Foreign intelligence information

• Pages: 83-84

83

international law update Volume 17, October–December 2011

© 2012 Transnational Law Associates, LLC. All rights reserved. ISSN 1089-5450, ISSN 1943-1287 (on-line) | www.internationallawupdate.com

FOREIGN

INTELLIGENCE

INFORMATION

F  F I

S A    

F A, T C 

    

 

A group of American citizens and resident

aliens conspired to commit violent acts against the

United States military in New Jersey, Pennsylvania,

and Delaware in furtherance of violent jihad. After

becoming known by the FBI, two informants

inltrated the group and began recording discussions

among the members regarding their plan to attack

the military bases over the course of a year. e FBI

obtained footage of the group members purchasing

rearms to be used during the attack.

Once the members were arrested, the FBI

seized evidence of videos depicting violent jihadist

activities, video lectures advocating violent jihad,

weapons, the location of their shooting range in

the Poconos, their surveillance and research data

collected concerning their various potential targets,

and a map of the United States Army Base at Fort

Dix to use in planning and coordinating an attack.

e members admired the September 11

hijackers, Osama Bin Laden, and al Qaeda in

Iraq. ey trained in the Poconos in accordance

with the violent jihadist videos they watched.

ey made detailed plans about how they would

execute their attacks against the military bases.

All of this information was used as evidence in

charging the members with various counts of

conspiracy to commit murder and gun possession.

e Defendants were convicted, but appealed their

convictions by arguing that the government relied

on evidence obtained by the Foreign Intelligence

Surveillance Act (“FISA”), 50 U.S.C. § 1801 et

seq., an Act they contend is in violation of the

Fourth Amendment.

e U.S. Court of Appeals for the ird Circuit

rejects the Defendants’ arguments and arms their

convictions. Specically, the Defendants argue that

FISA, as amended by the Patriot Act, includes a

signicant purpose test that does not appropriately

balance individual privacy interests against the

government’s interests in foreign intelligence

gathering. ey also argue that FISA violates the

Fourth Amendment in that it allows searches and

seizure without requiring probable cause that a

crime is being committed. FISA, as revised by the

Patriot Act, requires that a national security ocer

certify that a signicant purpose of the surveillance

is to obtain foreign intelligence information. With

regard to the Fourth Amendment, the Court states,

“the critical Fourth Amendment requirement, for

purposes of this case, is that the statutory standard

for obtaining a warrant must be reasonable.” [Slip

op. 19] ough the Supreme Court has not dealt

with the reasonableness standard under FISA, the

Court specically suggests that dierent probable

cause standards for intelligence surveillance “may

be compatible with the Fourth Amendment.” [Slip

op. 21]

In determining whether FISA’s signicant

purpose standard is reasonable given the

government’s interest in collecting foreign

intelligence information, the Court then evaluates

the Fourth Amendment as it relates to foreign

intelligence generally. e Supreme Court stated

in United States v. U.S. District Court (Keith),

407 U.S. 297 (1972), that “Congress may wish

to consider protective standards for domestic

security surveillance warrants that dier from those

prescribed in ordinary criminal cases.” [Slip op. 22]

Since Keith, other courts “almost uniformly

have concluded that the important national interest

in foreign intelligence gathering justies electronic

surveillance without prior judicial review, creating a

sort of foreign intelligence exception to the Fourth

Amendment’s warrant requirement.” [Slip op. 23]

“Given the prevailing pre-FISA conclusion

that the executive branch could conduct electronic

surveillance for foreign intelligence purposes

without a warrant, it was perhaps predictable that

the courts of appeals that have reviewed FISA,

both before and since the Patriot Act amendments,

all would conclude that FISA’s standards and

procedures for authorizing foreign intelligence