U.S. COIRT GIVES JUSTICE DEPT MORE POWER TO WIRETAP CITIZENS

U.S. Court Gives Justice Department
More Power to Wiretap Citizens



The U.S. Foreign Intelligence Surveillance Court of Review issued its first opinion ever on November 18, 2002, granting the Justice Department new powers to use wiretaps in criminal cases. The Court of Review reversed an earlier decision by the Foreign Intelligence Surveillance Court, which had limited those powers out of concern for citizens’ privacy.

The Foreign Intelligence Surveillance Court (FISC) and Court of Review were established in 1978 by the Foreign Intelligence Surveillance Act (FISA) . The purpose of the FISC was to authorize electronic surveillance requests in foreign intelligence investigations. The government, represented by the Attorney General, had to seek the FISC’s approval before wiretapping. Permission was granted based on a finding of probable cause that the surveillance target was an agent of a foreign power. The determination was made regardless of whether the target was suspected of criminal activity. Information obtained under FISA rules could not be shared with criminal investigators or prosecutors unless the Justice Department sought special permission.

After September 11, 2001, the wall between criminal investigations and intelligence gathering was faulted as outdated and dangerous. The FBI and the CIA were accused of failing to share information in a way that might have prevented a terrorist group from carrying out an attack in the United States. In the USA Patriot Act, passed shortly after September 11, Congress changed the rules to require that intelligence only be “a significant purpose” of FISA warrants, not the primary one. In March 2002, Attorney General John Ashcroft submitted a memorandum to the FISC requesting approval of new information-sharing proposals. He asked that information obtained in FISA investigations be given routinely to criminal prosecutors, and that criminal investigators be allowed to direct intelligence investigations when appropriate. On May 17, in its first published opinion, the FISC granted some of the Attorney General's newly requested powers but refused to approve the information-sharing proposals. Ashcroft filed a formal appeal on August 21, the first formal challenge to the FISC in its 23-year history. The Court of Review convened for the first time on September 9, ultimately approving all of the Attorney General’s proposals.

For more detailed background, see the Electronic Privacy Information Center’s overview.

DOCUMENTS
Foreign Intelligence Surveillance Act


USA Patriot Act


Attorney General’s Memorandum (March 2002)


Foreign Intelligence Surveillance Court Opinion May 17, 2002


Justice Department’s Appeal to the Foreign Intelligence Court of Review (August 21, 2002)


Justice Department’s Supplemental Brief, filed upon request of the Court of Review (September 26, 2002)


Opinion of the Foreign Intelligence Surveillance Court of Review (November 18, 2002)


Statement of the Attorney General on the Foreign Intelligence Surveillance Court of Review opinion.

ARTICLES AND COMMENTARY

The American Civil Liberties Union’s press release on the May 17 Foreign Intelligence Surveillance Court opinion.


The American Civil Liberties Union’s press release on the November 18 Foreign Intelligence Surveillance Court of Review opinion.


Jennifer M. Collins, And the Walls Came Tumbling Down: Sharing Grand Jury Information with the Intelligence Community under the USA PATRIOT Act, 39 Am. Crim. L. Rev. 1261, (Summer 2002).


Steven H. Aden & John W. Whitehead, Forfeiting “Enduring Freedom” for “Homeland Security”: A Constitutional Analysis of the USA Patriot Act and the Justice Department’s Anti-Terrorism Initiatives, 51 Am. U.L. Rev. 1081, (August 2002).


William C. Banks & M.E. Bowman, Executive Authority for National Security Surveillance, 50 Am. U.L. Rev. 1, (October 2000).


Brendan Miniter, Truth and Justice Wall Street Journal, (August 26, 2002).


Anita Ramasastry, Why the Foreign Intelligence Surveillance Act Court was Right to Rebuke the Justice Department, Findlaw, (September 4, 2002).


Justin M. Sandberg, The Need for Warrants Authorizing Foreign Intelligence Searches of American Citizens Abroad: A Call for Formalism, 69 U. Chi. L. Rev. 403, (Winter, 2002).


OTHER RESOURCES
Information on surveillance and wiretapping from the American Civil Liberties Union


Frequently asked questions on the Foreign Intelligence Surveillance Act from the Electronic Frontier Foundation


Information on the Foreign Intelligence Surveillance Act from the Federation of American Scientists


The Electronic Privacy Information Center


United States Department of Justice


Written December 12, 2002; Last updated December 19, 2002.