November 2001 

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On September 11, 2001, terrorists who had lived and trained within the United States executed a precise plan of attack, committing the most horrendous act of terrorism in American history. These events have caused the United States law enforcement agencies, the intelligence community, and all Americans to reevaluate our personal safety and our internal security. As part of this process, a method of collecting intelligence information that was known to relatively few prior to September 11, 2001 has risen to the forefront in the ongoing fight against terrorism. This article will examine both the history of the Foreign Intelligence Surveillance Act, better known as FISA, and its application to terrorist-related investigations.

FISA recently made headlines as a result of the investigation of Zacarias Moussaoui in Minneapolis, Minnesota. Moussaoui attempted to take flight lessons in Minnesota. Suspicion was raised when he appeared interested in learning only to control the plane in flight and not wanting to be troubled with the mundane responsibilities of takeoffs and landings. Upon learning of Moussaoui's desires, FBI agents were justifiably alarmed. After Moussaoui was arrested on immigration violations on August 17, 2001, the FBI sought permission under FISA to search his personal computer. Washington FBI officials believed that there was insufficient evidence that Moussaoui was an agent of a foreign terrorist group and refused to process the FISA warrant application, even though French intelligence reports showed his association with an Algerian terrorist group.

Prior to the enactment of FISA, federal courts had recognized the president's inherent authority to authorize warrantless electronic surveillance for the purpose of gathering foreign intelligence.1 Congress enacted FISA to create a "secure framework by which the Executive Branch may conduct legitimate electronic surveillance for foreign intelligence purposes within the context of this Nation's commitment to privacy and individual rights."2 Prior to 1994, physical searches for intelligence information were performed without review by the courts. Concerned that the 1993 warrantless physical search of the home of convicted spy Aldrich Ames might be challenged had Ames not pled guilty, Congress amended FISA to permit physical searches.

To obtain a FISA warrant, a federal officer must submit an application. Required information includes the identity of the target of the surveillance and a statement of facts indicating that the surveillance target is a foreign power or its agent using the facilities to be monitored.3 Currently, FISA authorizes electronic surveillance of only a specifically identified facility, such as a telephone or facsimile machine.4 Proposed amendments pending before Congress seek to expand FISA's reach to authorize monitoring particular individuals, not just specifically identified facilities.

The application must also include a detailed description of the type of information that will be sought, the type of facility that will be monitored, and the "minimization procedures" that will be utilized.5 The minimization procedures are specific guidelines, adopted by the attorney general, that are reasonably designed to limit the government's acquisition and retention of information obtained from nonpublic sources and to prohibit its dissemination.6 Applications are forwarded from the investigator through the federal agency conducting the intelligence investigation. After the responsible federal agency approves a FISA application, it is forwarded to the Office of Intelligence Policy Review (OIPR) at the Department of Justice. OIPR thereafter performs an independent review of the application to determine whether it contains all information mandated by statute.

Upon approval by OIPR, the application is forwarded to the specially created FISAcourt.7 Applications submitted to the FISA court must also contain a certification from a Department of Justice official that the information sought is "foreign intelligence information" and that it cannot be obtained by other means.8 The FISA court independently reviews the application to determine whether there is probable cause to believe that the target is a foreign power or its agent, that the minimization procedures set forth in the application are appropriate, and to ensure that the necessary certification is attached.9 The level of probable cause required for the FISA court to authorize a search is not overwhelming. Black's Law Dictionary has defined probable cause as "having more evidence for than against." In the wake of the September 11th events, it has been widely reported that the FISA court has never denied an application for surveillance. In fact, OIPR has stated that no surveillance or search request has been denied by the FISA court.10 This results from two overriding factors. First, that the probable cause standard is relatively easy to meet, and second, the OIPR review process is vigilant. OIPR determined that their vigilance in the review process would be steadfast, drawing the wrath of many who have felt that OIPR has not been appropriately aggressive in the use of FISA in the past.11

The FISA court consists of seven United States District Court judges drawn from seven different judicial circuits. The Chief Justice of the United States chooses the judges and each serves a seven-year term on the FISA court.12 The FISA court has jurisdiction to consider applications and issue orders approving electronic surveillance or physical searches anywhere in the United States. FISA also delineates procedures whereby the United States may appeal the denial of a warrant or electronic-surveillance application to a specially created review court, consisting of three judges.13 The United States Supreme Court has final authority over further appeals from the FISA Court of Review.14

