IMPLEMENTATION OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP86B00338R000200330014-1
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 32
• Document Creation Date: December 21, 2016
• Document Release Date: September 15, 2008
• Sequence Number: 14
• Publication Date: May 9, 1984
• Content Type: REPORT

ILLEGIB
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Union Calendar No. 424
98TH CONGRESS l HOUSE OF REPRESENTATIVES l R$roRT
2d Session J l 98-738
IMPLEMENTATION OF THE FOREIGN
INTELLIGENCE SURVEILLANCE ACT
REPORT
together with
DISSENTING VIEWS
BY THE
PERMANENT SELECT COMMITTEE
ON INTELLIGENCE
SECTION 108(b) OF THE FOREIGN INTELLIGENCE
SURVEILLANCE ACT, 92 STAT. 1783, 50 U.S.C 1808(b)
MAY 9, 1984.-Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
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HOUSE OF REPRESENTATIVES,
PERMANENT SELECT COMMITTEE ON INTELLIGENCE,
Hon. THOMAS P. O'NEILL, Jr.,
Speaker of the House,
Washington, D.C.
Washington, D.C., May 9, 1984.
DEAR MR. SPEAKER: On behalf of the Permanent Select Commit-
tee on Intelligence and pursuant to section 108(b) of the Foreign In-
telligence Surveillance Act, 92 Stat. 1783, 50 U.S.C. 1808(b), I
submit a report concerning the implementation of this Act. The
Committee recommends that the Act should be permitted to contin-
ue in effect without amendment.
With every good wish, I am,
Sincerely yours,
EDWARD P. BOLAND, Chairman.
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Union Calendar No. 424
98TH CONGRESS I
2d Session
REPORT
98-738
IMPLEMENTATION OF THE FOREIGN INTELLIGENCE
SURVEILLANCE ACT
MAY 9, 1984.-Committed to the Committee of the Whole House on the State of the
Union and ordered to be printed
Mr. BOLAND, from the Permanent Select Committee on
Intelligence, submitted the following
REPORT
together with
Dissenting Views
1. INTRODUCTION
The following report is submitted in fulfillment of the Commit-
tee's obligation under section 108(b) of the Foreign Intelligence Sur-
veillance Act (FISA) which reads as follows:
On or before each year after the effective date of this
Act and on the same day each year for four years thereaf-
ter, the Permanent Select Committee on Intelligence and
the Senate Select Committee on Intelligence shall report
respectively to the House of Representatives and the
Senate, concerning the implementation of this Act. Said
reports shall include but not be limited to an analysis and
recommendations concerning whether this Act should be
(1) amended, (2) repealed, or (3) permitted to continue in
effect without amendment.1
This is the fifth report filed by the Committee pursuant to sec-
tion 108(b) and, therefore, the last which is required by statute.
However, recognizing its special obligation to the House because of
the secrecy which must envelop foreign intelligence electronic sur-
' 92 Stat. 1783, 50 U.S.C. 1808(b).
31-WO
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HOUSE OF REPRESENTATIVES I
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veillance, the Committee will continue to issue an unclassified
annual report on the implementation of FISA.
II. IMPLEMENTATION
The foreign Intelligence Surveillance Act was signed into law by
President Carter on October 25, 1978, and became fully effective
August 16, 1979.2
The first complement of judges of the Foregin Intelligence Sur-
veillance Court (FISC) and the Foreign Intelligence Court of
Review was designated by the Chief Justice on May 16, 1979.3
The applicants for electronic surveillances under FISA are in
almost all cases the National Security Agency or the Federal
Bureau of Investigation. Targets of NSA surveillance are approved
by a committee consisting of representatives of the National Secu-
rity Council, the Director of Central Intelligence and the Secretar-
ies of State and Defense. The Attorney General is notified of the
Committee's approval. If FBI operational support is required, the
NSA requests it of the FBI Director in writing. Typically the actual
court application is prepared in the General Counsel's Office at
NSA using a format previously approved by the Office of Intelli-
gence Policy and Review (OIPR) of the Department of Justice. If
the application involves an unusual target or technique, the draft-
ing will be coordinated with OIPR. When the application is ready,
it is presented to the Secretary of Defense for his review and certi-
fication that the information sought is foreign intelligence and oth-
erwise satisfies the statutory certification requirements. 9a Once he
has made the certification, the application is forwarded to OIPR.
After OIPR review, it is presented to the Attorney General for ap-
proval of its submission to the Court.
FBI field offices initiate FBI requests for surveillances. These are
reviewed at FBI Headquarters and a memorandum is prepared
from an Assistant Director to the Department of Justice setting
forth the basis for the surveillance and requesting that an applica-
tion be prepared. Attorneys at OIPR review the memorandum to
determine whether it meets the statutory standard, with particular
attention to the probable cause requirements. They then prepare a
draft application which is returned to the FBI for review by intelli-
gence personnel and FBI attorneys. Once it has been signed by the
applicant agent and certified by the FBI Director, it is returned to
OIPR for final review. It is then sent to the Attorney General for
his approval of its submission to the Court.
On regularly scheduled Court days applications approved by the
Attorney General are delivered to the Clerk of the FISA Court,
with copies for the Court and the Court's legal adviser. They
review the application in chambers. When the Court convenes, the
applicant and the OIPR attorney who prepared the application
appear before the Court, answer any questions the Court may pose,
and swear to the accuracy of the application. If the Court is satis-
fied, it issues the order or orders prepared by the Executive Branch
which are appended to the application. The primary order consists
s See Section 301 of the Act, 50 U.S.C. 1801 note.
See Appendix A for the list of judges as of May 1, 1984.
See Section 104 of the Act.
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of the authorization for the applicant agency to conduct the sur-
veillance. There may, however, be secondary orders directed to
communications common carriers, landlords or others, instructing
them to render necessary assistance to the government. After the
Clerk has recorded the orders and affixed the seal of the Court, the
orders are returned to the applicant agency for execution.
While the judges of the Court have been designated from seven
different judicial circuits, the Court always sits in Washington,
D.C. Normally a judge is scheduled to sit one or two days, twice a
month, on a rotational basis. Applications requiring action in be-
tween scheduled Court days, usually those that arise unexpectedly,
are presented to one of two local judges who are members of the
Court. The bulk of the applications are pesented on regularly
scheduled court days.
In the approximately 5 years since the new statutory procedures
for foreign intelligence electronic surveillance within the United
States have been in effect, the Committee has received 10 written
reports on its implementation from the Attorney General.
It is through these written reports, which are classified, and
through regular discussions with the relevant executive branch
personnel, that the Committee has been able to obtain the informa-
tion necessary to perform effectively its oversight function in this
sensitive area.
Congressional oversight is particularly important in regard to
electronic surveillance performed under the Foreign Intelligence
Surveillance Act. In enacting FISA, the Congress concluded that
the necessary secrecy with which foreign intelligence activities
must be conducted justified establishing procedures for foreign in-
telligence electronic surveillance that differ from those which regu-
late electronic surveillance for law enforcement purposes.
These differences (see Appendix B) place a unique and heavy
burden on the two Intelligence Committees of the Congress to
ensure that the FISA is being interpreted and applied as intended,
that what was intended remains wise policy, and that probable
cause determinations are correct and consistent. This burden lies
with the Intelligence Committees because, unlike what obtains in
connection with law enforcement searches, the bench, the bar, the
press, and the public are not permitted, after the fact, to review or
comment on the decisions of the Foreign Intelligence Surveillance
Court.
