310 F.3d 717 (Foreign Int.Surv.Ct.Rev. 2002), 02-001, In re Sealed Case

Docket Nº:02-001, 02-002.
Citation:310 F.3d 717
Party Name:In re: SEALED CASE
Case Date:November 18, 2002
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit

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310 F.3d 717 (Foreign Int.Surv.Ct.Rev. 2002)


Nos. 02-001, 02-002.

United States Foreign Intelligence Surveillance Court of Review.

United States Court of Appeals, Federal Circuit

November 18, 2002

Argued Sept. 9, 2002.

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[Copyrighted Material Omitted]

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Theodore B. Olson, Solicitor General, argued the cause for appellant the United States, with whom John Ashcroft, Attorney General, Larry D. Thompson, Deputy Attorney General, David S. Kris, Associate Deputy Attorney General, James A. Baker, Counsel for Intelligence Policy, and Jonathan L. Marcus, Attorney Advisor, were on the briefs.

Ann Beeson, Jameel Jaffer, Steven R. Shapiro, for amicus curiae American Civil Liberties Union, with whom James X. Dempsey for Center for Democracy and Technology, Kate Martin for Center for National Security Studies, David L. Sobel for Electronic Privacy Information Center, and Lee Tien for Electronic Frontier Foundation, were on the brief.

John D. Cline, Zachary A. Ives, and Joshua Dratel, for amicus curiae National Association of Criminal Defense Lawyers.

Before: GUY, Senior Circuit Judge, Presiding; SILBERMAN and LEAVY, Senior Circuit Judges.



This is the first appeal from the Foreign Intelligence Surveillance Court to the Court of Review since the passage of the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. §§ 1801-1862 (West 1991 and Supp.2002), in 1978. The appeal is brought by the United States from a FISA court surveillance order which imposed certain restrictions on the government. Since the government is the only party to FISA proceedings, we have accepted briefs filed by the American Civil Liberties Union (ACLU)1 and the National Association of Criminal Defense Lawyers (NACDL) as amici curiae.

Not surprisingly this case raises important questions of statutory interpretation, and constitutionality. After a careful review of the briefs filed by the government and amici, we conclude that FISA, as amended by the Patriot Act,2 supports the

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government's position, and that the restrictions imposed by the FISA court are not required by FISA or the Constitution. We therefore remand for further proceedings in accordance with this opinion.


The court's decision from which the government appeals imposed certain requirements and limitations accompanying an order authorizing electronic surveillance of an "agent of a foreign power" as defined in FISA. There is no disagreement between the government and the FISA court as to the propriety of the electronic surveillance; the court found that the government had shown probable cause to believe that the target is an agent of a foreign power and otherwise met the basic requirements of FISA. The government's application for a surveillance order contains detailed information to support its contention that the target, who is a United States person, is aiding, abetting, or conspiring with others in international terrorism. [ ]3 The FISA court authorized the surveillance, but imposed certain restrictions, which the government contends are neither mandated nor authorized by FISA. Particularly, the court ordered that

law enforcement officials shall not make recommendations to intelligence officials concerning the initiation, operation, continuation or expansion of FISA searches or surveillances. Additionally, the FBI and the Criminal Division [of the Department of Justice] shall ensure that law enforcement officials do not direct or control the use of the FISA procedures to enhance criminal prosecution, and that advice intended to preserve the option of a criminal prosecution does not inadvertently result in the Criminal Division's directing or controlling the investigation using FISA searches and surveillances toward law enforcement objectives.

To ensure the Justice Department followed these strictures the court also fashioned what the government refers to as a "chaperone requirement"; that a unit of the Justice Department, the Office of Intelligence Policy and Review (OIPR) (composed of 31 lawyers and 25 support staff), "be invited" to all meetings between the FBI and the Criminal Division involving consultations for the purpose of coordinating efforts "to investigate or protect against foreign attack or other grave hostile acts, sabotage, international terrorism, or clandestine intelligence activities by foreign powers or their agents." If representatives of OIPR are unable to attend such meetings, "OIPR shall be apprized of the substance of the meetings forthwith in writing so that the Court may be notified at the earliest opportunity."

