Court Decisions Before FISA

As discussed in my previous post, the U.S. Supreme Court has never addressed the issue of whether the Fourth Amendment requires a warrant for wiretaps used to collect foreign intelligence. The most nearly related Supreme Court case was the 1972 case of U.S. v. U.S. District Court of Eastern Michigan, generally known at the Keith case. That case addressed warrant requirements for domestic security. In 1968 Congress passed the Ominbus Crime Control and Safe Streets Act, which included a section known as "Title III" that set forth the procedure for obtaining wiretap warrants in ordinary criminal cases. However, Congress stated that these requirements did not apply to foreign intelligence or affect the President's constitutional power to protect the United States government from overthrow or other "clear and present danger." The Supreme Court ruled that, although Title III warrant requirements applied only to ordinary crime and not to domestic groups threatening the U.S. government, the Fourth Amendment nonetheless required a warrant to domestic security wiretaps. It rejected the administration's argument that warrants should be required only for prosecution and warrantless surveillance be allowed for domestic surveillance and intelligence gathering. The Supreme Court did rule that the warrant procedure set forth in Title III was statutory and not constitutional and that Congress could, if it wished, set a different or less stringent procedure for domestic security. It expressly declined to rule on whether warrants were required for foreign intelligence.

Although the Supreme Court declined to rule on whether a warrant was required for foreign intelligence wiretaps, various federal appellate courts ruled that it was not. The Supreme Court, in allowing these opinions to stand, implicitly endorsed them. The most oft-quoted pre-FISA decision on foreign surveillance was in the case of U.S. v. Truong, 629 F.2d 908 (4th Cir. 1980) (link not available). This case was actually decided (in 1980) after FISA came into effect, but it dealt with pre-FISA surveillance. This case involved a Vietnamese spy who was receiving secret documents from an employee of the U.S. government. The U.S. government tapped his telephone without a warrant to determine who was giving him classified documents and later wiretapped and electronically monitored the leaker without a warrant. The court ruled that no warrant was required when the object of surveillance was a foreign power, agent or collaberator. If further held that warrantless surveillance was permitted only so long as the "primary purpose" was intelligence gathering. Once the "primary purpose" shifted to criminal prosecution, a warrant was required. In this case, warrantless surveillance continued for 270 days, but the government began discussing prosecution after 90 days. The court therefore suppressed all evidence acquired after the first 90 days.

The distinction between intelligence gathering and criminal prosecution made more sense during the Cold War than it does today. During the Cold War, foreign intelligence gathering usually meant gathering intelligence on nation states (especially the Soviet Union) that were hostile, but were not considered inherently criminal. Not every Soviet citizen or even government member was considered an outlaw in the way that we consider all Al Qaeda members outlaws. The Soviet Union (and many other other hostile countries) openly kept an embassy in the United States with a team of diplomats who openly represented the Soviet government, something it would be unthinkable for Al Qaeda to do. The United States spied on the Soviet Embassy, seeking to learn valuable information about Soviet intentions, but without therefore criminalizing its staff. It was also no secret that many nominal diplomats, acting under a grant of diplomatic immunity, were actually spies. The United States surveilled diplomats from hostile countries to determine which ones were spies but, because they had diplomatic immunity, it could not prosecute them, but only expell them. (Of course, any U.S. citizen providing classified information to the Soviet embassy was a criminal and would be prosecuted). Today, on the other hand, we consider Al Qaeda membership to be criminal per se, no Al Qaeda members openly operate in the United States, and any Al Qaeda member caught in the United States is subject to prosecution. Thus following the Truong decision, it woudl seem to follow that even if the President may constitutionally wiretap Al Qaeda members without a warrant, he would need a warrant to use such wiretaps to prosecute, which is presumably the whole purpose.

To continue, the court also held that although the Fourth Amendment did not require a warrant for searches and seizures in foreign intelligence, it did require such searches to be "reasonable." The argument it addressed was whether the degree of surveillance was "reasonable," but it would logically seem to follow that conducting the surveillance would need to be reasonable in the first place. In this case, for instance, the government learned of the spying activities when an accomplice, who was actually a double agent, informed the U.S. government and showed them the secret documents being passed along. Clearly it was "reasonable" to undertake the wiretap in the firstplace. By a "reasonableness" standard today, surely it would be "reasonable" to wiretap someone whose name was found in an Al Qaeda member's database -- but not "reasonable" to data mine or engage in a fishing expedition.

Finally, and most significantly, the court addressed why a warrant is not required for foreign intelligence.

Few, if any district courts would be truly competent to judge the importance of particular information to the security of the United States or the "probable cause" to demonstrate that the government in fact needs to recover the information from one particular source. Perhaps most crucially, the exective branch not only has superior expertise in the area of foreign policy, it is also designated as the pre-eminent authority in foreign affairs. . . . Just as the separations of powers in Keith forced the executive to recognize a judicial role when the President conducts domestic security surveillance . . . so the separation of powers requires us to acknowledge the principal responsiblity of the Presidenct for foreign affairs and conduct of foreign intelligence surveillance.

This would, indeed, appear to imply that FISA is an unconstitutional infringement on executive power. Yet the court also addresses FISA, which came into effect after the surveillance in this case, in a footnote that appears to imply the opposite. The note comments that FISA requires a warrant only for some types of foreign intelligence, and sets a less stringent standard than a criminal warrant. Since seven judges will regularly hear FISA cases, they may acquire the necessary "expertise" to make such decisions. The footnote then says:

While the Act suggests that it is possible for the executive branch to conduct at least some types of foreign intelligence while being subject to a warrant requirement, the complexity of the statute also suggests that the imposition of a warrant requirement, beyond the constitutional minimum described in this opinion, should be left to the intricate balance of the legislative process by Congress and the President. The elaborate structure of the statute demonstrates that the political branches need great flexibility to reach the compromises and formulate the standards which will govern foreign intelligence surveillance. Thus, the Act teaches that it would be unwise for the judiciary, inexpert in foreign intelligence, to attempt to enunciate an equally elaborate structure for core foreign intelligence surveillance under the guise of a constitutional decision.

In simple English, there is no constitutional requirement of a warrant in foreign surveillance, and the judiciary has no business imposing one. This does not (necessarily) preclude Congress from imposing a statutory requirement.

My next post will address various court decisions made after FISA was enacted.