The Committee has a duty to the Congress and the public to be
especially vigilant and thorough in its oversight of surveillances of
U.S. persons. Immediately prior to the enactment of FISA, there
existed, according to the testimony of Attorney General Bell, two
ongoing cases of electronic surveillance of U.S. persons in the
United States for foreign intelligence purposes. This number has
increased each year since the enactment of FISA.4
4The overwhelming number of FISA surveillances continue to be direted against non-U.S.
person targets.
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In the past, Members of the Committee have reviewed the full
text of a small number of U.S. person FISA Court order applica-
tions and the Committee staff has reviewed a small number of re-
dacted applications. In some instances, the redactions in the appli-
cations reviewed by staff have been so extensive as to reduce sig-
nificantly the utility of the review process.
Therefore, as noted above, the Committee has based its oversight
judgments largely on its review of the Attorney General's semian-
nual classified reports and on extensive discussion with officials of
the Department of Justice, Office of Intelligence Policy and Review,
the FBI, and the NSA, in whom the Committee continues to place
its trust and confidence.
However, effective oversight must be based on a more permanent
foundation than good working relationships. Members of Congress
and their staffs, and exectuive branch officials and their staffs,
come and go. Soon, few will remain who were present at the cre-
ation of FISA.
With the foregoing in mind, and with the continuing increase in
the use of the authority provided by FISA to electronically surveil
U.S. persons, and others, the Committee has concluded that its con-
tinued ability to state with confidence, as it has in the past, that
U.S. person surveillances are being conducted fully within the
letter and spirit of the law, must depend on a more thorough
review of applications. This will include a regular schedule of
review of a larger number unredacted applications by both Mem-
bers and a limited number of staff selected by the Committee. The
Committee expects the Department of Justice to cooperate in this
effort.
IV. STATISTICAL SUMMARY
Section 107 of the Foreign Intelligence Survellance Act provides
that:
In April of each year, the Attorney General shall trans-
mit to the Administrative Office of the United States
Courts and to Congress a report setting with respect to the
preceding calendar year-
(a) the total number of applications made for orders
and extensions of orders approving electronic surveil-
lance under this title; and
(b) the total number of such orders and extensions
either granted, modified, or denied.
On April 4, 1983, the Attorney General submitted the report re-
quired by section 107. The pertinent section of the report stated:
During calendar year 1982, 473 applications were made
for orders and extensions of orders approving electronic
surveillance under the Act. The United States Foreign
Intelligence Surveillance Court issued 475 orders granting
authority to the Government for the requested electronic
surveillances. No orders were entered which modified or
denied the requested authority.5
f The number of orders exceeds the number of applications for either of two reasons. A single
application may request authority to surveil more than one facility of the same foreign power.
Continued
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On March 6, 1984, the Attorney General submitted the report for
calendar year 1983. It notes 549 applications for orders and exten-
sion of orders, 549 orders issued by the court, and no modifications
or denials.
There has been a continuing increase in the number of FISA sur-
veillances since 1980, the first full year of FISA operation (see Ap-
pendix Q. While the Committee, for security reasons, cannot dis-
cuss the categories of surveillances with any specificity, it can be
noted that the significant increases in the number of surveillances
occur in the categories of foreign power and non-U.S. person agent
of foreign power surveillances, rather than in the U.S. person cate-
gory, although there has been an increase in the latter.
In addition, because surveillances of agents of foreign powers
must be renewed every 90 days, the calendar year number of appli-
cation figures may be misleading. For example, if the same agent
of a foreign power is continuously targeted for one year, there will
be at least three, and possibly four, applications for that year.
V. NATIONAL SECURITY AGENCY "WATCHLIST"
The first definition of electronic surveillance in FISA (section
101(fX1)) affects the use of NSA computer seletion technology to re-
trieve the international communications of a United States person
when that person is in the United States and NSA intentionally
targets that person. Targeting is accomplished by using a person's
name, or other unique identifier, to select that person s communi-
cations. This definition was specifically added to the Act to regu-
late an NSA program of the late sixties and early seventies which
was commonly referred to as "watchlisting."
NAS fully understands and abides by this provision. However, a
civil suit, Jabara v. Webster, 691 F.2d272 (6th Cir. 1982), in which
the plaintiff alleged that watchlisting occurred, appears to have
caused some confusion outside NSA as to the applicability of this
definition to NSA's monitoring of international communications.
NSA understands this definition to require a court order before it
searches through communications as they are collected for commu-
nications of a particular United States person when that person is
in the United States. This requirement applies to searches of previ-
ously collected communications while those communications reside
in data bases of unprocessed intercept. Once a communication is re-
trieved from such a data base and is used to develop an intelligence
report, the FISA no longer applies to the subsequent retrieval of
that intelligence report. It is NSA's practice to delete a United
States person's name from intelligence report; and as a practical
matter, it is not possible to retrieve NSA intelligence reports issued
since 1975 by the names of United States persons.
If the circumstances of the Jabara case occurred today, NSA
could seek an order from the Foreign Intelligence Surveillance
Court to select any international communications that the target
would send or receive after the request. If necessary, and after ob-
taining a court order, the NSA could review available, unprocessed
In such circumstances, more than one order results from one application. A single application
may also request authority to surveil one facility of a foreign power, by the use of different sur-
veillance techniques.
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intercept. Finally, the NAS could review its intelligence reports to
determine if any of the concerned the target; this review would not
require a court order.
VI. LITIGATION
Since the Committee's last report, the legality of FISA surveil-
lances has been upheld by a federal district court in three cases:
United States v. Kozibioukian, CR. 82-460 (C.D. Cal.); United States
v. Housepian, CR. 82-917 (C.D. Cal.); and United States v. Harper,
CR. 83-0770 (N.D. Cal). Two other cases are pending in which FISA
is an issue: United States v. Kostadinov, CR. 83-616 (S.D. N.Y.); and
United States v. Zehe, CR. 83-296 (D. Mass.).
There have been six instances since the inception of FISA in
which the target of a FISA surveillance has been prosecuted. Set
out at Appendix D is a statement of the Department of Justice's po-
sition (contained in a letter from Assistant Attorney General
McConnell to Representative Robert Kastenmeier, Chairman, Sub-
committee on Courts, Civil Liberties, and the Administration of
Justice, House Committee on the Judiciary) that a FISA surveil-
lance (in contrast to a law enforcement electronic surveillance
under Title III of the Omnibus Crime Control and Safe Streets Act)
may be employed, even when prosecution is contemplated, as long
as significant foreign intelligence information is sought.
While expressing no opinion at this time as to the legal correct-
ness of the Department's decision, the Committee is of the view
that, even if the Department's position is arguably supported by
the relevant legislative history, the wiser course is to utilize Title
III, rather than FISA, once prosecution is contemplated, unless ar-
ticulable reasons of national security dictate otherwise.
VII. MINIMIZATION
Central to the FISA scheme of authorizing electronic surveil-
lance within the United States for foreign intelligence purposes,
while assuring full protection for the privacy interests of U.S. per-
sons, is the "minimization" process.6
The minimization procedures mandated by FISA provide vital
safeguards because they regulate the acquisition, retention, and
dissemination of information about U.S. persons, including persons
who are not the authorized targets of surveillance. Section 101(h) of
FISA defines "minimization procedure" as:
(1) specific procedures, which shall be adopted by the At-
torney General, that are reasonably designed in light of
the purpose and technique of the particular surveillance to
minimize the acquisition and retention, and prohibit the
dissemination, of nonpublicly available information con-
cerning unconsenting United States persons consistent
with the need of the United States to obtain, produce, and
disseminate foreign intelligence information;
6 See Appendix E and Appendix F for the NSA and FBI minimization procedures. The proce-
dures provided in the Appendices have been subjected to security deletions which make no sub-
stantive difference.
