COURT FINDS NO WALL BETWEEN INTELLIGENCE AND CRIMINAL PROBES

Sitting as U.S. Foreign Intelligence Surveillance Court of Review, 3 judges drawn from D.C., 6th and 9th U.S. Appeals Courts ruled that under FISA, as amended by Patriot Act, restrictions imposed by lower court on govt. weren’t required either by FISA or Constitution. Decision infuriated civil libertarians.

Specifically, lower court had ordered that: (1) Law enforcement officials not make recommendations to intelligence officers about initiation, operation, continuation or expansion of FISA searches or surveillance. (2) FBI and Justice Dept.’s (DoJ) Criminal Div. ensure that law enforcement officials not direct or control use of FISA procedures to enhance criminal prosecutions. (3) Advice intended to preserve option of criminal prosecution not inadvertently result in DoJ’s directing or controlling investigation using FISA searches and surveillance for law enforcement purposes. Lower court also ordered that members of DoJ’s Office of Intelligence Policy & Review sit in on all meetings between FBI and Criminal Div. on coordinating efforts in foreign surveillance matters.

Govt. challenged those conditions, contending that: (1) Supposed pre-Patriot Act limitation in FISA that barred govt. from using foreign intelligence information in criminal investigations was “an illusion.” (2) Even if so-called “primary purpose” test -- that FISA could be used only if govt.’s primary purpose in pursuing foreign intelligence wasn’t criminal prosecution -- was valid before enactment of Patriot Act, that legislation eliminated it. (3) Primary purpose test wasn’t required by Fourth Amendment. Civil liberties and lawyer groups, including the American Civil Liberties Union (ACLU), Center for Democracy & Technology, Center for National Security Studies, Electronic Privacy Information Center, Electronic Frontier Foundation (EFF) and National Assn. of Criminal Defense Lawyers -- countered that statutes were unconstitutional unless they were construed as prohibiting govt. from obtaining approval of surveillance applications if its primary purpose was in criminal prosecution.

Review court sided with govt., saying that, as passed in 1978, FISA “clearly” didn’t limit govt.’s use of foreign intelligence information in criminal prosecutions. However, it said: “The passage of the Patriot Act altered and to some degree muddied the landscape.” Although it expressly permitted consultation and coordination between intelligence and law enforcement officers, FISA court mistakenly began imposing procedures set by Attorney Gen. to deal with primary purpose standard generically as minimization procedures (to protect as much as reasonable against picking up and using nonpublic information that was not foreign intelligence information), review panel said. FISA court also refused to consider legal significance of Patriot Act’s amendment changing “the primary purpose” to “a significant purpose” of surveillance, review court said -- wording Congress clearly intended to break down barrier between intelligence and law enforcement activities.

Whether Congress’s jettisoning of primary purpose test violates Fourth Amendment is trickier issue, panel said. Ultimately, it said, it boiled down to whether FISA, as amended by Patriot Act, reasonably balanced govt.’s legitimate needs for foreign intelligence information to protect against national security threats against protected rights of citizens. While threat to society isn’t dispositive in determining whether search and seizure is reasonable, “it certainly remains a crucial factor,” court said. However, it said, govt. showings and procedures required under FISA, “if they do not meet the minimum Fourth Amendment warrant standards, certainly come close,” making FISA, as amended. constitutional. Review court reversed FISA court’s conditions on grant of govt.’s surveillance applications and ordered lower court to grant applications as submitted.

Calling decision “despicable,” Rep. Conyers (Mich.), ranking Democrat on House Judiciary Committee, blasted “the Administration’s’s race down the slippery slope of eroding constitutional safeguards.” Not only was decision terrible, he said, but it was “decided in secret behind closed doors. What the public does not know is that the court heard only a one-sided argument by [DoJ] and the FBI, which have repeatedly lied and misinformed the lower FISA court when seeking authorizations for secret wiretaps and physical searches.” DoJ may have “won this round,” Conyers said, “but it cannot use these small victories to block a much-needed overhaul of the FBI.”

“It’s a very bleak decision” for civil liberties and the Fourth Amendment, said Lee Tien, EFF senior staff attorney. Review court essentially reversed FISA court, he said, and “laid waste” to most existing law “we thought we knew” about FISA. “As of today, the Attorney General can suspend the ordinary requirements of the Fourth Amendment in order to listen in on phone calls, read e-mails and conduct secret searches of Americans’ homes and offices,” said Ann Beeson, ACLU litigation dir.-technology & liberty program. Civil liberties groups are looking into how to bring decision to attention of the U.S. Supreme Court, Tien said.