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MEMO __
U.S. Department of Justice
Office of Legal Counsel
Office of the Deputy Assistant Attorney General
Washington, DC. 20530
September 25, 2001
MEMORANDUM FOR DAVID S. KRIS
ASSOCIATE DEPUTY ATTORNEY GENERAL
From: John C. Yoo, Deputy Assistant
Attorney General
Re: Constitutionality of Amending
Foreign Intelligence Surveillance Act to Change the "Purpose" Standard
for Searches
You have asked for our opinion on
the constitutionality of amending the Foreign Intelligence Surveillance
Act, 50 U.S.C.§§ 1801-1811 (1994 & West Supp. 2000) ("FISA"), so that a
search may be approved when the collection of foreign intelligence is "a
purpose" of the search. In its current form, F1SA requires that "the
purpose" of the search be for the collection of foreign intelligence. 50
U.S.C. § 1804(a)(7)(B). We believe that this amendment would not violate
the Fourth Amendment.
It should be made clear at the
outset that the proposed FISA amendment cannot cause a facial violation
of the Fourth Amendment. Because "a" purpose would include the current
warrant applications in which foreign intelligence is "the" purpose of
the search, a significant class of valid searches would continue to fall
within the new statutory language. It may be the case that some warrant
applications - for example, those instances where criminal investigation
constitutes an overwhelming purpose of the surveillance - will be
rejected by the FISA court. In those situations, the FISA amendment
would not be unconstitutional, so much as the Court would be construing
the statute, according to the canon that statutes are to be read to
avoid constitutional problems, so as not to require the issuance of a
warrant that would go beyond the Fourth Amendment. In other words, the
proposed amendment cannot violate the Fourth Amendment because it would
simply allow the Department to apply for FISA warrants up to the limit
permitted by the Constitution, as determined by the FISA court. Amending
FISA merely gives the Department the full flexibility to conduct foreign
intelligence surveillance that is permitted by the Constitution itself.
We caution, however, that much will
depend on the manner in which the Department chooses to operate within
the new standard. Some warrant applications might be rejected by the
courts if prosecutors become too involved in the planning and execution
of FISA searches. Nonetheless, as we observed in 1995, "the courts have
been exceedingly deferential to the government and have almost
invariably declined to suppress the evidence, whether they applied the
'primary purpose' test or left open the possibility of a less demanding
standard." Memorandum for Michael Vatis, Deputy Director, Executive
Office for National Security, from Walter Dellinger, Assistant Attorney
General, Office of Legal Counsel, Re: Standards for Searches Under
Foreign Intelligence Surveillance Act at 1 (Feb. 14, 1995). We believe
that the Department would continue to win such deference from the courts
if it continues to ensure that criminal investigation not become a
primary purpose of FISA surveillance.
I.
The Fourth Amendment declares that
"[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." U.S. Const, amend. IV (emphasis added). The Amendment
also declares that "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." Id. .
Thus, the touchstone for review is
whether a search is "reasonable." See, e.g., Vernonia School Dist. 47J
v. Acton, 515 U.S. 646, 652 (1995) ("[a]s the text of the Fourth
Amendment indicates, the ultimate measure of the constitutionality of a
governmental search is 'reasonableness'"). When law enforcement
undertakes a search to discover evidence of criminal wrongdoing, the
Supreme Court has said that reasonableness generally requires a judicial
warrant. See id. at 653. But the Court has made clear that a warrant is
not required for all government searches. A warrantless search can be
constitutional "when special needs, beyond the normal need for law
enforcement, make the warrant and probable-cause requirement
impracticable." Id.
As a result, the Court properly has
found a variety of warrantless government searches to be consistent with
the Fourth Amendment. See, e.g., Pennsylvania v. Labron, 518 U.S. 938
(1996) (per curiam) (certain automobile searches); Acton (drug testing
of high school athletes); Michigan v. Dept. of State Police v. Sitz, 496
U.S. 444 (1990) (drunk driver checkpoints); Skinner v. Railway Labor
Executives' Ass'n., 489 U.S. 602 (1989) (drug testing of railroad
personnel); Treasury Employees v. Von Raab, 489 U.S. 656 (1989) (random
drug testing of federal customs officers); United States v. Place, 462
U.S. 696 (1983) (temporary seizure of baggage); Michigan v. Summers, 452
U.S. 692 (1981) (detention to prevent flight and to protect law
enforcement officers); Terry v. Ohio, 392 U.S. 1 (1968) (temporary stop
and limited search for weapons).
