authorizing FISA surveillance against individuals with no showing
that they are acting on behalf of a foreign terrorist organization or government, as contemplated
by S. 2586, would be inconsistent with the fundamental statutory scheme; the amendment would
eliminate the constitutional requirement that the lesser standards and privacy protections
authorized for FISA surveillance be limited to use against foreign powers and their agents. If
additional surveillance authority of suspected “lone wolf” terrorists is necessary, such authority
is a law enforcement matter, not a foreign intelligence one. It is a matter squarely within the
jurisdiction of the Judiciary Committee.
Similarly, the DeWine amendment would replace the constitutionally required standard
of “probable cause” with “reasonable suspicion” in violation of the Fourth Amendment.
1120 19th Street, N.W., Suite 800, Washington, D.C. 20036
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FISA. The Foreign Intelligence Surveillance Act was enacted in 1978 in the wake of
revelations that the FBI, with the authorization of every President prior to 1972, had been
conducting secret warrantless wiretaps and secret searches or “black bag jobs” on hundreds, if
not thousands of individuals. In 1972, the Supreme Court rejected the President’s claim that he
had inherent constitutional authority to conduct surveillance and searches for national security
purposes outside the limitations of the Fourth Amendment, and held that searches and seizures
conducted for national security purposes are squarely within the ambit of the Fourth
Amendment.1 United States v. United States District Court, 407 U.S. 297 (1972)(“Keith case”).
In response, Congress enacted FISA to grant authority to the government to conduct
national security surveillance and established procedures to meet the requirements of the Fourth
Amendment. In the Keith case, the Court had suggested that the warrant requirements of the
Fourth Amendment might be different for “foreign powers or agents of foreign powers” and
Congress and the Administration, with the active involvement of civil liberties groups, worked
together to craft the careful balance incorporated in FISA. This balance met the critical needs for
foreign intelligence gathering concerning foreign governments and organizations, while
implementing the Fourth Amendment’s privacy protections for individuals in the United States.
While the Congress authorized surveillance in the U.S., on a lesser standard than is required in
law enforcement cases, it limited such surveillance in order to meet constitutional requirements.
Congress’s judgment that the FISA procedures satisfy Fourth Amendment requirements,
including its warrant, probable cause and reasonableness requirements, has been upheld by all
the courts that have considered the issue since then.
In particular, FISA authorizes secret wiretaps, and since 1995, secret searches of houses,
offices and computers on a lesser standard than probable cause of criminal activity: namely
probable cause that an individual target is an agent of a foreign government or organization
engaged in international terrorism, espionage or sabotage. In addition, while a key requirement
of the Fourth Amendment is that the government give notice to the target of a search or seizure,
Wilson v. Arkansas, 514 U.S. 927 (1995) , the FISA authorizes the government to keep the
electronic surveillance secret even after it ends and not notify the target that he has been
wiretapped, as is required for all other wiretaps. Likewise under the FISA, the government is
1
Congress similarly rejected the claim of inherent presidential authority for national security surveillance
when the FISA outlawed surveillance not authorized pursuant to statute.
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allowed to conduct secret searches of homes and offices without ever notifying individuals that
their homes have been searched.2 One result of such secrecy is that there is never any
opportunity for full adversarial judicial review of the legality of the surveillance.3
The only time an individual is told that he has been the subject of FISA surveillance is
when he ends up as a defendant on criminal or immigration charges. Even then FISA
information is almost always withheld from him. He is not allowed to obtain the warrant
application for the FISA surveillance or search and therefore has no basis to challenge the
lawfulness of the surveillance. He is not even entitled to obtain transcripts of his own
conversations, unless the government seeks to introduce them as evidence against him, thus there
is no safeguard against inaccurate translations or transcriptions of intercepted conversations. 4
These lesser standards and protections are constitutional only because of two key
limitations contained in FISA: first, such searches and surveillance must be carried out to obtain
foreign intelligence and second, such surveillance may only be targeted against foreign powers
or their agents.