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(2) procedures that require that nonpublicly available in-
formation, which is not foreign intelligence information, as
defined in subsection (eX1), shall not be disseminated in a
manner that identifies any United States person, without
such person's consent, unless such person's identity is nec-
essary to understand foreign intelligence information or
access its importance;
(3) notwithstanding paragraphs (1) and (2), procedures
that allow for the retention and dissemination of informa-
tion that is evidence of a crime which has been, is being,
or is about to be committed and that is to be retained or
disseminated for law enforcement purposes; and
(4) notwithstanding paragraphs (1), (2), and (3), with re-
spect to any electronic surveillance approved pursuant to
section 102(a), procedures that require that no contents of
any communication to which a United States person is a
party shall be disclosed, disseminated, or used for any pur-
pose or retained for longer than twenty-four hours unless
a court order under section 105 is obtained or unless the
Attorney General determines that the information indi-
cates a threat of death or serious bodily harm to any
person.
Because these procedures are such a significant element in the
production afforded by FISA, effective oversight of the minimiza-
tion process is crucial.'
The primary responsibility for conducting such oversight rests
with those agencies conducting surveillances (the NSA and the
FBI) and with the Department of Justice.
Policies and procedures in effect at NSA require that all persons
handling materials subject to FISA minimization procedures be
properly trained in those procedures. Minimization procedures are
taught in NSA training courses and stressed in on-the-job training.
Individual responsibility of NSA employees for compliance with the
procedures is set forth in appropriate NSA regulations and rein-
forced by periodic reminders issued by the Office of Personnel. Em-
ployees responsible for implementing procedures unique to FISA
operations are provided special training tailored to those proce-
dures prior to being granted access to the collected materials. The
training is conducted in part by the Office of General Counsel,
which also provides guidance and assistance in implementing FISA
operations. The Inspector General's Office conducts periodic inspec-
tions of those NSA elements which conduct FISA operations. The
inspection focuses on awareness of and compliance with minimiza-
tion procedures.
NSA's collection activities are directed at information concerning
the capabilities, intentions, and activities of foreign governments.
Therefore, in many cases, incidentally acquired information about
U.S. persons has no relevance to NSA's mission. When information
is relevant to foreign intelligence collection, NSA's procedures are
very restrictive. As a practical matter, they can be applied and ob-
a See generally, H. Schwartz, "Oversight of Minimization Compliance Under the Foreign Intel-
ligence Surveillance Act: How the Watchdogs Are Doing Their Jobs", 12 Rutgers L.J. 405 (1981).
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served without difficulty because there is less likelihood that for-
eign intelligence information that needs to be disseminated to ana-
lysts and policymakers will contain information concerning U.S.
persons.
Dissemination of information concerning United States persons
is strictly controlled and receives close scrutiny. When information
concerning United States persons is disseminated, it is usually
done without providing the person's identity. Government agencies
may request a deleted identity but must provide an explanation of
need for that identity. These requests are reviewed by several orga-
nizational echelons, including the NSA Office of General Counsel,
to assure that, in light of the explanation, NSA may release the
identity consistent with the criteria in the minimization proce-
dures. Such releases must be approved by the Deputy Director for
Operations, or if the dissemination is for law enforcement pur-
poses, by the Director of NSA.
The FBI is the domestic counterintelligence arm of the U.S. in-
telligence community. Thus, unlike NSA, its FISA targets often in-
volve U.S. persons and its minimization procedures are accordingly
geared to this greater degree of involvement with U.S. persons.
Minimization in regard to FBI conducted surveillance begins at
the earliest step of the interception process by the individuals who
actually listen to the surveillance contemporaneously or listen to
tapes of automatically acquired information. These individuals are
called surveillance monitors.
The monitors enter into a surveillance log book summaries of
those conversations that, in the opinion of the monitor, contain rel-
evant foreign intelligence information. Information that is not
logged is not retrievable at a later time. Information that is logged
must be both "foreign intelligence information" as defined in the
FISA, and relevant to the purpose of the surveillance. Monitors re-
ceive extensive training, both at FBI Headquarters and in the field,
on the minimization process. In addition, they are in constant con-
tact with the FBI Special Agent assigned to each surveillance.
Each Agent receives detailed instruction on the minimization proc-
ess and undergoes periodic in-service training. The case Agents are
thus in a position to advise the monitors both as to what is or is
not foreign intelligence information and on what foreign intelli-
gence information should be logged.
The surveillance logs are regularly forwarded to the case Agent
or to FBI Headquarters, depending on the circumstances. It is at
such a supervisory level that minimization of retention and dis-
semination, as set out in the procedures, is conducted.
The Office of Intelligence Policy and Review (OIPR) of the De-
partment of Justice oversees the minimization process engaged in
by the NSA and the FBI.
The NSA minimization procedures focus primarily on retention
and dissemination of information identifying U.S. persons. NSA re-
tains records of information disseminated and periodically (and in
all cases, at least once a year) attorneys from OIPR visit NSA to
review these records on a random selection basis. In unusual cases,
NSA attorneys consult with OIPR prior to a proposed dissemina-
tion where there is a question of compliance with the minimization
procedures.
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OIPR oversees the FBI's minimization process in a similar fash-
ion. OIPR attorneys visit the major FBI field offices and conduct a
detailed review of the surveillance logs. They also talk with the
surveillance monitors and supervisory personnel to determine
whether they understand the requirements or have identified par-
ticular problems or questions.
Should a violation of the minimization procedures occur by
either NSA or FBI, a complete report is made to the FISA Court,
the Attorney General, the President's Intelligence Oversight Board,
and the Senate and House Intelligence Committees.
The Foreign Intelligence Surveillance Court also has a vital role
to play in the oversight of minimization. In addition to deciding in
each case whether the minimization procedures attached to the ap-
plication meet the definition of minimization procedures contained
in FISA, the judge "may assess compliance with the minimization
procedures by reviewing the circumstances under which informa-
tion concerning United States persons was acquired, or disseminat-
ed." (Section 105(dX3) of FISA). This provision contemplates period-
ic examination by FISA judges of surveillance logs, intelligence dis-
seminations, or other material relevant to an assessment of compli-
ance with the minimization procedures.
The Senate and House Intelligence Committees, of course, also
oversee the minimization process. As with the other provisions of
the Act, this Committee has relied on the classified Attorney Gen-
eral reports and on extensive discussions with NSA, FBI, and OIPR
personnel to discharge its responsibilities in this area. Such discus-
sions have included staff communications with FBI surveillance
monitors.
VIII. RECOMMENDATIONS
In 1976, Attorney General Edward H. Levi, while testifying
before the Senate Select Committee on Intelligence on the proposed
Foreign Intelligence Surveillance Act, stated:
Enactment of the bill will, I believe, provide major as-
surance to the public that electronic surveillance will be
used in the United States for foreign intelligence purposes
pursuant to carefully drawn legislative standards and pro-
cedures. The bill insures accountability for official action.
It compels the Executive to scrutinize such action at regu-
lar intervals. And it requires independent review at a criti-
cal point by a detached and neutral magistrate.
In providing statutory standards and procedures to
govern the use of electronic surveillance for foreign intelli-
gence purposes in this country and in establishing critical
safeguards to protect individual rights, the bill also insures
that the President will be able to obtain information essen-
tial to protection of the Nation against foreign threats.