In these circumstances, the Court
has examined several factors to determine whether a warrantless search
is reasonable. As the Court stated just last Term: "When faced with
special law-enforcement needs, diminished expectations of privacy,
minimal intrusions, or the like, the Court has found that certain
general, or individual, circumstances may render a warrantless search or
seizure reasonable." Illinois v. McArthur, 121 S. Ct. 946,949 (2001). In
creating these exceptions to its warrant requirement, the Court has
found that, under the totality of the circumstances, the "importance of
the governmental interests" has outweighed the "nature and quality of
the intrusion on the individual's Fourth Amendment interests." See
Tennessee v. Garner, 471 U.S. 1, 8 (1985).
Of particular relevance here, the
Court has found warrantless searches reasonable when there are "exigent
circumstances," such as a potential threat to the safety of law
enforcement officers or third parties. The Court has also recognized
that a government official may not need to show the same kind of proof
to a magistrate to obtain a warrant for a search unrelated to the
investigation of a crime "as one must who would search for the fruits or
instrumentalities of crime." Camara v. Municipal Court of San Francisco,
387 U.S. 523,538 (1967). For example, "[w]here considerations of health
and safety are involved, the facts that would justify an inference of
'probable cause' to make an inspection are clearly different from those
that would justify such an inference where a criminal investigation has
been undertaken." Id. See also Indianapolis v. Edmond, 531 U.S. 32,44
(2000) (in context of seizure and exigent circumstances, Fourth
Amendment would permit appropriately tailored roadblock to thwart an
imminent terrorist attack or catch a dangerous criminal who is likely to
flee).
II.
This analysis of Fourth Amendment
doctrine demonstrates that the government could conduct searches to
obtain foreign intelligence without satisfying all of the requirements
applicable in the normal law enforcement context. It is important to
understand the current shape of Fourth Amendment law, and how it would
apply to the circumstances at hand, in order to evaluate the
constitutionality of the proposed amendment to FISA. As we have noted
earlier, the Fourth Amendment's reasonableness test for searches
generally calls for a balancing of the government's interest against the
individual's Fourth Amendment interests. Here, the nature of the
government interest is great. In the counter-intelligence field, the
government is engaging in electronic surveillance in order to prevent
foreign powers or their agents from obtaining information or conducting
operations that would directly harm the security of the United States.
To be sure, the Supreme Court has
subjected counter-intelligence searches of purely domestic terrorist
groups to a warrant requirement. When it first applied the Fourth
Amendment to electronic surveillance, the Supreme Court specifically
refused to extend its analysis to include domestic searches that were
conducted for national security purposes. Katx v. United States, 389
U.S. 347, 358 n.23 (1967); see also Mitchell v. Forsyth, 472 U.S.
511,531 (1985). Later, however, in United States v. United States
District Court for the Eastern District of Michigan, 407 U.S. 297,299
(1972) ("Keith,"), the Court held that the warrant requirement should
apply to cases of terrorism by purely domestic groups. In doing so, the
Justices framed the question by explaining that, "[i]ts resolution is a
matter of national concern, requiring sensitivity both to the
Government's right to protect itself from unlawful subversion and attack
and to the citizen's right to be secure in his privacy against
unreasonable Government intrusion." While acknowledging that "unless
Government safeguards its own capacity to function and to preserve the
security of its people, society itself could become so disordered that
all rights and liberties would be endangered," id. at 312, the Court
cautioned that "[t]he danger to political dissent is acute where the
Government attempts to act under so vague a concept as the power to
protect 'domestic security.' Given the difficulty of defining the
domestic security interest, the danger of abuse in acting to protect
that interest becomes apparent." Id. at 314. As a result, the Court held
that the absence of neutral and disinterested magistrates governing the
reasonableness of the search impermissibly left "those charged with
[the] investigation and prosecutorial duty [as] the sole judges of when
to utilize constitutionally sensitive means in pursuing their tasks." Id
at 317.
The court explicitly noted, however,
that it was not considering the scope of the President's surveillance
power with respect to the activities of foreign powers within or without
the country. Id. at 308. And after the Keith decision, lower courts have
found that when the government conducts a search, for national security
reasons, of a foreign power or its agents, it need not meet the same
requirements that would normally apply in the context of criminal law
enforcement, In United States v. Truong Dinh Hung, 629 F.2d 908 (4th
Cir. 1980), for example, the Fourth Circuit observed that "the needs of
the executive are so compelling in the area of foreign intelligence,
unlike the area of domestic security, that a uniform warrant requirement
would, following Keith, 'unduly frustrate,' the President in carrying
out his foreign affairs responsibilities." Id. at 913. The Court based
this determination on a number of factors, including:
(1) "[a] warrant requirement would reduce the flexibility
of executive foreign intelligence initiatives, in some cases delay
executive response to foreign intelligence threats, and increase the
chance of leaks regarding sensitive executive operations," id.;
(2) "the executive possesses unparalleled expertise to
make the decision whether to conduct foreign intelligence surveillance,
whereas the judiciary is largely inexperienced in making the delicate
and complex decisions that lie behind foreign intelligence surveillance
— 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 that information from one particular source," id.
at 913-14; and
(3) the executive branch "is also constitutionally
designated as the pre-eminent authority in foreign affairs." Id. at 914.