FISA streamlines the process for the American intelligence community to obtain authorization to gather "foreign intelligence information" from a "foreign power" or its agents. "Foreign intelligence" refers to information that relates to the ability of the United States to protect against attacks from a foreign power or its agents, sabotage or international terrorism or clandestine intelligence activities by a foreign intelligence service.15 A "foreign power or its agent" includes entities controlled and directed by foreign governments, such as their intelligence services, as well as groups "engaged in international terrorism or activities in preparation therefor."16 Although FISA has been commonly associated with gathering classic intelligence information, (e.g., investigating Soviet-bloc intelligence agencies including the KGB), it has also been an effective tool in the fight against terrorist organizations and their individual cells or members.

William Michael served as an Assistant United States Attorney for ten years, working on issues of terrorism and national security. A veteran commander of U.S. Special Forces, he is currently in private practice with Douglas A. Kelley, P.A. in Minneapolis.

"Proposed amendments pending before Congress seek to expand FISA's reach to authorize monitoring particular individuals, not just specifically identified facilities."

The constitutionality of FISA has been judicially sustained, notwithstanding challenges on multiple grounds. Among the unsuccessful challenges were that there must be probable cause to believe that the target has committed a crime, that FISA's provisions violate the 4th Amendment's prohibition against warrantless searches, that FISA is so vague as to deprive targets of due process, and that FISA violates the separation of powers. Despite these contentions, courts have consistently held that both the electronic surveillance and the physical search provisions of FISA pass constitutional muster.

In United States v. Cavanagh, 807 F.2d 787 (9th Cir. 1987), the defendant was indicted for attempting to pass classified information to the Soviets. He challenged the use of FISA wiretaps at trial, contending that FISA's provisions failed to meet the warrant requirements of the 4th Amendment. The court addressed, in cursory fashion, Congress's intent to balance the government's interests in pursuing intelligence activity against the individual's freedom from governmental intrusion and found that "FISA satisfies the constraints the 4th Amendment places on foreign intelligence surveillance conducted by the government."17 In support of its conclusion the Cavanagh court cited United States v. United States District Court, 407 U.S. 297 (1972), wherein the Supreme Court emphasized that the justification for national security surveillance is not necessarily the same as the standard of probable cause which governs general criminal warrants.

In United States v. Pelton, 835 F.2d 1067, 1075 (4th Cir. 1987), cert. denied, 486 U.S. 1010 (1988) the defendant, a former employee of the National Security Agency responsible for communications intelligence and cryptology, was charged with espionage for providing classified information to the Soviets. The court addressed Pelton's argument that the need for foreign intelligence does not justify an exception to the warrant requirement. The court held that FISA has numerous safeguards that provide sufficient protection under the 4th Amendment. The court stated: "[t]he governmental interests in gathering foreign intelligence are of paramount importance to national security, and may differ substantially from those presented in the normal criminal investigation." Even with these differences, the independent judicial review mandated by FISA and the "careful limitations" placed on the exercise of FISA powers prevent unlawful government intrusions on personal civil liberties.

FISA has also been utilized during investigations of terrorist organizations that have led to criminal prosecutions. In a case with Minnesota connections, Sheik Omar Abdel Rahman, the spiritual leader of Egypt's largest militant group, Gama'a al-Islamiyya (Islamic Group), was convicted of terrorist activity and is currently serving a life sentence in the Federal Medical Center, located in Rochester, Minnesota.18 Rahman was convicted, based in part on the use of FISA surveillance, for his role as a supervisor of terrorist operations that planned the destruction of various bridges and tunnels in New York City, as well as the assassination of Egyptian President Hosni Mubarak.. Rahman argued that the planned FISA surveillance was expected to produce results for use in a criminal case and that the surveillance was therefore improper. The court allowed use of the FISA surveillance, stating that the function of court review is to determine that an authorized executive branch official has certified that the application is made to gather foreign intelligence, that the application contains probable cause that the target of the surveillance is an agent of a foreign power, and that the facility is used by the target. A "reviewing court is not to 'second-guess' the certification."19 The court noted that FISA was written with anticipation that targets of the surveillance would violate criminal laws.20 Rahman's challenge was denied.21 Accordingly, the government is not precluded from availing itself of FISA when its use would also produce criminal evidence.22