While guarding against abuses in the future, it succeeds, I
trust, in avoiding the kind of over reaction against abuses
of the past that focuses solely on these abuses, but is care-
H. Rept. 98-738 - 2
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less of other compelling interests. To go in that direction
would bring a new instability and peril.8
In 1978, Attorney General Griffin B. Bell testifying on the same
subject before this Committee, stated:
If enacted, the bill would stand as a significant monu-
ment to our national commitment to democratic control of
intelligence functions ...
As President Carter noted when he announced this bill,
"one of the most difficult tasks in a free society like our
own is the correlation between adequate intelligence to
guarantee our nation's security on the one hand, and the
preservation of basic human rights on the other." It is a
very delicate balance to strike, but one which is necessary
in our society. In my view this bill strikes the proper bal-
ance. It sacrifices neither our national security nor our
civil liberties, and assures that the dedicated and patriotic
men and women who serve this country in intelligence po-
sitions will have the affirmation of Congress that their ac-
tivities are proper and necessary.9
We have now had five years in which to observe in operation the
legislation these two distinguished Attorneys General worked so
hard to enact and about which they spoke so eloquently.
The Committee is of the opionion that FISA did, in fact, strike a
proper balance between the security of the Nation and the individ-
ual rights of its people, that FISA surveillances are being utilized
only to collect legitimate foreign intelligence information, that
such surveillances are being conducted well within the letter and
spirit of the Act, and that adherence to the substantive and proce-
dural safeguards contained in FISA has not adversely affected the
national intelligence mission.
The Committee recommends that the Act be permitted to contin-
ue in effect without amendment.
8 Electronic Surveillance Within the United States for Foreign Intelligence Purposes, Hearings
before the Subcommittee on Intelligence and the Rights of Americans of the Select Committee
on Intelligence, United States Senate, 94th Congress, 2nd Session (1976), Page 76.
9 Foreign Intelligence Electronic Surveillance, Hearings before the Subcommittee on Legisla-
tion of the Permanent Select Committee on Intelligence, House of Representatives, 95th Con-
gress, 2nd Session (1978), Page 7.
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APPENDIX A
Judges Designated by the Chief Justice of the United States Pur-
suant to Section 103 of the Foreign Intelligence Surveillance Act of
1978 (as of May 1, 1984).
FOREIGN INTELLIGENCE SURVEILLANCE COURT
John Lewis Smith, Jr., (presiding judge), U.S. District Court, Dis-
trict of Columbia.
Albert V. Bryan, Jr., U.S. District Court, Eastern District of Vir-
ginia.
Frederick B. Lacey, U.S. District Court, District of New Jersey.
William C. O'Kelley, U.S. District Court, Northern District of
Georgia.
Frederic A. Daugherty, U.S. District Courts, Northern, Eastern,
and Western Districts of Oklahoma.
Dudley B. Bonsal, U.S. District Court, Southern District of New
York.
James E. Noland, U.S. District Court, Southern District of Indi-
ana.
FOREIGN INTELLIGENCE SURVEILLANCE COURT REVIEW
A. Leon Higginbotham, Jr., (presiding judge), U.S. Court of Ap-
peals for the Third Circuit.
James E. Barrett, U.S. Court of Appeals for the Tenth Circuit.
John A. Field, Jr., U.S. Court of Appeals for the Fourth Circuit.
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COMPARISON WITH TITLE III WARRANTS
Although FISA is patterned after Title III of the Omnibus Crime
Control and Safe Streets Act of 1968, which authorizes and regu-
lates electronic surveillance for law enforcement purposes, there
are the following significant differences, among others:
Title III requires a finding of probable cause that the target "is
committing, has committed, or is about to commit" one of the enu-
merated offenses. FISA, for most U.S. person targets, requires a
finding of probable cause that certain intelligence activities, which
"may involve" a criminal violation, are being conducted on behalf
of a foreign power.
Title III warrants must be renewed every 30 days. FISA permits
suveillances of individuals for up to 90 days and of some foreign
powers for up to one year.
Title III requires that notice of the surveillance be given to the
target not more than 90 days after the termination of the surveil-
lance. FISA requires notice to the target only if evidence obtained
or derived from the surveillance is to be used in a criminal pros-
ecution of the target.
Title III warrants are issued by whichever of the 515 federal dis-
trict court judges has territorial jurisdiction over the site of the
surveillance. FISA warrants are issued by one of the seven federal
judges sitting on the FISC, each of whom has nationwide jurisdic-
tion.
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Number of FISA court orders
Calendar year:
Orders
1979
...........................................................................................................................
199
1980
...........................................................................................................................
819
1981
...........................................................................................................................
431
1982
...........................................................................................................................
475
1983
...........................................................................................................................
549
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APPENDIX D
U.S. DEPARTMENT OF JUSTICE,
OFFICE OF LEGISLATIVE AFFAIRS,
Washington, D. C., September 26, 1983.
Hon. ROBERT W. KASTENMEIER,
Chairman, Subcommittee on Courts, Civil Liberties and the Admin-
istration of Justice, Committee on the Judiciary, House of Rep-
resentatives, Washington, D.C.
DEAR MR. CHAIRMAN: In response to the questions attached to
your letter of August 17, 1983, concerning the Foreign Intelligence
Surveillance Act, we are forwarding the attached answers.
Please let us know if we can be of any further assistance regard-
ing this matter.
Sincerely,
ROBERT A. MCCONNELL,
Assistant Attorney General.
Attachment.
3. It is our view that the logic of United States v. Truong, 629
F.2d 908 (4th Cir. 1980) has little vitality after the enactment of the
Foreign Intelligence Surveillance Act. In Truong the Court held a
warrantless foreign intelligence electronic surveillance was lawful
only when the purpose of the surveillance was "primarily" for for-
eign intelligence purposes. In so holding the court recognized that,
in view of the warrantless nature of pre-FISA foreign intelligence
electronic surveillances, there was no opportunity for an impartial
magistrate to review the probable cause for a surveillance until
after the surveillance had been implemented and a party who has
been overheard challenged the legality of the surveillance in litiga-
tion. Under FISA the probable cause for a surveillance is reviewed
by a Federal District Court judge prior to implementation, at
which time the purpose of the surveillance is also reviewed-thus,
the Truong rationale would no longer apply.
Since the enactment of FISA, the two courts which have ad-
dressed the issue of whether the Truong primary purpose test still
applies in the context of a FISA surveillance appear to have
reached somewhat different conclusions. In United States v. Falvey,
540 F. Supp. 1306 (E.D.N.Y. 1982), Judge McLaughlin held that the
Truong primary purpose test no longer applied, since a FISA sur-
veillance is authorized by court order.
What the defendants steadfastly ignore, however, is that
in this case-unlike Truong-a court order was obtained
authorizing the surveillance. After the surveillance was
conducted in Truong (without a warrant), Congress enacted
FISA, imposing a warrant requirement to obtain foreign
intelligence information. See pp. 1312-1313, supra. An
(14)
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order authorizing the surveillance in this case was lawful-
ly obtained pursuant to FISA. See p. 1316. Accordingly, all
the relevant evidence derived therefrom will be admissible
at trial. [Footnote omitted.]
540 F. Supp. at 1314. In United States v. Megahey, 553 F. Supp.
1180 (E.D.N.Y. 1982), on the other hand, Judge Sifton implied (but
did not specifically hold) that the Truong test for warrantless for-
eign intelligence surveillance still applies to surveillances under
FISA. 553 F. Supp. at 1189. While we believe that the Falvey deci-
sion on the inapplicability of the Truong primary purpose test to
FISA surveillances is the correct one, we have invited the district
courts, which subsequent to the Megahey decision, were considering
the legality of FISA surveillances, to make the same analysis of the
FISA surveillance as was done by Judge Sifton in Megahey.
