In Re: Sealed Case
310 F.3d 717, 2002 WL 31548122 (2002)
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Rule of Law:
The Foreign Intelligence Surveillance Act (FISA), as amended by the Patriot Act, requires only that 'a significant purpose' of a surveillance be the collection of foreign intelligence information. This standard replaces the judicially-created 'primary purpose' test and permits robust coordination between intelligence and law enforcement officials, even if criminal prosecution is a primary goal of the investigation.
Facts:
- The United States government identified a U.S. person it believed to be an 'agent of a foreign power.'
- The government contended that this target was aiding, abetting, or conspiring with others in international terrorism.
- In response to the 9/11 attacks, Congress passed the USA PATRIOT Act, which amended FISA to allow surveillance orders when obtaining foreign intelligence is 'a significant purpose' of the investigation, rather than 'the purpose.'
- Following the Patriot Act's passage, the Attorney General issued new 'Intelligence Sharing Procedures' in 2002 designed to permit the complete exchange of information and advice between intelligence and law enforcement officials, eliminating a previously perceived 'wall' between them.
Procedural Posture:
- The United States submitted an application to the Foreign Intelligence Surveillance Court (FISC), a court of first instance, for an order authorizing electronic surveillance of a target.
- The government's application proposed using its 2002 'Intelligence Sharing Procedures' that permitted broad coordination between intelligence and law enforcement officials.
- The FISC issued an order granting the surveillance but, relying on its interpretation of FISA, modified the government's proposed procedures to restrict coordination between law enforcement and intelligence officials.
- The FISC's modifications prohibited law enforcement officials from directing or controlling the FISA surveillance and required a 'chaperone' at coordination meetings to maintain a 'wall' between the two functions.
- The United States, as the appellant, appealed the FISC's order imposing these modifications to the United States Foreign Intelligence Surveillance Court of Review.
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Issue:
Does the Foreign Intelligence Surveillance Act (FISA), as amended by the USA PATRIOT Act, permit the Foreign Intelligence Surveillance Court (FISC) to impose restrictions on a surveillance order that limit coordination between intelligence and law enforcement officials for the purpose of ensuring the primary purpose of the surveillance is not criminal prosecution?
Opinions:
Majority - Per Curiam
No. FISA, as amended, does not authorize the FISC to impose such restrictions, as the Patriot Act's 'significant purpose' amendment was specifically designed to eliminate the 'primary purpose' test and break down the 'wall' between intelligence gathering and law enforcement. The restrictions imposed by the FISC were based on a misinterpretation of FISA's minimization requirements and exceeded the court's statutory and constitutional authority. The court's analysis rested on several key points. First, the original 1978 FISA never explicitly contained a 'primary purpose' test; the court found this was a flawed interpretation adopted by some courts and the Justice Department itself, since FISA's definitions of 'foreign intelligence information' and 'agent of a foreign power' are inherently intertwined with criminal activity. Second, the Patriot Act's amendment changing 'the purpose' to 'a significant purpose' was a clear congressional rejection of the primary purpose test, allowing FISA to be used even when criminal prosecution is a primary objective. Third, the restrictions imposed by the FISC were not proper 'minimization procedures,' which are meant to limit the collection and sharing of non-foreign intelligence information concerning U.S. persons, not to dictate the internal structure and coordination of Executive Branch investigations. Finally, the court concluded that FISA, as amended, is constitutional under the Fourth Amendment, reasoning that protecting the nation from foreign threats constitutes a 'special need' beyond ordinary law enforcement, justifying the integrated approach to surveillance.
Analysis:
This landmark decision officially dismantled the 'wall' between intelligence and law enforcement operations in national security investigations. By validating the Patriot Act's 'significant purpose' test, the court granted the Executive Branch far greater flexibility to use the powerful tools of FISA for investigations that have dual intelligence and criminal prosecution goals. The ruling shifted the legal paradigm from a focus on the government's primary motive to whether a genuine national security purpose exists, significantly altering the balance between government surveillance powers and individual privacy. This case set a crucial precedent for how FISA warrants are reviewed and approved, paving the way for more integrated counterterrorism strategies that blend intelligence gathering with criminal prosecution from the outset.
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