Electronic Surveillance of Terrorism: The Intelligence/Law Enforcement Dilemma - A History
43 Pages Posted: 27 Feb 2008 Last revised: 27 Feb 2014
The Foreign Intelligence Surveillance Act (FISA) has been much in the news. Because the requirements for a judicial warrant under FISA do not require the traditional showings for electronic surveillance for law enforcement purposes, one of the issues relating to EISA is the extent to which surveillance under that Act may be undertaken for the purposes of criminal law enforcement, rather than for obtaining foreign counterintelligence or counterterrorism information. This issue became particularly salient after 9/11 when at the administration's urging Congress passed an amendment to KISA in the USA PATRIOT Act that eliminated the previous requirement that "the purpose" of the surveillance was to obtain foreign intelligence information and replaced it with the requirement that "a significant purpose" be to obtain such information.
This Article traces the history of EISA's adoption and subsequent practice to show that the original intent of EISA, recognized by the government and confirmed by the courts, was that the primary purpose for the surveillance had to be the gathering of foreign intelligence, including intelligence concerning international terrorism, rather than obtaining evidence for use in criminal trials. The Article then describes how EISA was later misconstrued by employees in the Justice Department, and later by the Foreign Intelligence Surveillance Court, to erect a so-called wall between intelligence and law enforcement officers that was not only not required by EISA but contrary to its purpose and history. Some have attributed much of the blame for the 9/11 intelligence failure to the existence of this "wall," creating a perceived need to amend EISA to eliminate the wall through the amendment of the "purpose" requirement in the USA PATRIOT Act. This Article demonstrates how that amendment was unnecessary and suggests that the amendment raises other constitutional issues with respect to FISA.
Keywords: electronic surveillance, Fourth Amendment, terrorism, intelligence, spying, foreign intelligence, national security
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