FISA’s Significant Purpose Requirement and the Government’s Ability to Protect National Security

By Scott J. Glick* –

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In 2006, Congress enacted two potentially significant restrictions on the government’s ability to collect foreign intelligence information pursuant to FISA.  Against the backdrop of a Foreign Intelligence Surveillance Court of Review (Court of Review) decision that arguably reached an erroneous conclusion about the meaning and scope of FISA’s significant purpose requirement, Congress let stand two restrictions that the Court of Review had placed on the government’s use of FISA.  First, the Court of Review held that if the government’s primary purpose was to prosecute, then the government could use FISA only if it intended to prosecute an alleged terrorist or spy for what the court called a “foreign intelligence crime.”  The Court of Review also held that the government could not use FISA, even when it intended to prosecute for a foreign intelligence crime, if that crime occurred in the “past.”  This Article examines the Court of Review’s decision and argues that the court reached an erroneous conclusion in regard to the scope of the government’s power.  The Article also takes a comprehensive and fresh look at the legislative history of FISA’s purpose requirement, both before and after the Court of Review’s decision.  The Article demonstrates that Congress was keenly aware of the restrictions placed on the government by the Court of Review, and rather than explicitly expressing its will in a Final Conference Report with respect to that decision, it simply voted to repeal the amendment’s sunset provision.  The Article concludes by proposing legislation that would remove both of the restrictions placed on the government by the Court of Review.

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* Deputy Chief, Counterterrorism Section, National Security Division, U.S. Department of Justice; former Deputy Counsel for Criminal Matters, Office of Intelligence Policy and Review, U.S. Department of Justice.  This article has been reviewed for publication by the Justice Department in accordance with 28 C.F.R. § 17.18.  The views expressed in this article are solely those of the author and do not necessarily reflect the views of the Justice Department.  The author wishes to thank Lisa Farabee, Daniel Marcus, David Rosenberg, and Richard Seamon for their review and comments on an earlier draft of this Article.  The author also wishes to thank Dena Roth, J.D. Georgetown 2010, for her research assistance and comments.