These restrictions are not original to the order appealed.4 They were actually set forth in an opinion written by the former Presiding Judge of the FISA court on May 17 of this year. But since that opinion did

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not accompany an order conditioning an approval of an electronic surveillance application it was not appealed. It is, however, the basic decision before us and it is its rationale that the government challenges. The opinion was issued after an oral argument before all of the then-serving FISA district judges and clearly represents the views of all those judges.5

We think it fair to say, however, that the May 17 opinion of the FISA court does not clearly set forth the basis for its decision. It appears to proceed from the assumption that FISA constructed a barrier between counterintelligence/intelligence officials and law enforcement officers in the Executive Branch—indeed, it uses the word "wall" popularized by certain commentators (and journalists) to describe that supposed barrier.

The "wall" emerges from the court's implicit interpretation of FISA. The court apparently believes it can approve applications for electronic surveillance only if the government's objective is not primarily directed toward criminal prosecution of the foreign agents for their foreign intelligence activity. But the court neither refers to any FISA language supporting that view, nor does it reference the Patriot Act amendments, which the government contends specifically altered FISA to make clear that an application could be obtained even if criminal prosecution is the primary counter mechanism.

Instead the court relied for its imposition of the disputed restrictions on its statutory authority to approve "minimization procedures" designed to prevent the acquisition, retention, and dissemination within the government of material gathered in an electronic surveillance that is unnecessary to the government's need for foreign intelligence information. 50 U.S.C. § 1801(h).


This court has authority "to review the denial of any application" under FISA. Id. § 1803(b). The FISA court's order is styled as a grant of the application "as modified." It seems obvious, however, that the FISA court's order actually denied the application to the extent it rejected a significant portion of the government's proposed minimization procedures and imposed restrictions on Department of Justice investigations that the government opposes. Indeed, the FISA court was clear in rejecting a portion of the application. Under these circumstances, we have jurisdiction to review the FISA court's order; to conclude otherwise would elevate form over substance and deprive the government of judicial review of the minimization procedures imposed by the FISA court. See Mobile Comm. Corp. v. FCC, 77 F.3d 1399, 1403-04 (D.C. Cir. ) (grant of station license subject to condition that is unacceptable to applicant is subject to judicial review under statute that permits such review when application for license is denied), cert. denied, 519 U.S. 823, 117 S.Ct. 81, 136 L.Ed.2d 38 (1996).


The government makes two main arguments. The first, it must be noted, was not presented to the FISA court; indeed, insofar as we can determine it has never previously been advanced either before a court or Congress.6 That argument

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is that the supposed pre-Patriot Act limitation in FISA that restricts the government's intention to use foreign intelligence information in criminal prosecutions is an illusion; it finds no support in either the language of FISA or its legislative history. The government does recognize that several courts of appeals, while upholding the use of FISA surveillances, have opined that FISA may be used only if the government's primary purpose in pursuing foreign intelligence information is not criminal prosecution, but the government argues that those decisions, which did not carefully analyze the statute, were incorrect in their statements, if not incorrect in their holdings.

Alternatively, the government contends that even if the primary purpose test was a legitimate construction of FISA prior to the passage of the Patriot Act, that Act's amendments to FISA eliminate that concept. And as a corollary, the government insists the FISA court's construction of the minimization procedures is far off the mark both because it is a misconstruction of those provisions per se, as well as an end run around the specific amendments in the Patriot Act designed to deal with the real issue underlying this case. The government, moreover, contends that the FISA court's restrictions, which the court described as minimization procedures, are so intrusive into the operation of the Department of Justice as to exceed the constitutional authority of Article III judges.

The government's brief, and its supplementary brief requested by this court, also set forth its view that the primary purpose test is not required by the Fourth Amendment. The ACLU and NACDL argue, inter alia, the contrary; that the statutes are unconstitutional unless they are construed as prohibiting the government from obtaining approval...

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