The court correctly pointed out that foreign intelligence gathering was the raison d’etre of the § 1801(e) legislation that authorizes the existence of FISA. The legislation specifically manadtes procedures to ensure the privacy rights of Americans are protected (see § 1801(h) and § 1821(4)).
Moreover, Congress expressly vested in the FISA court the discretion to approve or disapprove changes in procedures (§1805(a)(4)). The rationale for this approach is consistent with the spirit of search and seizure law: while the applications for warrants are not open to public scruntiny, they at least have the benefit of analysis of a neutral, detached magistrate. In other words, Congress’ clear intent was to remove from the executive complete and unbridled discretion to effectuate searches, while maintaining the secrecy that is necessary for successful foreign intelligence operations.
The broad mandate granted by the above procedures was acceptable because, again, they applied to foreign intelligence gathering efforts. Because search techniques such as those above often also uncover evidence of a crime, the court had previously approved a procedure to “wall off” the information. Information gained could be used by counter-intelligence operatives, but could not be shared with federal prosecutors. The Constitution’s safeguards against unreasonable searches, such as the exclusionary rule, protect against criminal liability for those implicated by unreasonable government searches.
By creating such a wall, Congress and the FISA court ensured that criminal liability did not ordinarily attach unless independent, legally obtained evidence was gathered. And because the FISA court operated with classified information, the ability of persons whose property was searched to fail motions to quash warrants was effectively non-existent; indeed, persons monitored would often never know they were the targets of investigation. As a method for gathering intelligence, this is highly desirable; as a method of administering criminal justice, it was contrary to traditional Constitutional protections. The FISA “wall” protected aginst the possibility that the government would seek to use intelligence surveillance as a sub rosa method of conducting a criminal investigation, unhindered by criminal probable cause standards.
Against this historical backdrop, we now turn to recent events. The Justice Department requested the FISA court’s approval of revised procedures. The summary effect of the requested changes was that the FISA-type surveillance procedures, with their lower standard of proof, could be used for criminal investigations, as long as a substantial intelligence aspect of the case existed as well.
In denying this request, the FISA court pointed out that the “wall” had been breached many times in the past. The FBI had, in over 75 cases, passed information to criminal investigators and prosecutors that it had gained through intelligence surveillance. Dspite the Court’s efforts to uncover how and why these breaches occurred, the malefactors remain unidentified and unremonstrated after more than a year.
The Government, said the court, essentially seeks to legalize its prior, and future, bad faith treatment of FISA-type surveillance information. Given Congress’ clear expressed intention to authorize strategically necessary wiretaps while still protecting Americans against criminal liability from such searches, the court was correct to continue to enforce a “wall” limitation of FISA-derived information.
He beat Rush Limbaugh’s opening monologue this morning by 2 hours, and made the same remarks as Rush about the Times misleading headline a full 30-40 minutes before Mr. Limbaugh opened up on it. Clearly december shares with the famous radio host the ability to scan through the news of the day, disseminate the hot-button issue, and provide quick analysis. That december’s position foreshadowed that to come on Rush, I think he has a future in talk radio ahead of him 