How the Anti-Terrorism Bill Enables Law Enforcement to Use Intelligence Authorities to Circumvent the Privacy Protections Afforded in Criminal Cases

The final version of the anti-terrorism legislation, the Uniting and Strengthening America By Providing Appropriate Tools Required To Intercept and Obstruct Terrorism (H.R. 3162, the “USA PATRIOT Act,”) would extend the authority of the FBI to spy on Americans for “intelligence” purposes, as opposed to investigating criminal activity. This authority seems designed to circumvent normal criminal procedures and the privacy protections that are built into those procedures. Section 218 of the USA PATRIOT Act would amend the Foreign Intelligence Surveillance Act (“FISA,” 50 U.S.C. 1801 et seq.) so that the FBI could secretly conduct a physical search or wiretap primarily to obtain evidence of crime without proving probable cause of crime. Intelligence authority would suffice, even when the person whose home the FBI breaks into, or whose telephone it taps, is an American. Section 215 of the USA PATRIOT Act would grant FBI agents across the country breathtaking authority to obtain an order from the FISA court or any federal magistrate requiring any person or business to produce any books, records, documents or items. The judge exercises no discretion: he must issue the order upon receipt of the FBI application asserting that the FBI seeks the records for a foreign intelligence investigation.

The FBI has a sad history of abusing broad foreign intelligence investigative authority. It has investigated people because of their ethnic or racial background, or because of their political viewpoint. For example, during the late 1960’s and early 1970’s it conducted the COINTELPRO investigation, an effort to spy upon and disrupt the anti-Vietnam War and pro-civil rights movements. During the 1980’s, the FBI launched a 27-month “intelligence” investigation of the Committee In Solidarity With the People of El Salvador because its members opposed U.S. policy of aiding repressive regimes in Central America. CISPES’s political activity – protected by the First Amendment – became the subject of a nationwide intensive investigation. The Attorney General Guidelines that govern FBI conduct of this and other foreign intelligence investigations are largely secret, and did not prevent this abuse. The new intelligence surveillance authorities authorized by the USA PATRIOT Act may well trigger the same kinds of conduct.

Evading the Probable Cause Requirement of the Fourth Amendment
The Fourth Amendment to the Constitution requires that before the government conducts an invasive search to find evidence of crime, it must prove to a judicial officer that it has probable cause of crime. This requirement helps ensure that wiretaps and search warrants are applied only to those likely to be involved in criminal activity, and not to others. In addition, FISA gives the FBI the authority to conduct secret physical searches and wiretaps to obtain “foreign intelligence information.” 1 FISA searches are not conditioned upon a showing of probable cause of crime. Though notice to the target is the general rule for physical searches in criminal cases, FISA physical searches are “black bag jobs.” Law enforcement agents secretly break into a home or business and conduct a search without notice. Indeed, the party whose privacy was compromised is never informed unless there is a later criminal prosecution. In such prosecutions, the target of FISA surveillance cannot obtain discovery of the FISA court order application because it is secret, and therefore cannot effectively challenge a search or wiretap conducted illegally. In contrast, a defendant whose home is searched or conversations seized under the government’s criminal investigative authority can obtain a copy of the warrant or court order application, and challenge the search if there are defects.

Congress was careful when granting this authority to search for intelligence reasons to ensure that it would not be used as an end run around the probable cause requirement. It required that the primary purpose of the search or wiretap be to gather foreign intelligence. If the primary purpose of surveillance is a criminal investigation, the FBI must have probable cause of crime.

Section 218 turns this concept upside down. It permits the FBI to conduct a secret search or to secretly record telephone conversations for the purpose of investigating crime even though the FBI does not have probable cause of crime. The section authorizes unconstitutional activity — searches and wiretaps in non-emergency circumstances — for criminal activity with no showing of probable cause of crime.

This provision is unnecessary. Evidence gathered in intelligence wiretaps is now often admissible in criminal prosecutions. However, courts will exclude the evidence gathered from surveillance conducted under Section 218 because the probable cause of crime requirement was not met for a search conducted primarily to gather evidence of crime. As a result of this unnecessary extension of intelligence gathering power, the terrorist could go free when evidence about his activity is suppressed in a criminal case.

The fact that Section 218 allows circumvention of the probable cause of crime requirement only when intelligence surveillance is “a significant purpose” of the wiretap or physical search does not change this reality. Investigation of criminal activity cannot be the primary purpose of FISA surveillance because if it is, FISA is being used as an end-run around the Fourth Amendment. U.S. v. Johnson, 952 F.2d 565 (1st Cir. 1991), cert. denied 506 U.S. 816 (1991).