Accordingly, it is our view that even where the government may
be considering prosecuting the target for criminal violations discov-
ered in the counterintelligence investigation, the government may
continue to employ FISA rather than Title III where significant
foreign intelligence information is still being sought. Where no sig-
nificant intelligence interest remains in an investigation, FISA
should no longer be used. The determination of whether a signifi-
cant intelligence interest remains in a given case would continue to
be made by the Department of Justice in close consultation with
the intelligence agency.
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APPENDIX E
UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT,
WASHINGTON, D.C.
IN THE MATTER OF THE APPLICATION OF THE UNITED STATES FOR AN
ORDER AUTHORIZING ELECTRONIC SURVEILLANCES OF
(Docket Number
MINIMIZATION PROCEDURES
Pursuant to ? 101(h) of the Foreign Intelligence Surveillance Act
of 1978, the following procedures have been adopted by the Attor-
ney General, and shall be followed by the Federal Bureau of Inves-
tigation in implementing these electronic surveillance as ordered
by the Court:
Section 1-Applicability and scope
These procedures apply to the acquisition, retention, and dissemi-
nation of non-publicly available communications concerning uncon-
senting United States persons that is collected in the course of elec-
tronic surveillance directed at the communications of these agents
of a foreign power, consistent with the need of the United States to
obtain, produce, and disseminate foreign intelligence information.
These procedures also apply to non-United States persons only
where set forth hereinafter.
Section 2-Definitions
(a) Definitions set forth in ? 101 of the Foreign Intelligence Sur-
veillance Act, including the terms "foreign intelligence informa-
tion," "United States person," and others which may be used in
these procedures, shall apply to these procedures.
(b) As used herein "communications of a United States person"
includes all communications to which a United States person is a
party. "Communications concerning a United States person" in-
cludes all communications in which a United States person is dis-
cussed or mentioned, except that communications are not "commu-
nications concerning a United States person" if they reveal only
publicly available information about the person.
(c) When the citizenship status of a party to a communication
being surveilled is unknown, and no reasonable basis exists for con-
cluding that the party is not a United States person, it is presumed
that such party is a United States person.
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Section 3 -Acquisition
(a) Interception
The FBI may intercept all communications of or concerning
United States persons ... which are carried over communication
lines authorized by Court order.
(b) Verification
At the initiation of electronic surveillances the FBI shall verify
that the telephone communication line being intercepted is the
telephone line of the target....
(c) Recording
Electronic surveillances of the target . . . may either be moni-
tored contemporaneously; recorded automatically; or conducted by
a combination of both means.
(1) In the event that all communications are acquired by auto-
matic recording, the monitor of the automatically acquired tape
will employ the same principles of loping, indexing, and using the
information as if it had been acquired by a live monitor.
(2) FBI personnel who monitor the electronic surveillances con-
temporaneously or who monitor automatically acquired informa-
tion shall exercise reasonable judgment in determining whether
particular information intercepted must be minimized.
(3) A permanent written record or "log" shall be maintained by
personnel who contemporaneously monitor communications being
surveilled or who monitor automatically acquired information; pro-
vided that identities or communications of or concerning United
States persons that could not be foreign intelligence information or
are not evidence of a crime which has been, is being, or is about to
be committed may not be logged or summarized.
(e) Non pertinent Communications
(1) Communications of United States persons acquired in these
surveillances will be the subject of continuing analysis:
(a) to establish categories of communications that are not perti-
nent to the authorized purpose of the survillances;
(b) to eliminate communications in established categories from
further acquisiton; and
(c) to include any categories established for elimination of acqui-
sition in any future minimization procedures submitted to the
Court.
(2) The Attorney General, or his designee, shall periodically de-
termine that information concerning communications ... of or
concerning United States persons that is retained meets the re-
quirements of these procedures and the Foreign Intelligence Sur-
veillance Act.
Section 4-Internal Use and Retention
(a) Indexing
Logged identities of United States persons and communications
of or concerning United States persons may be indexed if such
identities or communications reasonably appear to be foreign intel-
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ligence information or are evidence of a crime which has been, is
being, or is about to be committed, and shall be recorded in the
Electronic Surveillance Index pursuant to Title 18, United States
Code, ? 3504 if it meets established indexing criteria for the index.
(b) Transcription, Duplication and Other Records
Communications ... of or concerning United States persons may
be transcribed or duplicated, and reports made of their contents
only for authorized foreign intelligence, foreign counterintelligence,
counter-sabotage and international terrorism, or law enforcement
purposes.
(c) Foreign Intelligence Information
Intercepted communications ... of or concerning United States
persons which contain foreign intelligence information as defined
in ? 1 may be used only in foreign counterintelligence investiga-
tions or for other authorized foreign intelligence or counter-sabo-
tage or international terrorism purposes. Foreign intelligence infor-
mation which is also evidence of a crime which has been, is being,
or is about to be committed may be used as provided in ? 4(d)
below.
(d) Evidence of Crime Not Otherwise Foreign Intelligence In-
formation
Intercepted communications ... of or concerning United States
persons, that is acquired incidental to the collection of foreign in-
telligence information and contains information that is evidence of
a crime which has been, is being, or is about to be committed, but
which is not otherwise foreign intelligence information, may be re-
tained or used only for the purposes of preventing the crime or en-
forcing the criminal law.
(e) Controlled Access
Strict controls shall be placed on the storage and retrieval of
intercepted communications of or concerning United States per-
sons. Use shall be restricted to those FBI supervisory, investigative,
and clerical personnel who have a need to know such information
to fulfill foreign intelligence or law enforcement responsibilities.
(f) Destruction of Tapes
Tape recordings and duplicate tapes of communications of or con-
cerning United States persons shall be destroyed within a reasona-
ble period of time following their authorized retention and use as
provided above, except that:
(1) tapes containing evidence of a criminal offense will be re-
tained until a decision is rendered by prosecutive authorities. If it
is decided to prosecute, tapes will be retained until the end of the
prosecution process;
(2) tapes containing communications that reasonably appear to
be exculpatory ("Brady") material shall be retained as if they con-
tained evidence of a crime;
(3) tapes containing privileged communications will be retained
until ordered to be destroyed by the Department of Justice; and
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(4) tapes required to be retained by a rule of law or a judicial
order will be retained in accordance with the requirements of that
rule or order.
Section 5-Dissemination
(a) General Restrictions
(1) Subject to the requirements of ? 5(b) of these procedures non-
publicly available information concerning United States persons
obtained from the electronic surveillances of the target ... may
not be disseminated without the consent of the United States
person involved unless the information is, or reasonably appears to
be, foreign intelligence information as defined in ? 101(e) (1) and (2)
of the Foreign Intelligence Surveillance Act or is evidence of a
crime which has been, is being, or is about to be committed.
(2) Non-publicly available information concerning United States
persons obtained from electronic surveillances of the target ...
which is foreign intelligence information may be disseminated
within the Federal Government and only to officials, agencies, or
components with responsibilities directly related to the information
proposed to be disseminated, and, upon approval of the Attorney
General, may be disseminated to foreign governments; information
which is evidence of a crime may be disseminated to Federal, state,
local, or foreign officials or agencies with law enforcement respon-
sibility for the crime.
