The System of Foreign Intelligence Surveillance Law
Ohio State Public Law Working Paper No. 18
69 Pages Posted: 6 Sep 2004 Last revised: 26 May 2017
Date Written: 2004
In 2003, for the first time, more wiretap orders were issued in the United States under the Foreign Intelligence Surveillance Act of 1978 (FISA) than for all law enforcement actions. This Article provides a thorough analysis of the history and theory of the U.S. system of foreign intelligence surveillance law, and provides proposals for reform.
Part I of the Article explains the history of national security surveillance up until passage of FISA in 1978, including discussion of the surveillance abuses revealed by the Church Committee and other Watergate-era revelations. Part II explains the new legal procedures created by the 1978 law. The procedures reflect a constitutional compromise between claims of executive discretion and civil libertarian arguments for prior judicial involvement. Part III discusses the evolution of the law from 1978 until passage of the USA-PATRIOT Act in 2001.
Part IV explains the legal changes triggered by the attacks of September 11, 2001. These include: major changes to foreign intelligence surveillance law in the USA-PATRIOT Act; shifts in Attorney General surveillance guidelines; and the first publicly-released decisions by the secret courts created by FISA. Part V discusses the theoretical underpinnings of the current legal regime for foreign intelligence surveillance, including an analysis of the extent to which "everything has changed" since the September 11 attacks.
Part VI presents proposals for reform. First, the Article proposes limits on the recently expanded powers to use FISA for records and other tangible objects. In particular, the Article sets forth a new argument for how other legal approaches can replace the "gag rule" that criminalizes disclosure when a FISA order has been served. Second, the Article proposes an alternative approach to the issue of whether there should be a "wall" between law enforcement and foreign intelligence activities. The approach here focuses specifically on the foreign intelligence value of proposed surveillance, rather than inquiring whether an order is sought initially for law enforcement or foreign intelligence purposes. Third, the Article suggests a number of ways to improve the procedures of the foreign intelligence surveillance court system. Fourth, the Article proposes possible new oversight mechanisms that can compensate in part for the necessarily classified nature of these surveillance activities.
The law and practice in this area has changed greatly since 2001. Important aspects of the USA-PATRIOT Act are scheduled to sunset at the end of 2005. This Article seeks to create a more informed basis for considering how to achieve national security goals in this area consistent with the rule of law.
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