The undated letter the Department of Justice sent to the chairmen and ranking members of the House and Senate Judiciary Committees to defend the constitutionality of Section 218 is based on the astounding assertion that the Executive Branch has the inherent authority to engage in warrantless counter-intelligence searches. Daniel Bryant, Assistant Attorney General for the Department of Justice wrote:

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.

The President is not above the law and the Constitution. The means the Executive uses to conduct searches and electronic surveillance are constrained by the Constitution. This assertion of power was rejected by Congress when Congress enacted FISA, and should be rejected today. Under FISA, intelligence surveillance must be authorized by the FISA court, which consists of judges appointed under Article III of the Constitution. The DOJ also argues that since foreign intelligence often relates to people who are not Americans, the President has a free hand in conducting surveillance. However, Section 218 does not apply only to non-citizens; this power grab will sweep in Americans as well.

In its fifteen-page letter, the Department of Justice fails to cite even one instance since enactment of FISA in which a court has admitted in a criminal case evidence gathered from a FISA search conducted primarily for criminal purposes. In fact, it relies heavily on U.S. v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980) — in which the court upheld electronic surveillance without probable cause of a foreign government’s agent precisely because the search was conducted primarily for intelligence, as opposed to criminal, purposes. The court found that: “?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.” 629 F.2d at 915.

If Section 218 becomes law, Americans who oppose U.S. policies and who are believed to have ties to foreign powers could find their homes broken into and their telephones tapped. Though the government would be searching primarily for evidence of crime, the FBI would secretly conduct these searches and record these conversations without showing probable cause of crime to a judge.

Evading the Requirement of Evidence of Crime When Americans Are To Be Investigated
Section 215 of the USA PATRIOT Act would grant FBI agents across the country breathtaking authority to obtain an order from the FISA court or any federal magistrate requiring any person or business to produce any books, records, documents or items. The judge exercises no discretion: he must issue the order upon receipt of the FBI application asserting that it seeks the records in connection with a foreign intelligence investigation, or an investigation to protect against international terrorism or clandestine intelligence activities. This information can include extremely sensitive information such as: medical records, mental health records, financial records, video rental records, fingerprints, DNA samples from a person’s hair, employment records, records of employment-based drug testing, and immigration records maintained by non-profit agencies.

Under current law, FBI agents acting with a judicial or grand jury subpoena issued in connection with a criminal investigation can obtain access to much of this information. Privacy statutes and regulations — such as the Right to Financial Privacy Act — protect some of this information, and require certain safeguards such as notice. Section 215 would trump many of these legislative schemes that were carefully crafted to protect sensitive information. It explicitly bars notice to the party whose records are being disclosed, and unlike current law, does not require that law enforcement be conducting a criminal investigation.

The FBI already has authority to seek such orders to require airlines, car rental companies and bus companies, and those who maintain storage facilities, to turn over information for foreign intelligence purposes. 18 U.S.C. 1861-3. However, it can use its intelligence gathering authority to obtain this information only when there are “specific and articulable facts giving reason to believe that the person to whom the records pertain is a foreign power or an agent of a foreign power.” 18 U.S.C. 1862(a)(b)(2)(B). The agent of a foreign power requirement protects most Americans from this form of intelligence surveillance.2 Section 215 would eliminate the requirement that the records pertain to an agent of a foreign power and would grant the FBI access to all documents maintained by all businesses, not just those maintained by travel-related businesses. Moreover, Section 215 would extend access not only to documents, but also to things.

This broad new authority threatens to usher in a new age of investigation of Americans based on their political activities. While section 215 bars such investigation of Americans solely upon the basis of activity protected by the First Amendment, it permits such investigation based on First Amendment activity tied to other conduct that relates to international terrorism or clandestine intelligence activities. Similar ties were used to justify both the COINTELPRO the CISPES investigations.

ENDNOTES

1 – “Foreign intelligence information” is information of two kinds: (a) any information that relates to, and if it concerns a U.S. citizen or lawful permanent resident, is necessary to, the ability of the U.S. to protect against hostile acts of foreign powers or their agents, sabotage or international terrorism by such persons, or secret intelligence activities by such persons; and (b) information with respect to a foreign power that relates to, and if it concerns a U.S. citizen or lawful permanent resident, is necessary to, the national defense, security, or the conduct of foreign affairs of the U.S. 18 U.S.C. 1801(d).

2 – An American is not an “agent of a foreign power” unless he or she knowingly: engages in clandestine intelligence gathering activities for a foreign power which may violate the law, engages in sabotage or international terrorism on behalf of a foreign power, enters the U.S. under a false identity for a foreign power (or assumes such identity while in the U.S.), or helps others do the same.

Last Updated – October 23, 2001