When the FBI Comes Calling…®
Domestic Intelligence Operations (FISA)
The President of the United States has the principal responsibility of executing the laws passed by Congress. But in his aggregate authority at Commander-in-Chief and Chief Executive, he also has the authority to repel attacks and, at least in some capacity, "provide for the common defense." Deeply rooted in this authority to ensure security for the nation is the responsibility to conduct intelligence operations related to threats posed by foreign nations and terrorist organizations. Recognizing this authority and realizing the equally important responsibility of prohibiting the Executive's actions from becoming detrimental to the integrity of any citizen's freedom from undue search and seizure and arbitrary arrest, Congress created the Foreign Intelligence Surveillance Act (FISA).
In the Executive's normal role of executing the laws passed by Congress, criminal law enforcement agents are bound by Title III of the 1968 Omnibus Crime Control and Safe Streets Act, which requires a federal magistrate judge to find probable cause that an individual has committed, is committing, or is about to commit a crime in order to be surveilled in ways otherwise deemed violations of privacy. But Congress felt that requiring the Executive to obtain a Title III warrant prior to any intelligence gathering operation would unduly frustrate his aggregate responsibility of providing for the national security. FISA established a Foreign Intelligence Surveillance Court (FISC), a secret court comprised of federal judges who hear surveillance applications for domestic purposes by the Executive's intelligence gathering agents, by way of the Department of Justice, and determine whether a search or seizure may be conducted.
The differences in this process from the Title III warrant procedure are the standards used to determine when a search or seizure is permissible. In order for a FISC judge to approve a FISA application, the judge must find that:
1. The person who will be surveilled is probably (probable cause) an agent of a
foreign power or member of a terrorist organization
2. The place to be surveilled probably (probable cause) will be used by the target
3. The surveillance has the authorization of the President or Attorney General
4. The surveillance has the "substantial purpose" of foreign intelligence gathering
A United States citizen can be surveilled under FISA, if it can be shown that they are acting on behalf of a foreign government or belong to a terrorist organization.
One of the significant dangers in FISA comes in the "substantial purpose" predicate. Originally enacted as "primary purpose," the USA PATRIOT Act lowered the standard. This, for all practical purposes, allows the government to evade the 4th Amendment privacy protections which both FISA and Title III were intended to establish, by claiming that a particular surveillance was for intelligence purposes when in fact it was for a criminal investigation. And further still, it seems rather likely that the government might attempt to evade those standards, given its history of lying to FISC which was brought to the public's attention when the Court delivered its first public opinion in its history.
All searches conducted under FISA must meet the same standards of reasonableness to which Title III searches are held. Likewise, no search may be necessary if there exists no reasonable expectation of privacy on behalf of the target.
For more information regarding some of the specific forms of surveillance, see topics below: