Summary  Why Section 218 Should be Retained  Imaginary Walls ...  A Response ...  The Last Word?

Section 218.
Amending the FISA Standard

A Summary by Mary DeRosa

Section 218 amends FISA by changing the certification requirement when the government seeks a FISA surveillance or search order. Previously, the government was required to certify that "the purpose" of the application was to obtain foreign intelligence information. After section 218, the government must certify that obtaining foreign intelligence information is "a significant purpose" of the application. This change was designed to promote information sharing between intelligence and law enforcement officials and to eliminate what has become known as the "wall" that separated law enforcement and intelligence investigations.

The FISA, passed in 1978, sets forth procedures for the conduct of electronic surveillance and physical searches for foreign intelligence purposes. Over the years, the Department of Justice interpreted FISA's requirement that "the purpose" of collection be foreign intelligence to restrict the use of FISA collection procedures when a law enforcement investigation was involved. The restriction was designed to ensure that prosecutors and criminal investigators did not use FISA to circumvent the more rigorous warrant requirements for criminal cases. But law enforcement and foreign intelligence investigations often overlap, and enforcing this separation between intelligence and law enforcement investigations—the "wall"—inhibited coordination of these investigations and the sharing of foreign intelligence information with law enforcement officials. The change to "significant purpose" was intended to clarify that no such separation is necessary.

It is not clear whether the change in section 218 was legally necessary to eliminate the "wall." The Department of Justice argued to the FISA Court of Review in 2002 that the original FISA standard did not require the restrictions that the Department of Justice imposed over the years, and the court appears to have agreed. This leaves the precise legal effect of a sunset of section 218 somewhat murky.

Why Section 218 Should Be Retained
by Andrew C. McCarthy

No subordination of national security to hypothetical fears of civil liberties abuse was more emblematic of the pre-9/11 world than the metaphorical "wall' erected to obstruct the information flow between intelligence and criminal investigators.

Section 218 of the Patriot Act dismantled this construct by amending its literal underpinning—the basis for the ill-conceived "primary purpose' test by which FISA was misinterpreted for nearly a quarter-century, to disastrous effect. As the wall was founded on a skewed interpretation of law, Section 218 was theoretically unnecessary. Nevertheless, it was entirely appropriate and its enactment proved to be critical.

Post-9/11, discussions focus on explaining the genesis of the wall rather than defending it. Indeed, former Attorney General Janet Reno, on whose watch the wall was solidified in internal guidelines, testified to the 9/11 Commission that, more critical to national security than realigning the intelligence community would be " to knock down walls, to promote the sharing of information, and to enhance collaboration in the fight against terrorism.' And in 2002, the Foreign Intelligence Surveillance Court of Review, in its first ever opinion, provided a detailed explanation of the wall's fatal flaws.

The relevant history traces to the 1978 enactment of FISA (50 U.S.C. §§ 1801et seq. ((2000 ed.)). A reaction to Vietnam and Watergate era domestic-intelligence abuses, FISA authorizes a special federal FISA court to regulate and monitor the executive branch's conduct of electronic surveillance and physical searches in the context of national-security investigations. This is in contrast to ordinary investigations, where the use of those techniques is governed by the criminal law.

More . . .

Imaginary Walls and Unnecessary Fixes by David Cole 

Supporters of the Patriot Act often complain that critics have perpetuated myths about the Act, blaming the Act for more than it actually deserves. But supporters are equally guilty of propagating competing myths in this debate, nowhere more so than with respect to Section 218 and the "wall." Justice Department officials regularly credit Section 218, as has Andrew McCarthy here, with bringing down a "wall" constructed by the Foreign Intelligence Surveillance Act (FISA) that barred information sharing between criminal law enforcement officials and intelligence agents. But as McCarthy himself concedes, FISA did not in fact require a "wall" before Section 218 was enacted. As such, the amendment made by Section 218 was neither necessary nor sufficient to eliminate the barriers to information sharing captured in the image of the "wall." There were many impediments to information sharing before 9/11, but their cause was and remains today largely bureaucratic, not statutory. Moreover, the reform that Section 218 did actually make is of questionable constitutionality, because it permits searches undertaken primarily for criminal law purposes on less than the criminal probable cause showing that the Fourth Amendment requires for criminal law enforcement searches.

Section 218 made a very simple change to pre-existing law. Prior to the Patriot Act, FISA required that foreign intelligence gathering be "the purpose" of a FISA wiretap or search; Section 218 requires that foreign intelligence gathering be only "a significant purpose" of a FISA wiretap or search. Courts had interpreted the pre-Patriot Act language to require the government to show that the "primary purpose" of a FISA application was intelligence gathering rather than criminal law enforcement. Critics often dismiss that distinction as silly, because, as McCarthy argues, many terrorist crimes are matters of both criminal law and foreign intelligence. But the pre-Patriot Act law recognized that, and in no way precluded FISA searches simply because they might also have a criminal law purpose. The "primary purpose" test simply sought to reduce the risk that FISA, which permits searches on less than criminal probable cause, would become an end run around the constitutional requirement of criminal probable cause for searches conducted for criminal law purposes. The law acknowledged that investigations might have dual purposes, but contemplated that if the government's primary purpose was criminal law enforcement, it should be required to seek a warrant under the criminal probable cause standard. As long as the government's primary purpose was foreign intelligence gathering, it could obtain a warrant under the less stringent FISA standards, even if the search also had criminal law enforcement purposes. .

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A Response to Professor Cole by Andrew C. McCarthy 

It is apt that Professor David Cole begins the title of his response "Imaginary Walls[.]" His submission is largely imaginary, creating rather than relating "myths" about the structural impediments to good intelligence that plagued the pre-9/11 world.