(b) Section 101(e)(1) foreign intelligence information
Non-publicly available information concerning United States per-
sons obtained from the electronic surveillances of the target .. .
which is or reasonably appears to be foreign intelligence informa-
tion as defined in ? 101(e)(1) of the Foreign Intelligence Surveil-
lance Act may be disseminated in a manner that identifies United
States persons only for authorized foreign intelligence, foreign
counterintelligence, counter-sabotage and international terrorism,
or law enforcement purposes.
(c) Section 101(e)(2) Foreign Intelligence Information
Non-publicly available information concerning United States per-
sons obtained from the electronic surveillances of the target ...
which is or reasonably appears to be foreign intelligence informa-
tion as defined in ? 101(eX2) of the Foreign Intelligence Surveil-
lance Act may not be disseminated in a manner that identifies any
United States person, except by general characterization, unless
such person's identity is necessary to understand the information
or assess its importance and may be disseminated only for author-
ized foreign intelligence, foreign counterintelligence, counter-sabo-
tage and international terrorism, or law enforcement purposes.
(d) Criminal Information
Non-publicly available information concerning United States per-
sons obtained from the electronic surveillances of the target ...
which is evidence of a crime which has been, is being, or is about to
be committed but which is not or does not reasonably appear to be
foreign intelligence information as defined in ? 101(e) of the For-
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eign Intelligence Surveillance Act may be disseminated only for
law enforcement purposes. Any information acquired from elec-
tronic surveillances of the target agents of a foreign power which is
disseminated for law enforcement purposes shall be accompanied
by a statement that such information, or any information derived
therefrom, may only be used in a criminal proceeding with the ad-
vance authorization of the Attorney General.
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APPENDIX F
UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT
WASHINGTON, D.C.
IN THE MATTER OF THE APPLICATION OF THE UNITED STATES FOR AN
ORDER AUTHORIZING ELECTRONIC SURVEILLANCE OF
(Docket Number 80-0)
Classified and Extended by: Deputy Counsel for Intelligence Op-
erations, OIP&R, DOJ.
Reason: Intelligence, Sources and Methods; Foreign Relations.
Review on:
MINIMIZATION PROCEDURES
Pursuant to Section 101(h) of the Foreign Intelligence Surveil-
lance Act of 1978, the following procedures have been adopted by
the Attorney General, and shall be followed by the National Secu-
rity Agency in implementing this electronic surveillance as ordered
by the Court:
Sec. 1 -Applicability and Scope
These procedures apply to the acquisition, retention and dissemi-
nation of information concerning United States persons that is col-
lected in the course of electronic surveillance directed at con-
ducted under the Foreign Intelligence Surveillance Act, Public Law
95-511 ("the Act"). The procedures also apply to the
Sec. 2. Definitions
In addition to the definitions in Section 101 of the Act, the fol-
lowing definitions shall apply to these procedures:
(a) Acquisition means the interception by the National Security
Agency through electronic means of a communication to which it is
not an intended party and the processing of the contents of that
communication into an intelligible form intended for human in-
spection.
(b) Available publicly means information that a member of the
public could obtain on request, by research in public sources, or
that has been obtained by casual observation.
(c) Consent is the agreement by a person or organization to
permit the National Security Agency to take particular actions
that affect the person or organization. To be effective, consent must
be given by the person or organization against whom the action
will be taken, with sufficient knowledge to understand the action
that may be taken and the possible consequences of that action. An
agreement by an organization with the National Security Agency
to permit collection of information shall be deemed valid consent if
(21)
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given on behalf of such organization by an official or governing
body determined by the General Counsel, National Security
Agency to have actual or apparent authority to make such an
agreement.
(d) Identification of a United States person means the name,
unique title, address or other personal identifier of a United States
person in the context of activities conducted by others and related
to that person. A reference to a product by brand name, or manu-
facturer s name or the use of a name in a descriptive sense, e.g.,
"Monroe Doctrine", is not an identification of a United States
person.
(e)
U) United States person: the following guidelines apply in deter-
mining whether a person whose status is unknown meets the defi-
nition of United States person:
(1) A person known to be currently in the United States will be
treated as a United States person unless that person is positively
identified as an alien who has not been admitted for permanent
residence or unless the nature of the person's communications or
other indicia in the contents or circumstances of such communica-
tions give rise to a reasonable belief that such person is not a
United States person.
(2) A person known to be currently outside the United States, or
whose location is not known, will not be treated as a United States
person unless such person can be positively identified as such or
the nature of the person's communications or other indicia in the
contents or circumstances of such communications give rise to a
reasonable belief that such person is a United States person.
(3) A person known to be an alien admitted for permanent resi-
dence in the United States is assumed to have lost his status as a
United States person if the person is not in compliance with the
administrative formalities provided by law (8 U.S.C. 1203) that
enable such persons to re-enter the United States without regard to
the provisions of law that would otherwise restrict an alien's entry
into the United States. The failure to follow the statutory proce-
dures provides a reasonable basis to conclude that such alien has
abandoned any intention of maintaining his status as a permanent
resident alien.
(4) An unincorporated association whose headquarters are locat-
ed outside the United States may be presumed not to be a United
States person unless the Agency has information indicating that a
substantial number of its members are citizens of the United States
or aliens lawfully admitted for permanent residence.
Sec. 3. Acquisition.
The collection of information by electronic surveillance subject to
these procedures shall be accomplished in accordance with the cer-
tification of the Attorney General or the court order authorizing
such surveillance and will be conducted by technical means, and in
a manner designed to minimize to the greatest extent reasonably
feasible the acquisition of information which is not relevant to the
authorized purpose of the surveillance personnel will monitor the
collection of raw data at regular intervals to verify that the sur-
veillance is not avoidably acquiring communications of United
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States persons outside the authorized scope of the surveillance or
information concerning United States persons not related to the
purpose of the surveillance. Personnel will discard inadvertently
acquired communications of, or information concerning, United
States persons at the earliest practicable point in the processing
cycle at which such communication or information can, be identi-
fied as clearly not relevent to the authorized purpose of the surveil-
lance.
Any such communication or information acquired in the course
of an authorized surveillance may be retained and disseminated
only in accordance with Sections 4 and 5 of these procedures.
Sec. 4. Retention.
Communications of, or information concerning, United States
persons intercepted by the National Security Agency in the course
of an electronic surveillance subject to these procedures may be re-
tained in the original form or as transcribed only,
(a) *
(b) if dissemination of such communications without elimination
of references to such United States persons would be permitted
under Section 5 below.
(c) if it contains information that is evidence of a crime that has
been, is being, or is about to be committed and is retained to
permit dissemination to the appropriate law enforcement authori-
ties.
Sec. 5. Dissemination
(a) Dissemination of intelligence reports based on communica-
tions of, or which contain information concerning, an identified un-
consenting United States person may only be made if one of the
following criteria is met:
(1) the information is available publicly.
(2) the identity of the United States person is necessary to under-
stand foreign intelligence information or assess its importance, e.g.,
the identity of a senior official in the Executive Branch.
(3) the communication or information indicates that the United
States person may be an agent of a foreign power.
(4) the communication or information which is being disseminat-
ed indicates that the United States may be:
(A) a foreign power as defined in Section 101(a) (4) or (6) of the
Act;*
(B) residing outside the United States and holding an official po-
sition in the government or military forces of a foreign-power such
that information about his activities would constitute foreign intel-
ligence;*
(C) a corporation or other entity that is owned or controlled di-
rectly or indirectly by a foreign power;* or
(D) acting in collaboration with an intelligence or security service
of a foreign power and the United States person has, or has had,
access to information or material classified by the United States;
' The identity of a United States person in this context is deemed to meet the statutory stand-
ard of "necessary to understand or assees" the importance of foreign intelligence information.
