119 Pages Posted: 3 Nov 2004
Some blame the United States' failure to prevent the 9/11 terrorist attacks on a "wall" between foreign intelligence and criminal law enforcement activities. That wall is commonly believed to have had a statutory basis that was eliminated by USA PATRIOT Act provisions amending the Foreign Intelligence Surveillance Act of 1978 (FISA). According to a recent decision by the Foreign Intelligence Surveillance Court of Review, however, the Patriot Act actually created, for the first time, a statutory foundation for the wall that did not exist before. Under the Court of Review's admittedly "paradoxical" interpretation, the Patriot Act does not raze - rather, it raises - a wall between foreign intelligence and criminal law enforcement. Specifically, the Court of Review interpreted the Patriot Act to prohibit the government from seeking judicial orders under the FISA authorizing electronic surveillance (1) if the government's sole purpose is to use the FISA-acquired information for criminal prosecution, even the prosecution of "foreign intelligence crimes"; or (2) if the government's primary (or sole) purpose is to use the FISA-acquired information to prosecute "ordinary crime" that, when committed, is "wholly unrelated" to foreign intelligence crimes.
This article explores the statutory foundation of "the wall" and concludes that the Court of Review's decision is wrong, but so is all of the other significant case law on the statutory foundation of the wall. The Court of Review was wrong in construing the original (pre-Patriot Act) FISA to put no restriction on the government's prosecutorial use of FISA-acquired foreign intelligence information. On the other hand, other federal courts of appeals have also been wrong in construing the original FISA to impose a "primary purpose" test that severely restricts prosecutorial use of FISA-acquired foreign intelligence information. Properly interpreted, the original FISA required the government to use information obtained through FISA surveillance for one or more of five foreign intelligence purposes identified in the FISA's definition of "foreign intelligence information." Thus, the government could use FISA surveillance to get evidence for a criminal prosecution, as long as the government intended the anticipated prosecution to serve a statutorily specified foreign intelligence purpose. This was true even if the intended prosecution involved "ordinary crime," rather than what the Court of Review called "foreign intelligence crimes." The government could not use FISA surveillance, however, to pursue prosecution as an end in itself. The Patriot Act does not change this analysis. Instead, the Patriot Act clarifies the existence of judicial authority to review the government's intended use of information to be acquired through FISA surveillance. At the same time, the Act relaxes the standard of review that was applied under precedent imposing the "primary purpose" test.
In short, "the wall" never had a statutory basis, and it still lacks one. In addition to demonstrating this by analysis of the relevant statutes, this article proposes clarifying legislation for Congress to consider when it debates reauthorization of the Patriot Act.
Keywords: foreign intelligence, electronic surveillance, FBI, Fourth Amendment, Patriot Act
JEL Classification: K14, K42
Suggested Citation: Suggested Citation
Seamon, Richard Henry and Gardner, William Dylan, Does (Should) the Patriot Act Raze (or Raise) 'the Wall' between Foreign Intelligence and Criminal Law Enforcement?. Harvard Journal of Law and Public Policy, Forthcoming. Available at SSRN: https://ssrn.com/abstract=612781