The Court also recognized, however,
that "because individual privacy interests are severely compromised any
time the government conducts surveillance without prior judicial
approval, this foreign intelligence exception to the Fourth Amendment
warrant requirement must be carefully limited to those situations in
which the interests of the executive are paramount." Id. at 915. See
also United States v. Brown, 484 F. 2d 418 (5 th Cir. 1973), cert.
denied, 415 U.S. 960 (1974); United States v. Buck, 548 F.2d 873 (9th
Cir.), cert, denied, 434 U.S. 890 (1977); United States v. Clay, 430
F.2d 165 (5th Cir. 1970), rev'd on other grounds, 403 U.S. 698 (1971).
Therefore, the Fourth Circuit held
that the government was relieved of the warrant requirement when (1) the
object of the search or surveillance is a foreign power, its agent or
collaborators since such cases are "most likely to call into play
difficult and subtle judgments about foreign and military affairs," 629
F.2d at 915; and (2) "when the surveillance is conducted 'primarily' for
foreign intelligence reasons .... because once surveillance becomes
primarily a criminal investigation, the courts are entirely competent to
make the usual probable cause determination, and because, importantly,
individual privacy interests come to the fore and government foreign
policy concerns recede when the government is primarily attempting to
form the basis for a criminal prosecution." Id.
The factors favoring warrantless
searches for national security reasons may be even more compelling under
current circumstances than at the time of these lower court decisions.
After the attacks on September 11, 2001, the government interest in
conducting searches related to fighting terrorism is perhaps of the
highest order - the need to defend the nation from direct attack. As the
Supreme Court has said, "It is 'obvious and unarguable' that no
governmental interest is more compelling than the security of the
Nation." Haig v. Agee, 453 U.S. 280, 307 (1981). The compelling nature
of the government's interest here may be understood in light of the
Founders' express intention to create a federal government "cloathed
with all the powers requisite to the complete execution of its trust."
The Federalist No. 23, at 147 (Alexander Hamilton) (Jacob E. Cooke ed.,
1961). Foremost among the objectives committed to that trust by the
Constitution is the security of the nation. As Hamilton explained in
arguing for the Constitution's adoption, because "the circumstances
which may affect the public safety" are not "reducible within certain
determinate limits,"
it must be admitted, as a necessary consequence, that
there can be no limitation of that authority, which is to provide for
the defence and protection of the community, in any matter essential to
its efficacy.
Id. at 147-48. [1] Within the limits
that the Constitution itself imposes, the scope and distribution of the
powers to protect national security must be construed to authorize the
most efficacious defense of the nation and its interests in accordance
"with the realistic purposes of the entire instrument." Lichter v.
United States, 334 U.S. 742, 782 (1948). Nor is the authority to protect
national security limited to that necessary "to victories in the field."
Application of Yamashita, 327U.S. 1,12(1946). The authority over
national security "carries with it the inherent power to guard against
the immediate renewal of the conflict." Id.
The text,
structure and history of the Constitution establish that the Founders
entrusted the President with the primary responsibility, and therefore
the power, to ensure the security of the United States in situations of
grave and unforeseen emergencies. Intelligence gathering is a necessary
function that enables the President to carry out that authority.
The Constitution, for example, vests in the President the power to
deploy military force in the defense of the United States by the Vesting
Clause, U.S. Const, art. II, § 1, cl. 1, and by the Commander in Chief
Clause, id., § 2, cl. 1. [2] Intelligence operations, such as electronic
surveillance, very well may be necessary and proper for the effective
deployment and execution of military force against terrorists. Further,
the Constitution makes explicit the President's obligation to safeguard
the nation's security by whatever lawful means are available by imposing
on him the duty to "take Care that the Laws be faithfully executed."
