U.S. Court Gives Justice Department
More Power to Wiretap Citizens |
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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intelligence gathering was faulted as outdated and dangerous.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
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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).
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| OTHER RESOURCES
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Written
December 12, 2002; Last updated December 19, 2002. |
