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FISA and the PATRIOT Act: a Look Back and a Look Forward

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FISA and the PATRIOT Act: a Look Back and a Look Forward +(,121/,1( Citation: 35 Ann. Rev. Crim. Proc. iii 2006 Content downloaded/printed from HeinOnline (http://heinonline.org) Thu Dec 10 11:51:11 2015 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. 35 GEo. L.J. ANN. REv. CRIM. PR.oc. (2006) iii FISA and the PATRIOT Act: A Look Back and a Look Forward Viet D. Dinh * Wendy J. Keefer** TABLE OF CONTENTS INTRODUCTION ..................................................................................................... .iv THE HISTORY OF THE INTERPLAY BETWEEN ORDINARY CRIMINAL INvESTIGATIONS AND FOREIGN INTELLIGENCE SURVEILLANCE: PuTTING THE AcT IN PERSPECTIVE .................. .iv THE USA PATRIOT AcT: THE FISA AMENDMENTS .............................................. xiii I. Reevaluating The Wall ............................................................................ xiv A. Section 218 (Scope ofFISA) ............................................................... xv B. Section 504 (Permissible Information Sharing) ..................................... xv C. Section 203 (Defining Foreign Intelligence Information) ...................... xvi D. Section 905 (Mandated Information Sharing) ...................................... xvi II. Gathering Information in the Information Age .......................................... xvii III. Extending Accepted Law Enforcement Tools to Investigations of Terrorism .............................................................................................. xviii A. Section 215 (Business Records) .......................................................... xix B. Section 505 (National Security Letters) ................................................ xx THE INTERVENING YEARS: THE IMPACT OF THE USA PATRIOT AcT ........................ xxi I. The Department of Justice Reports ........................................................... xxi * Professor of Law, Georgetown University Law Center; A.B., J.D., Harvard University. ** Attorney at Bancroft Associates PLLC; former Chief of Staff to Assistant Attorney General for Legal Policy, United States Department of Justice. B.A. University of North Carolina (Greensboro), J.D., Campbell University Norman Adrian Wiggins School of Law. Many thanks to Lizette Benedi, Saritha Komatireddy, and Jaclyn Kessler for their invaluable contributions to this article. iv 35 GEo. L.J. ANN. REv. CRIM. PRoc. (2006) II. Legal Challenges .................................................................................. xxvii REAUTHORIZATION ............................................................................................ xxix INTRODUCTION When the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act ("USA PATRIOT Act," "PATRIOT Act," or "the Act") 1 was passed in the wake of the terrorist attacks of September 11th, it was done with the knowledge that much debate would likely arise from some of the changes the Act brought forth. With that in mind, Congress set certain more controver­ sial provisions to sunset at the end of 2005, at which time Congress would be able to use the experience of the intervening four years to devise what changes might be necessary. 2 As the reauthorization process that has occurred over the past few months draws to a close, the opportunity presents itself for practitioners to take a closer look at the history, context, and details behind the debate that the process has evoked. This article provides a historical overview of development of the law prior to the Act, particularly as it relates to government surveillance, and discusses key examples of both the legal changes the Act effectuated in connection with foreign intelligence surveillance and the problems these changes were intended to address.3 In addition, this article provides some important examples of the results the Act has produced in the four years since its passage. Finally, the article discusses the reauthorization of the Act's sunsetted provisions. THE HISTORY OF THE INTERPLAY BETWEEN ORDINARY CRIMINAL INVESTIGATIONS AND FOREIGN INTELLIGENCE SURVEILLANCE: PUTTING THE ACT IN PERSPECTIVE One of the focuses-indeed, possibly the primary focus--of the PATRIOT Act was to effect key changes in the law of government surveillance. Thus, many of the most notable provisions of the Act were amendments to the Foreign Intelligence Surveil­ lance Act ("FISA"),4 Title ill of the Omnibus Crime Control and Safe Streets Act ("Title ll"),5 or the Electronic Communications Privacy Act ("ECPA"t; this article focuses on the Act's amendments to FISA. To understand how the PATRIOT Act 1. Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001) (codified as amended in scattered sections of 18 U.S.C., 47 U.S.C., 50 U.S.C.) [hereinafter PATRIOT Act]. 2. Section 224 of the Act provided for the expiration of sixteen of its provisions on December 31, 2005, requiring Congress to reauthorize those provisions in either their original or amended form by that date to avoid their expiration. See id. On December 30, 2005, the sunset date was amended, extending these provisions in their original form until February 3, 2006. See Pub. L. No. 109-160, 199 Stat. 2957 (2005). An additional amendment was made to the sunset date, extending it until March 10, 2006. See H.R. 4659, Pub. L. 109-170, 109th Cong. (2006). 3. This article cannot even scratch the surface of all the provisions of the Act or the implementing rules, regulations, or policies; nor does it address other counterterrorism measures and policies, including the status of enemy combatants, use of material witness warrants, or Administration policies regarding responding to Freedom of Information Act requests concerning counterterrorism activities. Instead, the focus remains on key amendments effectuated by the Act to the Foreign Intelligence Surveillance Act ("FISA"). 4. Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95-511,92 Stat. 1783 (1978) (codified as amended in scattered sections of 18 U.S.C.). 5. Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, 82 Stat. 197 (1968) (Title III codified as amended at 18 U.S.C. §§ 2510-2520 (2000 & Supp. III 2003)). 6. Electronic Communication Privacy Act of 1986, Pub. L. No. 99-508, 100 Stat. 1848 (1986) (codified as amended in scattered sections of 18 U.S.C.). 35 GEo. L.J. ANN. REv. CRIM. PRoc. (2006) v altered the landscape of FISA and foreign intelligence, it is first necessary to review the historical development of national security and foreign intelligence surveillance law, particularly as it relates to electronic surveillance.7 In general terms, FISA provides a framework for the court approval process and subsequent conduction of foreign intelligence surveillance by the Executive Branch.8 But electronic surveillance began before the 1978 enactment of FISA. In 1934, Congress enacted Section 605 of the Federal Communications Act,9 which prohibited the interception and dissemination of the contents of wire and radio communications. Three years later, the Supreme Court interpreted that prohibition to apply to federal agents and consequently deemed evidence obtained through wiretaps inadmissible. 10 Yet despite these developments in the law, foreign intelligence surveillance was perceived differently. For much of the twentieth century it was generally accepted that the Executive Branch had some measure of authority to conduct electronic foreign intelligence surveillance without a warrant. For example, President Roosevelt authorized Attorney General Jackson to use wiretaps to conduct surveillance in limited circumstances related to national security: I have agreed with the broad purpose of the Supreme Court [Nardone] decision relating to wiretapping in investigations. The Court is undoubtedly sound both in regard to the use of evidence secured over tapped wires in the prosecution of citizens in criminal cases; and it is also right in its opinion that under ordinary and normal circumstances wiretapping by Government agents should not be carried on for the excellent reason that it is almost bound to lead to abuse of civil rights. However, I am convinced that the Supreme Court never intended any dictum in the particular case which it decided to apply to grave matters involving the defense of the nation. It is, of course, well known that certain other nations have been engaged in the organization of propaganda of so called "fifth column" in other countries and in preparation for sabotage, as well as in actual sabotage. It is too late to do anything about it after sabotage, assassinations and the "fifth column" activities are completed. You are, therefore, authorized and directed in such cases as you may approve, after investigation of the need in each case, to authorize the necessary investigating agents that they are at liberty to secure information by listening devices directed to the conversation or other communications of persons suspected of subversive activities against the Government of the United States, including suspected spies. You are requested furthermore to limit these investifations so conducted to a minimum and to limit them insofar as possible to aliens. 1 Later, Attorney General Tom Clark advised President Truman that warrantless wire- 7. Current law is cited
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