NCJ Number
99917
Journal
Judges' Journal Volume: 24 Issue: 3 Dated: (Summer 1985) Pages: 14-19,52
Date Published
1985
Length
7 pages
Annotation
The provisions, workings, and court challenges of the Foreign Intelligence Surveillance Act (FISA) are reviewed.
Abstract
FISA allows for electronic surveillance only of foreign powers and their agents (including terrorists) within the United States. In enacting this legislation, the Congress also authorized establishment of a special district court to authorize surveillance and an appellate court for review of denials. The legislation also mandates specific procedures, including legality determination by Federal district courts. Some courts have considered FISA's constitutionality; defendants have used constitutional and other arguments to challenge the law. In some cases, the defendants contended that FISA violated the Constitution in that court members do not have life tenure and proceedings are held in parte. In others, it has been contended that political questions are nonjusticiable. Fourth ammendment challenges have focused on use of surveillance on mere possibility, rather than probable cause, grounds. A number of cases have argued that FISA violates due process because of the ex parte procedures which deny defendants access to surveillance application. A standard argument in terrorist cases has been that the surveillance was unlawful because it was used to acquire information for criminal prosecution rather than for intelligence purposes. Finally, challenges have centered on whether procedures were undertaken to minimize interception of communications not containing foreign intelligence information. To date, FISA has withstood these challenges, but further litigation can be anticipated.