S. 2586. The Schumer-Kyle amendment, in authorizing surveillance of individuals,
when there is no probable cause that they are agents of a foreign power would eliminate these
constitutionally required limits. The purpose of the amendment is to allow surveillance under
FISA of a “lone terrorist, unassociated or unaffiliated with terrorist groups,” without “having to
prove initially a connection to a foreign terrorist organization or foreign country.” Colloquoy
between Attorney General Ashcroft and Senator Kyl on July 25, 2002 before the Senate
Judiciary Committee.
The extraordinary secret powers of FISA are properly limited to the gathering of
intelligence about foreign governments or groups, they may not constitutionally be extended to
surveillance of non-citizens when there is no probable cause that the non-citizen is acting on
behalf of a government or foreign terrorist organization.
As the Senate Intelligence Committee
recognized in 1978 in approving FISA, the reasonableness of the departures in FISA from
conventional Fourth Amendment doctrine, especially regarding non-citizens depends “upon an
2
The constitutionality of secret physical searches authorized by Congress in 1994 has been called into question by
the 1995 Wilson decision that notice and knock are constitutionally required.
3
The government has successfully prevented individuals, who have good reason to suspect that they may have been
the target of unlawful FISA surveillance, from even challenging the surveillance in court..
4
While such procedures may be necessary in foreign intelligence investigations, in our view, they violate
basic due process requirements, when applied to criminal defendants.
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assessment of the difficulties of investigating activities planned, directed, and supported from
abroad by foreign intelligence services and foreign-based terrorist groups.” Senate Report 95 701 at 14, March. 14, 1978 re Foreign Intelligence Surveillance Act of 1978 .
While the Supreme Court suggested that foreign powers and their agents may be subject
to different Fourth Amendment standards, it has never held that surveillance conducted in the
U.S. of foreign individuals is not governed by Fourth Amendment standards. There is no support
for the assumption in the Schumer-Kyle amendment that non-citizens in the U.S. have as little
Fourth Amendment protection as the government of Russia. Nor is there any constitutional basis
for treating them the same, because the serious national security and intelligence – as opposed to
law enforcement – interests simply are not present when there is no probable cause that an
individual is acting on behalf of a government or group.
Such non-citizens are of course, already subject to surveillance. All individuals are of
course subject to surveillance pursuant to the Fourth Amendment, when there is probable cause
that they are engaged in or planning criminal activity. In addition, the FISA already provides for
a lesser non-criminal standard of probable cause for surveillance of non-U.S. persons, than for
citizens and legal permanent residents, when there is probable cause that such non-citizens are
acting as an agent of a foreign power on behalf of a foreign government or terrorist group. FISA
specifically already provides for the “surveillance of nonresident aliens who act in the U.S. as
members of international terrorist groups regardless of whether or not such individuals may
engage in unlawful acts” Conf. Rep. 95-1720, Oct. 5, 1978 at 21.
By the most peculiar device of defining non-citizens as “foreign powers” and thereby
eliminating the requirement of probable cause that an individual be acting as a agent of a foreign
power, the Schumer-Kyle amendment in essence assumes that the Fourth Amendment simply
doesn’t apply to government searches and seizures in the United States directed against noncitizens. Such an extraordinary evisceration of Fourth Amendment protections is without
support in the law. Both the Justice Department and the Congress recognized in passing the
FISA that “foreign persons are protected by the Fourth amendment when they are in the United
States.” Senate Report 95-701 at 14, March 14, 1978; House Report 95-1283 re Foreign
Intelligence Surveillance Act (Intelligence Committee), at 32, June 8, 1978. The amendment
would conflict with the teachings of the Supreme Court that the Fourth Amendment applies to
searches and seizures in the U.S. and protects those who are voluntarily here without regard to
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their citizenship. See Abel v. United States, 362 U.S. 217 (1960), in which the Supreme Court
applied the Fourth Amendment to the government’s search of a KGB colonel, who came to the
U.S. as a Soviet spy.
If adopted, the Schumer-Kyle amendment would authorize the secret surveillance of
millions of individuals, who visit and live in the United States as non-citizens, without meeting
Fourth Amendment standards of probable cause, reasonableness, notice or adversarial judicial
review. It is unnecessary and unconstitutional.
For more information, please call Kate Martin at 202-721-5650.