Id., § 3. The implications of constitutional text and structure are
confirmed by the practical consideration that national security
decisions often require the unity in purpose and energy in action that
characterize the Presidency rather than Congress. [3]
Judicial decisions since the
beginning of the Republic confirm the President's constitutional power
and duty to repel military action against the United States and to take
measures to prevent the recurrence of an attack. As Justice Joseph Story
said long ago, "[i]t may be fit and proper for the government, in the
exercise of the high discretion confided to the executive, for great
public purposes, to act on a sudden emergency, or to prevent an
irreparable mischief, by summary measures, which are now found in the
text of the laws." The Apollon, 22 U.S. (9 Wheat.) 362, 366-67 (1824).
The Constitution entrusts the "power [to] the executive branch of the
Government to preserve order and insure the public safety in times of
emergency, when other branches of the Government are unable to function,
or their functioning would itself threaten the public safety." Duncan v.
Kahanamoku, 327 U.S. 304,335 (1946) (Stone, C.J., concurring). If the
President is confronted with an unforeseen attack on the territory and
people of the United States, or other immediate, dangerous threat to
American interests and security, it is his constitutional responsibility
to respond to that threat. See, e.g.. The Prize Cases, 67 U.S. (2 Black)
635,668 (1862) ("If a war be made by invasion of a foreign nation, the
President is not only authorized but bound to resist force by force...
without waiting for any special legislative authority."); Kahanamoku,
327 U.S. at 336 (Stone, C.J., concurring) ("Executive has broad
discretion in determining when the public emergency is such as to give
rise to the necessity" for emergency measures); United States v. Smith,
27 F. Cas. 1192,1230 (C.C.D.N.Y. 1806) (No. 16,342) (Paterson, Circuit
Justice) (regardless of statutory authorization, it is "the duty ... of
the executive magistrate ... to repel an invading foe"); see also 3
Story, Commentaries § 1485 ("[t]he command and application of the public
force ... to maintain peace, and to resist foreign invasion" are
executive powers).
This Office has
maintained, across different administrations and different political
parties, that the President's constitutional responsibility to defend
the nation may justify reasonable, but warrantless, counter-intelligence
searches. In 1995, we recognized that the
executive branch needed flexibility in conducting foreign intelligence
surveillance. Memorandum for Michael Vatis, Deputy Director, Executive
Office for National Security, From Walter Dellinger, Assistant Attorney
General, Re: Standards for Searches Under Foreign Intelligence
Surveillance Act (Feb. 14,1995). In 1980, this Office also said that
"the lower courts - as well as this Department - have frequently
concluded that authority does exist in the President to authorize such
searches regardless of whether the courts also have the power to issue
warrants for those searches." Memorandum for the Attorney General, from
John M. Harmon, Assistant Attorney General, Re: Inherent Authority at 1
(Oct. 10, 1980). Based on similar reasoning, this Office recently
concluded that the President could receive materials, for national
defense purposes, acquired through Title III surveillance methods or
grand juries. See Memorandum for Frances Fragos Townsend, Counsel,
Office of Intelligence Policy and Review, from Randolph D. Moss,
Assistant Attorney General, Re: Title III Electronic Surveillance
Material and the Intelligence Community (Oct. 17, 2000); Memorandum for
Gerald A. Schroeder, Acting Counsel, Office of Intelligence Policy and
Review, from Richard L. Shiffrin, Deputy Assistant Attorney General, Re:
Grand Jury Material and the Intelligence Community (Aug. 14, 1997);
Disclosure of Grand Jury Matters to the President and Other Officials,
17 Op. O.L.C 59 (1993). As the Commander-in-Chief, the President must be
able to use whatever means necessary to prevent attacks upon the United
States; this power, by implication, includes the authority to collect
information necessary for its effective exercise.
This examination
of the government's interest demonstrates that the current situation, in
which Congress has recognized the President authority to use force in
response to a direct attack on the American homeland, has changed the
calculus of a reasonable search. The government's interest has changed
from merely conducting foreign intelligence surveillance to counter
intelligence operations by other nations, to one of preventing terrorist
attacks against American citizens and property within the continental
United States itself. The courts have observed
that even the use of deadly force is reasonable under the Fourth
Amendment if used in self-defense or to protect others. See, e.g.,
Romero v. Board of County Commissioners, 60 F.3d 702 (10 th Cir. 1995),
cert, denied, 516 U.S. 1073 (1996); O'Neal v. DeKalb County, 850 F.2d
653 (11th Cir. 1988). Here, for Fourth Amendment purposes, the right to
self-defense is not that of an individual, but that of the nation and of
its citizens. Cf. In re Neagle, 135 U.S. 1 (1890); The Prize Cases,
67U.S. (2 Black) 635 (1862). If the government's heightened interest in
self-defense justifies the use of deadly force, then it certainly would
also justify warrantless searches.
III.