In United States v. Usama bin Laden, 126 F. Supp.2d. 264 (S.D.N.Y 2000), an American citizen, Wadih El Hage, was charged with conspiring with others, including Usama bin Laden, to bomb the United States embassies in Kenya and Tanzania on August 7, 1998. Truck bombs in Nairobi, Kenya and Dar Salaam, Tanzania killed 224 people. El Hage argued that FISA surveillance and searches violated the 4th Amendment because they were not conducted pursuant to a valid warrant. The 4th Amendment safeguards "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The court addressed for the first time in this case the issue of surveillance and searches conducted against an American citizen abroad. Citing several earlier cases for the proposition that the collection of foreign intelligence within the United States passed constitutional review, the court determined that the use of these techniques abroad was appropriate.23 El Hage was found guilty and, on October 18, Judge Leonard Sand sentenced him to life in prison without parole.

In United States v. Duggan, 743 F.2d 59 (2nd Cir. 1984), a member of the Provisional Irish Republican Army was charged with various offenses involving transporting explosives to Ireland from the United States for use against the British Army. The defendant argued that because the law requires the FISA court to determine what information is necessary to the conduct of the foreign affairs of the United States it ignored the separation of powers. Also, by applying the definition of international terrorism, the FISA court disregarded the separation of powers and entangled the court in a political question. The court summarily dismissed these arguments as without merit.24

FISA can be used only when the primary purpose is to gather foreign intelligence information. The statute requires a certification "that the purpose of the surveillance is to obtain foreign intelligence information."25 (emphasis added). Courts have held that this language requires the primary purpose standard.26 The events of September 11th have spawned proposed amendments that would change FISA so that the gathering of foreign intelligence would have to be only "a significant purpose" of the surveillance.27 This change, if it becomes law, will broaden the authority of intelligence agencies to seek authorization from the FISA court for matters wherein the gathering of foreign intelligence information is not the "primary" purpose of their initiatives.

To avoid claims that the use of FISA is a subterfuge for collecting criminal information, the normal practice involving a FISA warrant is to "wall off" the criminal prosecutor from the intelligence investigation. The intelligence investigation is then supervised by attorneys assigned to the Department of Justice's OIPR.

Although currently the gathering of foreign intelligence must be the primary purpose of a FISA order, the information gleaned can be used in a criminal proceeding. To use such information in a criminal case, a prosecutor must secure advance authorization from the attorney general. Any person who has been recorded through the surveillance, an "aggrieved person," must also be notified before the information is used against them.28 An aggrieved person may move to suppress the information.29 A FISA suppression hearing is unique because the government responds ex parte and the court reviews the government's response in camera. This process is triggered by an affidavit filed by the attorney general attesting that disclosure or an adversary hearing would harm national security.30 This procedure has been upheld on several occasions.31 In U.S. v. Nicholson, 955 F.Supp. 582 (E.D. VA. 1997) the court stated: "[t]his court knows of no instance in which a court has required disclosure or an adversary hearing in determining the legality of a FISA surveillance."32 Also, according to Department of Justice officials, no defendant has successfully obtained suppression of information obtained under FISA in a criminal matter.33

The use of FISA against terrorist organizations is both lawful and effective. FISA is a method for collecting necessary evidence in the war on terrorism. In the present environment, each and every investigative method must be utilized to its fullest extent. The acts that have already taken place must be investigated criminally. The criminal investigation has at its disposal normal electronic surveillance methods.34 In addition to the criminal investigation, the United States must use every resource to stop further actions from being initiated and to identify and locate those responsible. While FISA is not the sole savior, it is an important resource that must be aggressively utilized. In the earlier prosecution involving the East Africa embassies, al Qaeda has already been determined to be a terrorist organization, for which the use of FISA was deemed appropriate.35 Clearly, the use of this investigative tool may be strengthened by changing the necessary scope of the investigation from collecting foreign intelligence as the primary purpose to the lesser standard of a significant purpose.

Changed technology must also be addressed. Currently, FISA limits court orders permitting surveillance to a particular facility, such as a telephone or computer line.36 The changes that rapidly occur in the telecommunications field necessitate that the court orders permit the surveillance of individuals, not just the facilities they use. This change would allow the investigative agents to monitor the individual, irrespective of which facility he used. Although significant logistical problems would result when trying to monitor each facility utilized by a target, such a change would at least authorize the monitoring, which is not currently available.