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(5) the communication or information indicates that the United
States person may be the target of intelligence activities of a for-
eign power.
(6) the communication or information indicates that the United
States person is engaged in the unauthorized disclosure of classi-
fied national security information, but only after the agency that
originated the information certifies that it is properly classified.
(7) the communication of information indicates that the United
States person may be engaging in international terrorist activities.
(8) the interception of the United States person's communication
was authorized by a court order issued pursuant to Section 105 of
the Act and the communication may relate to the foreign intelli-
gence purpose of the surveillance.
(9) the communication or information is evidence that a crime
has been, is being, or is about to be committed provided that dis-
semination is for law enforcement purposes, e.g., the communica-
tion or information indicates a possible threat to the life or physi-
cal safety of any person.
(b) A report based on a communication of, or information con-
cerning, an unconsenting United States person that is not publicly
available may be disseminated without regard to the limitations in
(a) above if the identity of the United States person is deleted and
a generic term or symbol is substituted so that the information in
the context of the communication cannot reasonably be connected
with an identifiable United States person.
(c) Reports based on the communications of, or containing infor-
mation concerning, an identified unconsenting United States
person may only be disseminated to a recipient requiring the iden-
tity of such person in the performance of official duties.
(d) Upon recognition that a radio communication to which all
parties are in the United States has been unintentionally acquired
under circumstances in which a person has a reasonable expecta-
tion of privacy and a warrant would be required for law enforce-
ment purposes, such comunication shall be destroyed promptly
unless the Attorney General determines that the contents indicate
a threat of death or serious bodily harm to any person.
Sec. 6. Special Minimization for Certifications
Notwithstanding any other provision of these procedures if, in
the course of surveillance conducted pursuant to an Attorney Gen-
eral certification issued in accordance with the provisions of Sec.
102(a) of the Act, NSA acquires the contents of any communication
to which a United States person is a party, the communication
shall not be disclosed, disseminated, or used for any purpose or re-
tained for longer than twenty-four hours after recognition unless a
court order is obtained or unless the Attorney General determines
that the information indicates a threat of death or serious bodily
harm to any person.
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DISSENTING VIEWS
The Congress U.S.C. should repeal e the Foreign Intelligence Surveillance
Act (FISA) (50 seq.), which requires prior judicial ap-
proval for foreign electronic surveillance, and restore the law to its
pre-FISA status in which the President, in accordance with his
powers and duties under Article U of the Constitution, held exclu-
sive authority for electronic surveillance of foreign powers and
their agents within the United States for foreign intelligence pur-
poses. The President must have authority to engage in electronic
surveillance in the United States for foreign intelligence purposes
with great speed and the utmost secrecy, especially in these times
of increased danger from hostile foreign nations and from interna-
tional terroists. Moreover, judges and judicial procedure are ill-
suited to make the determinations needed in electronic surveil-
lance of foreign powers and their agents.
INCREASED THREAT TO SECURITY OF THE UNITED STATES
Events in recent times have demonstrated the great degree to
which hostile foreign nations have accelerated their espionage ac-
tivities in the United States. Soviet bloc agents active in the
United States have acquired the secrets of an extremely sophisti-
cated, sensitive and valuable satellite system for intelligence collec-
tion and the secrets of United States ballistic missile defense ef-
forts. Soviet bloc espionage agencies have engaged in the United
States in successful clandestine efforts to acquire sensitive technol-
ogy which has important military and intelligence applications.
Hostile intelligence services have recruited disloyal United States
Intelligence personnel who have provided them with a great deal of
damaging information on United States intelligence activities. The
Soviet KGB and other Communist bloc intelligence services it con-
trols have engaged in a broad range of espionage activities within
the United States. To combat these Soviet bloc activities which
threaten the security of the Nation, the United States must im-
prove its counterintelligence capabilities. Onl through more ag-
gressive counterintelligence activities can the United States parry
the Soviet espionagehthrust into the United States. Restoring the
President's exclusive authority to conduct electronic surveillance
for foreign intelligence purposes by repealing the FISA would be
an important contribution to an effective, highly secure counterin-
telligence effort.
In addition to the increased threat to the security of the United
States from the espionage activities of hostile foreign nations, the
United States faces a similar increased threat from terrorist activi-
ties. Forty percent of the terrorist attacks in the world in 1988
were directed at Americans. In November 1983, a powerful bomb
exploded in the U.S. Capitol and, but for the luck of an early ad-
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journment, Senators probably would have died. The United States
presents inviting targets for terrorists because attacks on Ameri-
cans guarantee maximum publicity.
UNSUITABILITY OF THE JUDICIAL PROCESS FOR FOREIGN INTELLIGENCE
DECISIONS
The Supreme Court made clear the special role of the President
in intelligence and foreign policy and has expressed the need to re-
frain from judicial intrusion into such matters:
The President, both as Commander-in-Chief and as the
Nation's organ for foreign affairs, has available intelli-
gence services whose reports are not and ought not to be
published to the world. It would be intolerable that courts,
without the relevant information, should review and per-
haps nullify actions of the Executive taken on information
properly held secret. Nor can courts sit in camera in order
to be taken into executive confidences. But even if courts
could require full disclosure, the very nature of executive
decisions as to foreign policy is political, not judicial. Such
decisions are wholly confided by our Constitution to the
political departments of the government, Executive and
Legislative. They are delicate, complex, and involve large
elements of prophecy. They are and should be undertaken
only by those directly responsible to the people whose wel-
fare they advance or imperil. They are decisions of a kind
for which the Judiciary has neither aptitude, facilities nor
responsibility and which has long been held to belong in
the domain of the political power not subject to judicial in-
trusion or inquiry.'
The FISA flies in the face of this wisdom. A single judge of the
Foreign Intelligence Surveillance Court has the power to deny the
President, or his duly authorized representatives, the use of elec-
tronic surveillance. on agents of foreign powers, such as foreign
spies or terrorists, engaged in activities hostile to United States in-
terests. Judges are not suited by training or temperament to make
the intelligence evaluations and security decisions involved in for-
eign intelligence electronic surveillances.
The authority for electronic surveillance for foreign intelligence
purposes should rest with the President alone. Presidential prima-
cy with respect to such electronic surveillance would best satisfy
the need for speed and strict secrecy in United States counterespio-
nage and counterterrorism operations. Moreover, Presidential pri-
macy in such matters is fully consistent with the Constitution and
with the protection of the civil liberties of Americans; indeed, by
contributing to the security of the Nation, it protects the ability of
present and future generations of Americans to exercise their free-
doms.
' Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp., 333 U.S. 103, 111 (1948)
(citations omitted).
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THE CONSTITUTION AND FOREIGN INTELLIGENCE ELECTRONIC
SURVEILLANCE
Article II of the Constitution vests "the executive power" in the
President, makes him Commander-in-Chief of the armed forces,
gives him the power to make treaties (with Senate concurrence),
and gives him the power to appoint ambassadors (with Senate con-
sent) and receive ambassadors.2 The Supreme Court has recognized
that the constitutional scheme provides for presidential primacy in
foreign affairs and assigns him ultimate responsibility to protect
national security.' As recently as 1981, the Supreme Court stated
that "matters intimately related to foreign policy and national se-
curity are rarely proper subjects for judicial intervention." 4 No-
where is the need for exclusive presidential authority greater than
in protecting this Nation from international terrorism and from
the espionage activities of hostile foreign nations, and such matters
fall squarely within the national security and foreign affairs
realms with respect to which the Supreme Court has repeatedly
stated that no appropriate role for the judiciary exists. The courts
of the United States have consistently held that the Constitution
does not require the President or his authorized representatives to
obtain a judicial warrant or order for the conduct of electronic sur-
veillance of foreign powers and their agents for foreign intelligence
purposes.5 The courts which have considered such foreign intelli-
gence electronic surveillance have held squarely and explicitly that
the President may, consistently with the Fourth Amendment, au-
thorize electronic surveillance of foreign powers and their agents
within the United States without obtaining a judicial warrant.
