FISA’s Significant Purpose Requirement and the Government’s Ability to Protect National Security
Harvard National Security Journal, Vol 1, p. 87, May 2010
57 Pages Posted: 26 Oct 2011
Date Written: May 30, 2010
In 2006, Congress enacted two potentially significant restrictions on the government’s ability to collect foreign intelligence information pursuant to FISA. Against the backdrop of a Foreign Intelligence Surveillance Court of Review (Court of Review) decision that arguably reached an erroneous conclusion about the meaning and scope of FISA’s significant purpose requirement, Congress let stand two restrictions that the Court of Review had placed on the government’s use of FISA. First, the Court of Review held that if the government’s primary purpose was to prosecute, then the government could use FISA only if it intended to prosecute an alleged terrorist or spy for what the court called a “foreign intelligence crime.” The Court of Review also held that the government could not use FISA, even when it intended to prosecute for a foreign intelligence crime, if that crime occurred in the “past.” This Article examines the Court of Review’s decision and argues that the court reached an erroneous conclusion in regard to the scope of the government’s power. The Article also takes a comprehensive and fresh look at the legislative history of FISA’s purpose requirement, both before and after the Court of Review’s decision. The Article demonstrates that Congress was keenly aware of the restrictions placed on the government by the Court of Review, and rather than explicitly expressing its will in a Final Conference Report with respect to that decision, it simply voted to repeal the amendment’s sunset provision. The Article concludes by proposing legislation that would remove both of the restrictions placed on the government by the Court of Review.
Keywords: FISA, Significant Purpose, Prosecution, Foreign Intelligence Crime, FISA Court of Review, National Security
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