FISA must be aggressively used by intelligence agencies to combat terrorism. Until bin Laden and his organization, as well as all others that put Americans at risk are eliminated as threats, FISA will remain one of the primary weapons in the war on terrorism.

"courts have consistently held that both the electronic surveillance and the physical search provisions of FISA pass constitutional muster."

1 United States v. Truong, 629 F.2d 908, (4th Cir. 1980).
2 S.Rep No. 604, 95th Cong., 1st Sess. 15, reprinted in 1978 U.S. Code Cong. & Ad. News 3904, 3916.
3 50 U.S.C. ¤ 1804(a).
4 50 U.S.C. ¤ 1805(c)(1)(B).
5 50 U.S.C. ¤ 1804(a)(5) & (6).
6 50 U.S.C. ¤ 1801(h).
7 50 U.S.C. ¤ 1803.
8 50 U.S.C. ¤ 1804(a)(7).
9 United States v. Pelton, 835 F.2d 1067, 1075 (4th Cir. 1987), cert. denied, 486 U.S. 1010 (1988).
10 General Accounting Office, "FBI Intelligence Investigations, Coordination Within Justice on Counterintelligence Criminal Matters is Limited." Report GAO-01-780, July 2001, at 3.
11 Id. at 12-14.
12 50 U.S.C. ¤ 1803.
13 50 U.S.C. ¤ 1803(b).
14 Id.
15 50 U.S.C. ¤ 1801(e)(1).
16 50 U.S.C. ¤ 1801(a)(4).
17 United States v. Cavanagh, 807 F.2d 787, 790 (9th Cir. 1987).
18 United States v. Rahman, 189 F.3d 88 (2nd Cir. 1999), cert. denied, 528 U.S. 1094 (2000).
19 United States v. Rahman, 861 F. Supp. 247, 251 (S.D. N.Y. 1994), affirmed at 189 F.3d 88 (2nd Cir. (1999), <P>cert. denied<I>, 528 U.S. 1094 (2000), quoting Duggan at 77.
20 50 U.S.C. ¤ 1801(c)(1) & (d).
21 Rahman, 861 F. Supp. at 253.
22 Id. at 251.
23 United States v. Usama bin Laden, 126 F. Supp.2d. 264 (S.D.N.Y 2000) citing United States v. Clay, 430 F.2d 165 (5th Cir. 1970); United States v. Brown, 484 F.2d 418 (5th Cir. 1973); United States v. Butenko, 494 F.2d 593 (3rd Cir. 1974); United States v. Buck, 548 F.2d 871 (9th Cir. 1977); United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980).
24 United States v. Duggan, 743 F.2d 59, 74 (2nd Cir. 1984).
25 50 U.S.C. ¤ 1804 (a)(7)(B).
26 Duggan, 743 F.2d at 77; United States v. Johnson, 952 F.2d 565, 572 (1st Cir. 1991), cert. denied, 506 U.S. 816 (1992); United States v. Pelton, 835 F.2d 1067, 1075-1076 (4th Cir. 1987) cert. denied, 486 U.S. 1010 (1988); United States v. Badia, 827 F.2d 1458, 1464 (11th Cir. 1987).
27 H.R. 2975, "Provide Appropriate Tools Required to Intercept and Obstruct Terrorism (PATRIOT) Act of 2001," Sec.153.
28 50 U.S.C. ¤ 1806(b) & (c).
29 50 U.S.C. ¤ 1806(e).
30 50 U.S.C. ¤ 1806(f).
31 United States v. Thompson, 752 F. Supp. 75 (W.D.N.Y. 1990); United States v. Sarkissian, 841 F.2d 959 (9th Cir. 1988); United States v. Duggan, 743 F.2d 59 (2nd Cir. 1984); United States v. Belfield, 692 F.2d 141 (D.C. Cir. 1982).
32 United States v. Nicholson, 955 F. Supp. at 586. (E.D. Va, 1997).
33 General Accounting Office, supra n. 10, at 3.
34 18 U.S.C.¤ 2510 et seq.
35 United States v. Usama bin Laden, 126 F. Supp.2d. 264 (S.D.N.Y 2000).
36 50 U.S.C. ¤ 1805(c)(1)(B).