It is against this background that
the change to FISA should be understood. Both the executive branch and
the courts have recognized that national security searches against
foreign powers and their agents need not comport with the same Fourth
Amendment requirements that apply to domestic criminal investigations.
FISA embodies idea that, in this context, the Fourth Amendment applies
differently than in the criminal context. Nonetheless, FISA itself is
not required by the Constitution, nor is it necessarily the case that
its current standards match exactly to Fourth Amendment standards.
Rather, like the warrant process in the normal criminal context, FISA
represents a statutory procedure that, if used, will create a
presumption that the surveillance is reasonable under the Fourth
Amendment. Thus, it is wholly
appropriate to amend FISA to bring its provisions into line with changes
in the Fourth Amendment's reasonableness calculus. As outlined above,
that calculus has shifted in light of the September 11 attacks and the
increased counter-terrorism threat.
This is not to say that FISA
searches would be constitutional no matter how little foreign
intelligence purpose is present in the warrant application. We do not
disagree with the analysis of the courts that it is the national
security element in the search that justifies its exemption from the
standard law enforcement warrant process. After the enactment of FISA,
for example, courts have emphasized the distinction between searches
done to collect foreign intelligence and those undertaken for pursuing
criminal prosecutions. Although this may be due, in part, to a statutory
construction of the FISA provisions, the courts' language may be seen as
having broader application. As the Second Circuit has emphasized,
although courts, even prior to the enactment of FISA, concluded that the
collection of foreign intelligence information constituted an exception
to the warrant requirement, "the governmental interests presented in
national security investigations differ substantially from those
presented in traditional criminal prosecutions." United States v.
Duggan, 743 F.2d 59, 72 (2d Cir. 1984). The Duggan Court held that FISA
did not violate the Fourth Amendment because the requirements of FISA
"provide an appropriate balance between the individual's interest in
privacy and the government's need to obtain foreign intelligence
information." Id. at 74. However, the court's holding was made in the
context of acknowledging the reasonableness of "the adoption of
prerequisites to surveillance that are less stringent than those
precedent to the issuance of a warrant for a criminal investigation."
Id. at 73. As such, the court's finding that the purpose of the
surveillance was to secure foreign intelligence information, and not
directed towards criminal prosecution, may very well be of
constitutional magnitude.
Similarly, the Ninth Circuit found
that the lowered probable cause showing required by FISA is reasonable
because, although the application need not state that the surveillance
is likely to uncover evidence of a crime, "the purpose of the
surveillance is not to ferret out criminal activity but rather to gather
intelligence, [and therefore] such a requirement would be illogical."
United States v. Cavanagh, 807 F.2d 787, 790-91 (9th Cir. 1987)
(Kennedy, J.). [4] And consistent with both the language of the Second
and Ninth Circuits, the First Circuit, in upholding the
constitutionality of FISA, explained that "[although evidence obtained
under FISA subsequently may be used in criminal prosecutions, the
investigation of criminal activity cannot be the primary purpose of the
surveillance [and therefore] [t]he act is not to be used as an end-run
around the Fourth Amendment's prohibition of warrantless searches."
United States v. Johnson, 952 F.2d 565, 572 (l th Cir. 1991) (citations
omitted), cert, denied, 506 U.S. 816 (1992).
On the other hand, it is also clear
that while FISA states that "the" purpose of a search is for foreign
surveillance, that need not be the only purpose. Rather, law enforcement
considerations can be taken into account, so long as the surveillance
also has a legitimate foreign intelligence purpose. FISA itself makes
provision for the use in criminal trials of evidence obtained as a
result of FISA searches, such as rules for the handling of evidence
obtained through FISA searches, 50 U.S.C. §§ 1801(h) & 1806, and
procedures for deciding suppression motions, id. § 1806(e).
In approving FISA, the Senate Select
Committee on Intelligence observed: "U.S. persons may be authorized
targets, and the surveillance is part of an investigative process often
designed to protect against the commission of serious crimes such as
espionage, sabotage, assassination, kidnapping, and terrorist acts
committed by or on behalf of foreign powers. Intelligence and criminal
law enforcement tend to merge in this area."
S. Rep. No. 95-701, at 10-11 (1978). The Committee also recognized that
"foreign counterintelligence surveillance frequently seeks information
needed to detect or anticipate the commission of crimes," and that
"surveillances conducted under [FISA] need not stop once conclusive
evidence of a crime is obtained, but instead may be extended longer
where protective measures other than arrest and prosecution are more
appropriate." Id. at 11.
