Does (Should) the Patriot Act Raze (or Raise) the Wall between Foreign Intelligence and Criminal Law Enforcement?
116 Pages Posted: 25 Aug 2004
Date Written: August 22, 2004
Abstract
This article analyzes the statutory foundation of "the wall" between foreign intelligence and criminal law enforcement. The wall arose from case law interpreting the Foreign Intelligence Surveillance Act of 1978 (FISA). The case law held that the government cannot conduct electronic surveillance under the FISA for the "primary purpose" of investigating and prosecuting crime. The Department of Justice adopted procedures to implement the primary purpose test. Those procedures came to be known as "the wall" and came to be cited as one factor for the United States' failure to prevent the 9/11 terrorist attacks. After 9/11, Congress amended the FISA in the Patriot Act to eliminate the primary purpose test and thereby, supposedly, tear down the wall. According to the recent decision of the Foreign Intelligence Surveillance Court of Review ("FISA Court of Review"), however, the Patriot Act actually created a statutory wall between foreign intelligence and law enforcement that did not exist before. This article concludes that both the "primary purpose" case law and the FISA Court of Review have misinterpreted the FISA. The original FISA did not impose a primary purpose test, but it did permit the government to use FISA surveillance to investigate and prosecute crime only if the government intended the prosecution to serve one or more of five foreign intelligence purposes identified in the FISA. To ensure that the government does not use FISA surveillance for prosecution as an end in itself, courts can review the government's intended use of information sought by FISA surveillance. The Patriot Act confirms the courts' authority to conduct such review, but it also relaxes the standard of judicial review associated with the primary purpose test.
Keywords: Patriot act, electronic surveillance, national security, foreign intelligence, criminal law, international terrorism
JEL Classification: K14
Suggested Citation: Suggested Citation