[elwoodblues]

Incidentally, I thought this law review article was interesting (quick blurb quoted below).
<u>THE FUSS OVER TWO SMALL WORDS: THE UNCONSTITUTIONALITY OF THE USA PATRIOT ACT AMENDMENTS TO FISA UNDER THE FOURTH AMENDMENT</u> 71 GWLR 291


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The above quotes embody the convergence of two basic values of our American society: national security [FN3] and individual liberties. The government has a duty to defend our nation against foreign threats. [FN4] In doing so, however, the government must respect our constitutional right to be free from unreasonable government intrusion. [FN5] In 1978, Congress enacted the Foreign Intelligence Surveillance Act [FN6] ("FISA") in an effort to reconcile these conflicting but complimentary values in the area of foreign intelligence. [FN7] Composed of specific standards that permit lawful wiretaps where the government seeks to obtain foreign intelligence information, FISA provides a check to the President's asserted authority to conduct warrantless electronic surveillances on the grounds of national security. [FN8] In the end, FISA appropriately balanced the executive's intelligence needs in defending our nation with its obligation to uphold constitutional freedoms.
The intricate balance came with a cost. FISA achieved constitutional and political equilibrium by enabling the executive to conduct electronic surveillances without having to meet the traditional probable cause requirement for criminal investigations. [FN9] Although the fruits of a FISA surveillance may lead to criminal prosecution, FISA simply requires probable cause to believe that the target of the electronic surveillance is a foreign agent and the targeted facility is, or is about to be, used by a foreign agent. [FN10] This relaxed probable cause standard adequately reflects the nature and severity of the foreign threat at issue and the difficulty in obtaining information associated with such a threat.
Conversely, this relaxed probable cause standard is applied only where "the" purpose of the surveillance is to gather foreign intelligence. [FN11] Codified in FISA, this requirement was integral to the law's constitutionality by providing a nexus between the national security interest and the intrusion imposed on the individual. Thus, the foreign intelligence purpose requirement ensured that the relaxed probable cause standard of FISA applied only to *293 situations genuinely involving national security from foreign threats. [FN12] Courts deemed this FISA prerequisite fulfilled so long as the primary purpose of the surveillance was to gather foreign intelligence. [FN13] The role of the foreign intelligence purpose standard in protecting Fourth Amendment guarantees and bringing FISA within that amendment's constitutional dimensions cannot be overlooked. Indeed, judicial reliance of and executive adherence to the foreign intelligence purpose standard, before and after its codification, is indicative of its significance in allowing FISA to effectively balance the interests of both the government and individual citizens. [FN14]
Almost a quarter-century after the enactment of FISA the United States became victim to the most devastating foreign attack in its history. On September 11, 2001, over 3,000 people perished and thousands more were injured at the hands of a sophisticated foreign terrorist organization. [FN15] In the wake of this tragedy, the government's pressing interest became the ability to fight an unprecedented threat undeterred by old laws and strengthened by advancements in technology. As a result, Congress enacted the Uniting and Strengthening America by Providing Appropriate Tools Required to Interrupt and Obstruct Terrorism Act of 2001 [FN16] ("USA PATRIOT Act") to strengthen the federal government's ability to carry out this objective. [FN17] It provided sweeping new powers to both domestic law enforcement and intelligence agencies to fight terrorism. [FN18] In the process, however, it altered many procedural guarantees vital to our personal freedoms and eliminated much of the checks and balances that previously gave courts the opportunity to ensure that criminal investigatory powers were not abused. Moreover, the large and complex body of law was passed hastily without the use of traditional legislative procedures in light of the immediate threat of terrorism that continued *294 to exist after the attacks and the overwhelming public outcry for effective security. [FN19]
One of the subtle yet far-reaching changes made by the USA PATRIOT Act is the foreign intelligence purpose standard of FISA. Under section 218 of the USA PATRIOT Act, a FISA warrant may now be issued so long as "a significant" purpose of the electronic surveillance is to gather foreign intelligence. The fuss over two small words cannot be larger in consequence. A warrant to conduct an electronic surveillance can now be issued under FISA's relaxed probable cause requirement so long as an ancillary foreign intelligence purpose exists, thereby enabling the government to illegitimately circumvent the normal probable cause requirement in a criminal investigation. In disregarding the nexus required between the national security interest and the intrusion upon the individual to make the search reasonable, this new standard wholly ignores the individual interests that necessitate the protections of the Fourth Amendment. In the end, the new standard serves as an invitation for any proclivity that law enforcement authorities may have in abusing its surveillance authority under the guise of national security while diminishing the judiciary's role in safeguarding personal rights against unreasonable law enforcement activity. As a result, the technical modification to FISA fails to provide an appropriate balance between the government's interest in national security and an individual's Fourth Amendment rights.

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