The courts agree that the gathering
of counter-intelligence need not be the only purpose of a constitutional
FISA search. An "otherwise valid FISA surveillance is not tainted simply
because the government can anticipate that the fruits of such
surveillance may later be used, as allowed by § 1806(b), as evidence in
a criminal trial." Duggan, 743 F.2d at 78. This is due to the
recognition that "in many cases the concerns of the government with
respect to foreign intelligence will overlap those with respect to law
enforcement." Id. In order to
police the line between legitimate foreign intelligence searches and law
enforcement, most courts have adopted the test that the "primary
purpose" of a FISA search is to gather foreign intelligence.
See id.; United States v. Johnson, 952 F.2d 565, 572 (1st
Cir. 1991); United States v. Pelton, 835 F.2d 1067 (4th Cir. 1987),
cert, denied, 486 U.S. 1010 (1988); United States v. Badia, 827 F.2d
1458,1464 (11th Cir. 1987), cert, denied, 485 U.S. 937 (1988). Not all
courts, however, have felt compelled to adopt the primary purpose test.
The Ninth Circuit has explicitly reserved the question whether the
''primary purpose" is too strict and the appropriate test is simply
whether there was a legitimate foreign intelligence purpose. United
States v. Sarkissian, 841 F.2d 959,964 (9th Cir. 1988). No other Circuit
has explicitly held that such a formulation would be unconstitutional.
In light of this
case law and FISA's statutory structure, we do not believe that an
amendment of FISA from "the" purpose to "a" purpose would be
unconstitutional. To be sure, it is difficult to predict with exact
certainty where the courts would draw the line in the context of
balancing individual privacy interests and government foreign policy
concerns. So long, however, as the government has a legitimate objective
in obtaining foreign intelligence information, it should not matter
whether it also has a collateral interest in obtaining information for a
criminal prosecution. As courts have observed,
the criminal law interests of the government do not taint a FISA search
when its foreign intelligence objective is primary. This implies that a
FISA search should not be invalid when the interest in criminal
prosecution is significant, but there is still a legitimate foreign
intelligence purpose for the search. This concept flows from the courts'
recognition that the concerns of government with respect to foreign
policy will often overlap with those of law enforcement.
Further, there are other reasons
that justify the constitutionality of the proposed change to FISA.
First, as an initial matter, the alteration in the statute could not be
facially unconstitutional. As the Court has held, in order to succeed a
facial challenge to a statute must show that the law is invalid "in
every circumstance." Babbitt v. Sweet Home Chapter, 515 U.S. 687,699
(1995). As the Court made clear in United States v. Salerno, 481 U.S.
739 (1987), "[a] facial challenge to a legislative Act is, of course,
the most difficult challenge to mount successfully, since the challenger
must establish that no set of circumstances exists under which the Act
would be valid." Id. at 745. Such a challenge would fail here. Even if
FISA were amended to require that "a" purpose for the search be the
collection of foreign intelligence, that class of searches would
continue to include both searches in which foreign intelligence is the
only purpose and searches in which it is the primary purpose - both
permissible under current case law.
Second, amending
FISA would merely have the effect of changing the statute to track the
Constitution. Courts have recognized that the executive branch has the
authority to conduct warrantless searches for foreign intelligence
purposes, so long as they are reasonable under the Fourth Amendment.
Although the few courts that have addressed the issue have followed a
primary purpose test, it is not clear that the Constitution, FISA, or
Supreme Court case law requires that test. It may very well be the case
that the primary purpose test is more demanding than that called for by
the Fourth Amendment's reasonableness requirement. Adopting the proposed
FISA amendment will continue to make clear that the government must have
a legitimate foreign surveillance purpose in order to conduct a FISA
search. It would also recognize the possibility that because the
executive can more fully assess the requirements of national security
than can the courts, and because the President has a constitutional duty
to protect the national security, the courts should not deny him the
authority to conduct intelligence searches even when the national
security purpose is secondary to criminal prosecution.
At the same time, however, it still remains the province of the FISA
court to determine whether such searches are constitutional by following
a primary purpose test, or a less severe standard, such as requiring
only a "significant" or "substantial" purpose. By altering the FISA
standard to "a" purpose, Congress would allow the government to file
applications that would be consistent with whatever Fourth Amendment
standard the FISA court chooses.
To be sure, the government might
seek a FISA warrant where "a" foreign intelligence purpose is present,
but "the primary" purpose is to obtain evidence in furtherance of a
criminal investigation. The fact
that the search is aimed at furthering a criminal investigation, which
only incidentally promotes the national security and our foreign affairs
interests, probably would not exempt the search from the usual probable
cause requirements of the Fourth Amendment.
