Foreign Intelligence Surveillance Act (FISA) Part 2 (podcast transcript)
HEALEY: I'm back with Jim McAdams to continue our discussion of the Foreign Intelligence Surveillance Act. In Part One of our podcast, we discussed the purposes for which FISA is used. Now let’s talk about who uses it. Since FISA is used to gather foreign intelligence information, it sounds like something that agencies such as the CIA and the National Security Agency would use. Why is it important for law enforcement officers working in the United States to learn about FISA?
McADAMS: Actually, the FBI is the primary agency that seeks FISC approval under FISA; also, the NSA. As we discussed earlier, surveillance under FISA is being conducted in the United States. It is important for all law enforcement officers to know about FISA because FISA wiretaps and searches often result in the acquisition of evidence of a crime.
HEALEY: We’ve noted that FISA is used for national security purposes. It seemed like FISA was meant to be separate from criminal law enforcement. Now you’re saying that a foreign intelligence investigation may uncover criminal activity and, if it does, the people who commit the crimes may be prosecuted?
McADAMS: Absolutely. There are two ways in which foreign intelligence investigations may result in criminal prosecution. First, foreign intelligence investigations may overlap with criminal investigations. For example, I am aware of a case a decade or more ago where a FISA surveillance recorded the two individuals who were the targets of the surveillance as they murdered their daughter. The FISA surveillance was found to be lawful, so as long as certain procedures were followed and the defendants were notified, the government could use the FISA-obtained information at the murder trial.
HEALEY: So you’re saying that evidence of a domestic crime, lawfully acquired from a FISA surveillance or search, may be used in a criminal prosecution regardless of whether agents expected to learn about the crime?
McADAMS: That’s correct. In some respects, it’s similar to plain view. The plain view doctrine states that if an officer is lawfully on the premises and sees evidence of a crime, the officer can investigate, even if that evidence has nothing to do with the officer’s reason for being there. Similarly, if agents lawfully conducting FISA surveillance discover evidence of a crime, they may use it to prosecute for that offense. It does not matter whether they thought they would hear evidence of the crime or not.
HEALEY: You mentioned that there’s another way that a foreign intelligence investigation can result in a criminal prosecution?
McADAMS: Yes. FISA targets may be prosecuted for crimes that are related to national security investigations. For example, member of international terrorist groups have been prosecuted for conspiring to manufacture firearms and for providing material support to terrorists. Other FISA targets have been convicted of crimes ranging from unlawfully obtaining citizenship to espionage. In recent history, the line between criminal activities and those constituting foreign intelligence or counter intelligence has blurred. Our government has an interest both in prosecuting those who engage in terrorist acts against our country and its residents as well as gathering intelligence about those persons and their activities that can be used to devised ways to protect us from such activities. FISA can be a useful tool in both regards, to facilitate the collection of foreign intelligence and counter intelligence and, where approved by the Attorney General, to facilitate a criminal prosecution with evidence obtained under FISA.
HEALEY: That’s important to know. So law enforcement officers may encounter FISA-related issues. If FISA wiretaps or searches produce evidence of a crime, officers may be asked to open a criminal investigation. The crime may or may not be related to national security matters.
McADAMS: Right. Officers may be asked to develop a case for trial that involves FISA evidence. Keep in mind, though, that a prosecution does not necessarily result from a national security investigation. And until fairly recently, intelligence agents and law enforcement officers did not share information.
HEALEY: I seem to recall something called “The Wall” which prevented cooperation between the intelligence and law enforcement communities. Can you explain that?
McADAMS: I wouldn’t go so far as to say that “the wall” prevented cooperation between those two communities. That said, few would deny that it hampered such cooperation. The section at DOJ responsible for submitting FISA applications to the FISC is called Office of Intelligence Policy and Review. In seeking Court authority for a wiretap or search under FISA, those attorneys would aver to the Court that the primary purpose of the wiretap or search was to acquire foreign intelligence or foreign counterintelligence information. The reason behind that was to ensure that FISA, with its lower legal thresholds, was not used in a criminal case to circumvent the more strenuous requirements of Title III and Rule 41, the authorities for criminal wire taps and search warrants, respectively. The USA Patriot Act makes it makes clear that any FISA wiretap or search that has as a significant purpose the collection of FI or FCI may also be used to collect information for use in a criminal prosecution. A year or so after the USA Patriot Act was signed into law, the appellate branch of the FISC held that FISA does not require that the purpose of a wiretap or search under its provisions be primarily to collect FI or FCI, merely that a significant purpose of such actions be for those purposes. Thus, “the wall” came tumbling down and that impediment to information sharing, real or imagined, was removed. As the result, while FISA may not be used to investigate ordinary crimes, it may and should be used as an investigative tool in criminal cases that involve activities that traditionally have been associated with intelligence and counter intelligence investigations, for example, espionage and activities by non-domestic terrorist groups.
HEALEY: To summarize, you’re saying that FISA information can be shared, and used for all lawful purposes, such as prosecution?
McADAMS: Yes, as long as certain requirements are met. The Attorney General must approve the use of any FISA information in a criminal matter, and the target of the surveillance or search must receive notice that the government intends to use the information. Assuming that approval is given, however, such evidence can be quite useful to local criminal prosecutions.
HEALEY: What is the likelihood that local law enforcement officers will ever have to deal with the Foreign Intelligence Surveillance Act?
McADAMS: Well certainly they won’t encounter these issues everyday. On the other hand, in this post 9/11 world, all law enforcement agencies, federal and local alike, must be vigilant for terrorist activities undertaken or planned by foreign terrorist groups or individuals. In some instances, a criminal investigation may result and FISA-obtained information may serve as valuable evidence in that prosecution. In other instances, that information may serve as the basis for obtaining FISA warrants. Thus, it is important that as many law enforcement officers as possible have at least a passing knowledge of FISA.
HEALEY: We’ve learned a lot about the Foreign Intelligence Surveillance Act today, which should help officers deal with FISA issues that they encounter. Thank you, Mr. McADAMS.