By Paul Rosenzweig, Ph.D., The George Washington University Law School
In October 1978, President Jimmy Carter signed into law the FISA legislation that established a new framework for American policy, mandating a strict separation of the CIA and the FBI; or, more broadly, between criminal law and espionage. It was to make sure that criminal investigations weren’t aided by foreign intelligence surveillance data. Was it a correct move?
Why Did This Barrier Exist?
This barrier was erected at a particular moment in time when terrorist threats seemed to be receding, and government threats to civil liberties seemed to be increasing.
The wall stems from an era when legal, social, and bureaucratic restraints on communications between the intelligence sector and law enforcement were thought to be an important limit on governmental intrusion.
The FISA legislation strengthened the barrier between intelligence and law enforcement communications to abate such errors and excesses.
So, the first question we might ask is: Why did the wall matter at all? Or, why was there value in separating law enforcement methods from intelligence activities?
This is a transcript from the video series The Surveillance State: Big Data, Freedom, and You. Watch it now, on Wondrium.
The Different Procedures & Forms of Inquiry
There’s a clear distinction between criminal investigations, typically conducted under Title III of the Omnibus Crime Control and Safe Streets Act of 1968—known as Title III investigations—and national security investigations, conducted under FISA.
So, while Title III and FISA alike require government officials to obtain ex ante permission from judicial officers for electronic surveillance, courts under Title III—that is, criminal law enforcement—impose a far stricter standard of review before granting authorization.
Furthermore, after the surveillance is complete, aggrieved parties under Title III, who claim that the government has made an error, have substantial rights to challenge the government’s conduct. Those rights are virtually nonexistent in the FISA regime.
Under Title III, the fruits of electronic surveillance can be used in a prosecution only if the defendant is first given copies of the government’s application and the court order approving the surveillance. FISA applications, on the other hand, are generally not disclosed unless ordered by the court.
As a practical matter, defendants in criminal actions rarely have access to FISA applications. Even evidence relating to defendants under investigation for simple domestic crimes may sometimes be discovered as a collateral part of an intelligence investigation.
Learn more about the privacy debate.
The Fourth Amendment
An earlier Supreme Court decision in the Keith Case—which pitted security concerns against civil liberties during the Nixon administration—found that domestic surveillance, whether for criminal or national security reasons, had to fully satisfy the warrant requirements of the Fourth Amendment.
The Fourth Amendment, of course, prohibits unreasonable searches and seizures, and requires any warrant to be judicially sanctioned and supported by probable cause.
But implicit in this requirement for domestic surveillance is the idea that surveillance of a foreign national for national security purposes might be subject to a less-stringent reasonableness standard.
Courts around the country soon agreed, holding that surveillance for foreign intelligence purposes needed to be reasonable, but might not require a warrant.
How to Distinguish Between Foreign Intelligence and Domestic Criminal Activity?
How do you make such a distinction between domestic criminal and foreign intelligence activity? Information, after all, doesn’t come with a sign on it that says “Use me only for foreign intelligence purposes.” And once you collect the information, it becomes hard to deliberately forget it.
Therefore, the courts have developed something that has come to be known as the primary purpose test. It started with the Vietnam War-era espionage case titled United States v. Truong Dinh Hung.
Learn more about the First Amendment.
The Primary Purpose of the Investigation Was Deemed Important
When FISA was enacted, Congress tried to preserve this distinction by stating that the more relaxed FISA procedures, for which a criminal warrant was not required, applied only when the purpose was to collect foreign intelligence. Note, by the way, that the law does not say the primary purpose, but that has generally been read into the language.
So now the lawfulness of surveillance would be determined by the intent, or purpose, of the investigation. If it were for foreign intelligence, then FISA procedures applied; if for anything else, the government had to apply the more stringent Title III rules.
How do you measure intent, though? Since we can’t read people’s minds, we judge intent by their actions. Some Justice Department officials used the same logic to prohibit consultations and coordination among law enforcement, intelligence agents and prosecutors.
They were afraid that federal courts might look at coordination between law enforcement and the intelligence community, and think that they were impermissibly using the relaxed FISA rules to collect evidence for a criminal case. So they decided that we needed rules limiting consultation—sort of a preemptive strike against being accused of an improper purpose.
In July 1995, President Bill Clinton’s Attorney General, Janet Reno, approved coordination procedures that applied in most cases. On their face, these procedures were stringent; they were meant to limit, but not prohibit, the coordination of intelligence and law enforcement activity. In practice they seem to have been interpreted—some say misinterpreted—as a straitjacket.
As Scott Glick, the prominent national security lawyer, rightly summarizes, “The foundations of the FISA wall lie in the primary purpose test. DOJ acted as a barrier so that it could tell the courts that a wall existed.”
Common Questions about the Barrier Between Criminal Law and Espionage
The FISA legislation was put in place to separate criminal law and espionage so evidence was not used against criminals when it was collected improperly.
The “wall” was used as a way to make sure espionage intelligence was only used for those purposes so law enforcement couldn’t use that information in court.
There was always the chance of federal courts thinking that evidence on criminal cases was collected illegally because law enforcement and the espionage agencies were using the more relaxed FISA rules to communicate with each other. So, the Justice Department decided to limit the rules before they were used improperly.