Prof. Cole's response is thoroughly ill-conceived. His basic premise, Section 218 aside, is that FISA itself is unconstitutional. Why? "[B]ecause the Supreme Court has never passed on [its] validity." This is an unworthy claim. As an act of congress, FISA is presumptively valid. More to the point, it has been upheld repeatedly by federal appeals courts. The Supreme Court hasn't had to assess it lo these last 27 years because no challenge to it has been sufficiently colorable. By Cole's logic, we should fret that any makeweight claim may be of constitutional moment if its emptiness, unsurprisingly, has led the Supreme Court to eschew entertaining it.

Prof. Cole's problem with FISA appears to be that his imaginary Fourth Amendment says searches are inappropriate absent probable cause of a crime. Of course, the actual Fourth Amendment prohibits only "unreasonable" searches, and the commission of crime is not a sine qua non of reasonableness. The American people obviously have a right to determine if non-Americans are engaged in covert intelligence gathering, or worse. The FISA search standard is not, as Cole insists, a "lower showing of suspicion" than is required in the criminal context; it is a different showing of suspicion—still requiring probable cause, but of foreign power agency rather than traditional crime.

The suggestion that a "foreign power" under FISA could be any "political organization" comprised predominantly of non-citizens is overwrought. One isn't told what Prof. Cole means by a "political organization"—Hezbollah, Hamas and Sinn Fein, for example, describe themselves as such—but the foreign powers FISA targets, by statutory definition, are those engaged in clandestine intelligence gathering activities, sabotage or international terrorism. See 50 U.S.C. §§ 1801(b)(2)(A), (C).

Atop his faulty premise that FISA is suspect, Prof. Cole piles the additional myth that Section 218 is suspect because it permits FISA searches and surveillance "undertaken primarily for criminal law purposes." To the contrary, as the FISA Court of Review reasoned in its 2002 opinion, FISA as written never limited the government to searches whose primary purpose was intelligence gathering. By mandating that intelligence gathering be "a primary purpose," Section 218 actually constrains the government in a way that neither the Fourth Amendment nor FISA does. Given that FISA easily passes Fourth Amendment muster, a provision such as Section 218, which narrows it, a fortiori is not constitutionally suspect.

Finally, Professor Cole's mythical account skews the history of the wall and the purpose of Section 218. Nobody is saying FISA "mandated a 'wall' between law enforcement officials and intelligence agents"—and when I argued that FISA did not require a wall, that palpably was an assertion, not, as Professor Cole oddly spins it, a "conce[ssion]." Yes, the wall was unnecessarily erected by the courts and the Justice Department. But that it was a mistake did not make it any less real. And that there may have been cultural impediments to intelligence sharing does not mean the structural ones manufactured by the wall were not critical.

Thus, to assert, as Cole does, that Section 218 did not significantly contribute to prosecutions like the Sami al-Arian case because FISA wiretaps were valid under pre-Patriot law entirely misses the point. No one claims the wall tainted the propriety of intelligence gathering. It blocked sharing of the intelligence gathered. That is the bureaucratic monstrosity dismantled by Section 218.

As a practical matter, Section 218 was crucial because, had it not been enacted, the litigation ending in the FISA Court of Review decision would not have happened. Without that clarification of law, the disastrous primary purpose doctrine would be undisturbed, the unnecessary wall would still be in place, dots would remain unconnected, prosecutions like al-Arian would not have occurred, and the United States would be at considerably greater risk.

David Cole The Last Word?

I did not argue that FISA, as amended by Section 218, is unconstitutional simply because "the Supreme Court has never passed on [its] validity," as Andrew McCarthy claims, but because the very purpose of Section 218's revision deprives FISA of its constitutional justification. FISA searches are generally defended as constitutional without probable cause of criminal activity because they fall under the "administrative search" exception to the probable cause requirement. But that exception, the Supreme Court has held, does not apply where the government's purpose is criminal law enforcement. FISA's pre-Patriot Act requirement that the search's primary purpose be foreign intelligence gathering, not criminal law enforcement, may well have been constitutionally required to make FISA searches valid. After the Patriot Act, foreign intelligence gathering need only be "a significant purpose" of the search—the primary purpose can be criminal law enforcement. That raises a serious constitutional concern.

McCarthy's only response is predicated on a demonstrably false premise. He says Section 218 is constitutional because it "mandat[es] that intelligence gathering be 'a primary purpose'" of the investigation. In fact, the very purpose of Section 218 was to eliminate the "primary purpose" requirement.

McCarthy's response is also erroneous in other respects. He falsely claims that FISA targets only those "foreign powers" engaged in intelligence gathering, sabotage or international terrorism, citing 50 U.S.C. §§ 1801(b)(2)(A), (C)). In fact, FISA also defines "foreign power" as "a foreign-based political organization, not substantially composed of United States persons." 50 U.S.C. § 1801((a)(5). An "agent" of a foreign power need only be "an officer or employee of a foreign power." Neither agent nor power need be involved in any wrongdoing. Thus, a British citizen working here as an employee of Amnesty International is an "agent of a foreign power." Surely such a definition is a little overbroad.

Finally, McCarthy offers no response whatsoever to my proposal that, given FISA's increased use in criminal prosecutions, it should be amended to permit defendants in those prosecutions access to the FISA applications to challenge the warrant's validity. We may well need FISA, but FISA also needs to be held accountable to the adversary process, particularly as it becomes unmoored from its initial justification, and instead becomes an end-run around the Fourth Amendment in criminal investigations.