Once the objective in acquiring the information is aimed primarily at
effecting a criminal prosecution, as opposed to gathering intelligence
information for counterintelligence purposes, the case may be more like
Keith than it is like Truong Dinh Hung. Rather than being a matter of
judicial second-guessing of the executive branch's determination that a
foreign intelligence search is necessary, the objective would center
instead on the desire to obtain information for a criminal prosecution.
In these circumstances, however, the
FISA amendment would not permit unconstitutional searches.
A court could still conclude that there
is no real distinction between the law enforcement objective with
incidental national security considerations, despite the fact that it
arises in the foreign intelligence context, and the objective at issue
in Keith. Once the primary purpose of the
search is to further a criminal prosecution of one or more individuals,
then absent exigent circumstances it would seem that the core principles
of the Fourth Amendment are triggered, requiring the reasonableness
determination of a neutral magistrate based on the full probable cause
standard of the Fourth Amendment.
No longer would it be a question of conducting the "delicate and
complex decisions that lie behind foreign intelligence surveillance,"
Truong Dinh Hung, 629 F.2d at 913, nor would it primarily be a question
of the "importance of particular information to the security of the
United States" or "diplomacy and military affairs," id. at 913-14. A
court could decide that the warrant instead asked whether there are
sufficient grounds to search premises or to conduct surveillance of
private individuals for purposes of pursuing criminal prosecutions. In
such a context, "individual privacy interests come to the fore and
government foreign policy concerns recede." Id. at 915.
A FISA court still remains an
Article III court. As such, it still has an obligation to reject FISA
applications that do not truly qualify for the relaxed constitutional
standards applicable to national security searches. Rejecting an
individual application, however, would not amount to a declaration that
the "a" purpose standard was unconstitutional. Rather, the court would
only be interpreting the new standard so as not to violate the
Constitution, in accordance with the canon of statutory construction
that courts should read statutes to avoid constitutional difficulties.
See Public Citizen v. Department of Justice, 491 U.S. 440,466 (1989);
Edward J. DeBartolo Corp, v. Florida Gulf Coast Building & Construction
Trades Council, 485 U.S. 568, 575 (1988). Amending FISA to require only
"a" purpose merely removes any difference between the statutory standard
for reviewing FISA applications and the constitutional standard for
national security searches.
Third, it is not unconstitutional
to establish a standard for FISA applications that may be less demanding
than the current standard, because it seems clear that the balance of
Fourth Amendment considerations has shifted in the wake of the September
11 attacks. As discussed earlier in this
memo, the reasonableness of a search under the Fourth Amendment depends
on the balance between the government's interests and the privacy rights
of the individuals involved. As a result of the direct terrorist attacks
upon the continental United States, the government's interest has
reached perhaps its most compelling level, that of defending the nation
from assault. This shift upward in governmental interest has the effect
of expanding the class of reasonable searches under the Fourth
Amendment. Thus, some surveillance that might not have satisfied the
national security exception for warrantless searches before September
11, might today. Correspondingly, changing
the FISA standard to "a" purpose will allow FISA warrants to issue in
that class of searches. A lower standard also recognizes that, as
national security concerns in the wake of the September 11 attacks have
dramatically increased, the constitutional powers of the executive
branch have expanded, while judicial competence has correspondingly
receded. Amending FISA only recognizes that
the Fourth Amendment standards will shift in reaction to our changed
national security environment.
Fourth, amending FISA in this
manner would be consistent with the Fourth Amendment because it only
adapts the statutory structure to a new type of counter-intelligence.
FISA was enacted at a time when there was a clear distinction between
foreign intelligence threats, which would be governed by more flexible
standards, and domestic law enforcement, which was subject to the Fourth
Amendment's requirement of probable cause. Even at the time of the act's
passage in 1978, however, there was a growing realization that
"[Intelligence and criminal law enforcement tend to merge in [the] area"
of foreign counterintelligence and counterterrorism. S. Rep. No. 95-701,
at 11. September 11's events demonstrate that the fine distinction
between foreign intelligence gathering and domestic law enforcement has
broken down. Terrorists, supported by foreign
powers or interests, had lived in the United States for substantial
periods of time, received training within the country, and killed
thousands of civilians by hijacking civilian airliners. The attack,
while supported from abroad, was carried out from within the United
States itself and violated numerous domestic criminal laws.
Thus, the nature of the national security threat,
while still involving foreign control and requiring foreign
counterintelligence, also has a significant domestic component, which
may involve domestic law enforcement. Fourth Amendment doctrine, based
as it is ultimately upon reasonableness, will have to take into account
that national security threats in future cannot be so easily cordoned
off from domestic criminal investigation. As a result, it is likely that
courts will allow for more mixture between foreign intelligence
gathering and domestic criminal investigation, at least in the
counter-terrorism context. Changing the FISA
standard from "the" purpose to "a" purpose would be consistent with this
likely development.
