Leaving FISA behind: The Need to Return to Warrantless Foreign Intelligence Surveillance

Abstract

In a locked, windowless room with walls of corrugated steel, in a restricted area of a Justice Department building in Washington, sits the Foreign Intelligence Surveillance Court (FISC). Conducting proceedings completely hidden from the public, as mandated by Foreign Intelligence Surveillance Act (FISA) of 1978, the FISC grants government agents permission to surveil targets if there is probable cause to believe they are foreign powers or agents of foreign powers. The FISC is accustomed to approving each government request it receives, but on May 17, 2002, it issued an order stating that the Department of Justice (DOJ) had overstepped its bounds by promulgating surveillance procedures that gave prosecutors too much supervisory authority over intelligence investigations. The DOJ insisted that its procedures were in accordance with the FISA amendments passed with the USA PATRIOT Act, and filed the first ever appeal to the Foreign Intelligence Surveillance Court of