In United States v. Humphrey and Truong, 629 F.2d 908, 913-14
(4th Cir. 1980), the United States Court of Appeals for the Fourth
Circuit held that the Executive Branch need not obtain a judicial
warrant for foreign intelligence electronic surveillances of agents
of foreign powers. The Court stated:
For several reasons, the needs of the executive are so
compelling in the area of foreign intelligence, unlike the
area of domestic security, that a uniform warrant require-
ment would, following Keith [see note 5], "unduly frus-
trate" the President in carrying out his foreign affairs re-
sponsibilities. First of all, attempts to counter foreign
threats to the national security require the utmost stealth,
' U.S. Cont., art. II, sec. 1 (executive power), sec. 2 (Commander-in-Chief) (treaty power) (am-
bassadorial appointment), and sec. 8 (ambassadorial receipt).
' United States v. Curtiaa-Wright &sport Corp., 299 U.S. 304 (1936); see Chicago & Southern
Airlines, supra n. 1.
4Haig v. Agee, 453 U.S. 280, 292 (1981); see Harisiades v. Shaughnessy, 342 U.S. 580 (1952)
(matters "relating to the conduct of foreign relation ... are so exclusively entrusted to the
political branches of government as to be largely immune from judicial inquiry or interfer-
ence. c) al
holding of the case of United States v. United States District Court, 407 U.S. 297 (1972),
is not to the contrary. The case, known commonly as the Keith case after the name of the U.S.
district judge involved in the case, stands for the proposition that the Fourth Amendment gener-
ally requires a warrant for domestic security electronic surveillances within the United States.
The Court specifically stated that it did not answer the question whether a warrant is or is not
required for a foreign intelligence electronic surveillance in the United States, which involves
activities of an agent of a f power. Id. 321-22. Similarly, Zweibon v. Mitchell 516 F.2d 594
M.C. Cir. 1975), cert denied U S. 944 (1976), did not deal with a foreign intelligence surveil
lance of an agent of a foreign power.
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speed, and secrecy. A warrant requirement would add a
procedural hurdle that would reduce the flexibility of exec-
utive foreign intelligence initiatives, in some cases delay
executive response to foreign intelligence threats, and in-
crease the chance of leaks regarding sensitive executive
operations.
More importantly, the executive possesses unparalleled
expertise to make the decision whether to conduct foreign
intelligence surveillance, whereas the judiciary is largely
inexperienced in making the delicate and complex deci-
sions that lie behind foreign intelligence surveillance.
The executive branch, containing the State Department,
the intelligence agencies, and the military, is constantly
aware of the nation's security needs and the magnitude of
external threats posed by a panoply of foreign nations and
organizations. On the other hand, while the courts possess
expertise in making the probable cause determination in-
volved in surveillance of suspected criminals, the courts
are unschooled in diplomacy and military affairs, a mas-
tery of which would be essential to passing upon an execu-
tive branch request that a foreign intelligence wiretap be
authorized. Few, if any, district courts would be truly com-
petent to judge the importance of particular information
to the security of the United States or the "probable
cause" to demonstrate the government in fact needs to re-
cover that information from one particular source.
Perhaps most crucially, the executive branch not only
has superior expertise in the areas of foreign intelligence,
it is also constitutionally designated as the pre-eminent au-
thority in foreign affairs.
The President and his deputies are charged by the con-
stitution with the conduct of the foreign policy of the
United States in times of war and peace. Just as the sepa-
ration of powers in Keith forces the executive to recognize
a judicial role when the President conducts domestic secu-
rity surveillance, so the separation of powers requires us
to acknowledge the principal responsibility of the Presi-
dent for foreign affairs and concomitantly for foreign intel-
ligence surveillance.
In sum, because of the need of the executive branch for
flexibility, its practical experience, and its constitutional
competence, the courts should not require the executive to
secure a warrant each time it conducts foreign intelligence
surveillance. [Citations omitted.]
Similarly, in United States v. Brown, 484 F.2d 418, 426 (5th Cir.
1973), cert. denied, 415 U.S. 960 (1974), the U.S. Court of Appeals
for the Fifth Circuit stated:
[B]ecause of the President's constitutional duty to
act for the United States in the field of foreign relations,
and his inherent power to protect national security in the
context of foreign affairs, we reaffirm ... that the Presi-
dent may constitutionally authorize warrantless wiretaps
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for the purpose of gathering foreign intelligence. [Citations
omitted.]
The decisions of the U.S. Courts of Appeals for the Third Circuit
in United States v. Butenko, 494 F.2d 593 (3rd Cir. 1974) (en banc),
cert. denied sub nom. Ivanov v. United States, 419 U.S. 881 (1974),
and for the Ninth Circuit in United States v. Buck, 548 F.2d 871
(9th Cir. 1977), cert. denied 434 U.S. 890 (1977), are in agreement
with the Humphrey and Truong and Brown decisions quoted above.
In these cases, the United States Courts of Appeals for the Third,
Fourth, Fifth, and Ninth Circuits have all concluded that Article H
of the Constitution authorizes the President of the United States to
engage in foreign intelligence electronic surveillances of foreign
powers and agents of foreign powers within the United States, and
that the Fourth Amendment does not require the President to
obtain a judicial warrant for such surveillances. It is thus eminent-
ly clear in the law that the Constitution does not mandate the For-
eign Intelligence Surveillance Act, or any similar legislation by
which the President would be required to obtain the approval of a
court to surveil a foreign power or an agent of a foreign power
within the United States.
Although the courts have repeatedly made clear that the Consti-
tution authorizes the President to undertake foreign intelligence
electronic surveillance consistent with the Fourth Amendment
without prior judicial approval, the Congress commanded judicial
activism in foreign intelligence electronic surveillance when it
adopted the Foreign Intelligence Surveillance Act of 1978. In the
FISA, the Congress mandated that the Executive Branch obtain
the approval of a judge to engage in foreign intelligence electronic
surveillance within the United States of foreign powers and their
agents. The Congress required such prior judicial approval despite
judges' lack of training in intelligence, diplomatic and military
matters; despite the unsuitability of the Judicial process for making
delicate national security judgments; and despite the great need for
speed and absolute secrecy in foreign intelligence electronic sur-
veillance.
The Constitution places upon the President of the United States
the duty to protect this Nation from threats from abroad. The
United States currently faces an acute threat to its national securi-
ty from espionage by hostile foreign nations and from the violence
of international terrorists. To counter these growing threats to the
security of the Nation, the President should be able, consistently
with the Constitution, to bring effectively to bear against agents of
hostile foreign powers the full counterintelligence and counterter-
rorism capabilities of the federal government. Foreign intelligence
electronic surveillance of these agents of foreign powers is a critical
element of these capabilities.
The Congress should, therefore, repeal the Foreign Intelligence
Surveillance Act, restoring to the President the full power the Con-
stitution grants him to authorize, without a judge's prior approval,
electronic surveillance within the United States of foreign powers
and their agents for foreign intelligence purposes. Repeal of the
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FISA would assist greatly in the preservation, protection and de-
fense of the Nation against externally-generated dangers.
C. W. BILL YOUNG.
BOB STUMP.
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