Conclusion
For the foregoing reasons, we
believe that changing FISA's requirement that "the" purpose of a FISA
search be to collect foreign intelligence to "a" purpose will not
violate the Constitution.
_______________
Notes:
1. See also The Federalist No. 34,
at 211 (Alexander Hamilton) (Jacob E. Cooke ed., 1961) (federal
government is to possess "an indefinite power of providing for
emergencies as they might arise"); The Federalist No. 41, at 269 (James
Madison) ("Security against foreign danger is one of the primitive
objects of civil society.. . .The powers requisite for attaining it,
must be effectually confided to the federal councils.") Many Supreme
Court opinions echo Hamilton's argument that the Constitution
presupposes the indefinite and unpredictable nature of the "the
circumstances which may affect the public safety," and that the federal
government's powers are correspondingly broad. See, e.g.. Dames & Moore
v. Regan, 453 U.S. 654,662 (1981) (noting that the President "exercis[es]
the executive authority in a world that presents each day some new
challenge with which he must deal''); Hamilton v. Regents, 293 U.S.
245,264 (1934) (federal government's war powers are "well-nigh
limitless" in extent); Stewart v. Kahn, 78 U.S. (11 Wall.) 493, 506
(1870) ("The measures to be taken in carrying on war ... are not defined
[in the Constitution]. The decision of all such questions rests wholly
in the discretion of those to whom the substantial powers involved are
confided by the Constitution.''); Miller v. United States, 78 U.S. (11
Wall.) 268, 305 (1870) ("The Constitution confers upon Congress
expressly power to declare war, grant letters of marque and reprisal,
and make rules respecting captures on land and water. Upon the exercise
of these powers no restrictions are imposed. Of course the power to
declare war involves the power to prosecute it by all means and in any
manner in which war may be legitimately prosecuted.").
2. See Johnson v. Eisentrager, 339
U.S. 763, 789 (1950) (President has authority to deploy United States
armed forces "abroad or to any particular region"); Fleming v. Page, 50
U.S. (9 How.) 603,615 (1850) ("As commander-in-chief, [the President] is
authorized to direct the movements of the naval and military forces
placed by law at his command, and to employ them in the manner he may
deem most effectual."); Loving v. United States, 517 U.S. 748,776 (1996)
(Scalia,J., concurring in part and concurring in judgment) (The
"inherent powers" of the Commander in Chief "are clearly extensive.");
Maul v. United States, 274 U.S. 501, 515-16 (1927) (Brandeis & Holmes,
JJ., concurring) (President "may direct any revenue cutter to cruise in
any waters in order to perform any duty of the service"); Commonwealth
of Massachusetts v. Laird, 451 F.2d 26, 32 (1st Cir. 1971) (the
President has "power as Commander-in-Chief to station forces abroad");
Ex parte Vallandigham, 28 F.Cas. 874, 922 (C.C.S.D. Ohio 1863) (No.
16,816) (in acting "under this power where there is no express
legislative declaration, the president is guided solely by his own
judgment and discretion"); Authority to Use United States Military
Forces in Somalia, 16 Op. O.L.C. 6,6 (1992) (Barr, A.G.).
3. As Alexander Hamilton explained
in The Federalist No. 74, "[o]f all the cares or concerns of government,
the direction of war most peculiarly demands those qualities which
distinguish the exercise of power by a single hand." The Federalist No.
74, at 500 (Alexander Hamilton) (Jacob E. Cooke ed., 1961). And James
Iredell (later an Associate Justice of the Supreme Court) argued in the
North Carolina Ratifying Convention that "[f]rom the nature of the
thing, the command of armies ought to be delegated to one person only.
The secrecy, despatch, and decision, which are necessary in military
operations, can only be expected from one person." Debate in the North
Carolina Ratifying Convention, in 4 Jonathan Elliot, The Debates in the
Several State Conventions on the Adoption of the Federal Constitution
107 (2d ed. Ayer Company, Publishers, Inc. 1987) (1888). See also 3
Joseph Story, Commentaries on the Constitution § 1485, at 341 (1833) (in
military matters, "[u]nity of plan, promptitude, activity, and decision,
are indispensable to success; and these can scarcely exist, except when
a single magistrate is entrusted exclusively with the power").
4. The Ninth Circuit has reserved
the question of whether the "primary purpose" test is too strict. United
States v. Sarkissian, 841 F.2d 959, 964 (9th Cir. 1988).
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