Section 218 aka “FISA: It’s everywhere you don’t want to be”
Section 218 amends the Foreign Intelligence Surveillance Act, a “bargain” struck in 1978 wherein the usual requirements for a police search—probable cause to believe a criminal act had occurred and a warrant—would be unnecessary in a teeny, tiny number of cases. That teeny, tiny number of cases just expanded dramatically.
What it does: Secret searches can now be authorized by a secret court without public knowledge or Department of Justice accountability, so long as the government can allege there is any foreign intelligence basis for the search.
The law before and how it changed: In 1978 the Foreign Intelligence Surveillance Act created an exception to the Fourth Amendment’s “probable cause requirement” for physical searches, wiretaps, and subpoenas of business records. FISA created a secret court that granted search warrants so long as a pleading before a closed court asserted that the “primary purpose” of the search or wire tap was to gather foreign intelligence. The warrant needn’t be based on a suspicion of criminal behavior. But the target had to be “linked to foreign espionage.” In theory, American citizens were safe unless they were suspected “agents of a foreign power.” A good indicator of the objectivity of the FISA court: It rejected only five of the 14,000 warrant applications it received before 2001, although it recently became clear that many of those warrants were based on false allegations. The FISA court is not supposed to second-guess the government. These are not adversarial proceedings. Nor does the FISA court maintain ongoing oversight over the surveillance. Patriot amends FISA to allow searches when “a significant purpose” is intelligence-gathering. Not “primary,” but significant. Now you can be subject to secret searches authorized by a secret court so long as there is any foreign intelligence component (and increasingly, drug-related offenses are deemed to have a terrorist component). Moreover, the party to be searched need not be connected to foreign espionage anymore. It’s enough that the government may merely learn something about a terror investigation. Section 207 of the act lengthens the durations of FISA warrants to as long as 120 days in some cases. Finally, under the pre-Patriot FISA and Title III, fruits of FISA search warrants could be used only for information-gathering, not for prosecution. But now intelligence information obtained using FISA’s lower standards for probable cause can be passed along for prosecution purposes.
How it’s been implemented: Since Patriot expanded the small number of cases in which a FISA court might authorize a search warrant, the number of warrants issued has, unsurprisingly, risen slightly. The FISA court approved 1,228 applications for warrants in 2002, up from 934 in 2001 and 1,012 in 2000. (The number of warrants issued was consistently below 1,000 throughout the ‘90s.) When asked by the House Judiciary Committee in 2002 how many of these warrants met the “significant purpose” standard but would have failed to meet the “primary purpose” standard, the DOJ hedged, saying they’d kept no statistics on the distinction.
But the DOJ consistently argues that the principal impact of Section 218 lies not in the expanded applicability of the warrants, but in the way it has facilitated intelligence sharing. As the DOJ paints it, the pre-Patriot era was an icy one; criminal prosecutors and intelligence experts toiled away, rarely communicating with one another. There were protocols for sharing some information, but for the most part, “the metaphorical ‘wall’ between the intelligence community and federal law enforcement often precluded effective and indeed vital information sharing, perversely creating higher barriers in the most serious cases,” as the DOJ told the House Judiciary Committee in May. Making no mention of the possible benefits of this divide—such as prohibiting prosecutors from building their case on warrantless searches—the DOJ crowed in the May report that Sections 218 and 504(a) brought this “artificial dichotomy” to an end, citing the February indictment of Sami Al-Arian—the University of South Florida professor alleged to be a leader of a Palestinian Islamic Jihad cell—as a prime example of what can be achieved when intelligence types and law enforcement officials log a few hours on a ropes course and really start working together. The allegations in the Al-Arian indictment were based on information collected pursuant to FISA but before the passage of Patriot. In those days, FISA protocols allowed for some information sharing. But criminal prosecutors and investigators were denied “full access to information obtained through FISA,” according to the DOJ, and criminal and intelligence personnel were prevented “from coordinating their parallel investigations.” Post-Patriot, once the wall was down, the Tampa prosecutors accessed information “which existed in the FBI’s intelligence—but not criminal—files” and used it “to document the decade-long conspiracy that is alleged.”
Eager to find similar prosecutorial applications for information gleaned in terrorism and intelligence investigations, Attorney General John Ashcroft asked U.S. Attorneys after Sept. 11 to review almost 4,500 intelligence files, and the DOJ reported to the House Judiciary Committee in May that “evidence or information from this review has been incorporated in numerous cases.” Again, this allows prosecutors free range over materials obtained without a traditional warrant.
Would you know if Section 218 had been used on you? Only if you were later prosecuted using information gathered pursuant to a FISA warrant. Then you’d have the opportunity to try to suppress that evidence in a regular court proceeding.
Sunsets in 2005: Yes.
Prognosis: Last year, in a dramatic refusal to grant a DOJ request, the FISA court declined to implement the Patriot provision allowing for information sharing between prosecutors and investigators. But in November 2002, the secret FISA appeals court, which had never before been convened, found that the lower FISA court had erred in refusing to lower the wall between prosecutors and investigators. Only the government had been represented at oral argument, and only the government has the right of appeal under the law.
Enough to get you through a cocktail party: FISA was a constitutional “bargain” struck by a Congress concerned that the Executive branch needed some special leeway for foreign intelligence surveillance without undermining American criminal procedures as laid out in the Constitution. Broadening FISA so that it may be used against Americans, with searches initiated by the prosecutorial arm of the government, against ordinary criminals, subverts that bargain.
Section 213 aka “Sneak and Peek-a-boo”
Section 213 is another extremely controversial part of the Patriot Act, engendering protest from across the political spectrum. By allowing the state to rummage first and let you know later (sometimes much later), the act upends the traditional requirement that the state advise you in advance that you are being searched.
What it does: “Sneak and Peek” warrants extend sneak-and-peek authority from FISA searches to any criminal search. This allows for secret searches of your home and property without prior notice.
The law before and how it changed: Police used to have to “knock and announce” their intention of searching before executing any warrant. This gave the person being searched advance notice and a clear picture of what authorities were looking for. In 1978 FISA changed the law, allowing the FISA court to authorize sneak-and-peek warrants but only in cases where “foreign powers or their agents” were suspected of terrorism. The Patriot Act expands the use of these warrants if “immediate notification of the execution of the warrant may have an adverse result.” Under Patriot, such warrants are no longer limited to terrorism investigations but now extend to include any criminal investigation at all. Moreover, the act requires only that notice be given of the search or wiretap “within a reasonable period of its execution,” which may be extended by the court for “good cause shown.”
Supporters of the act argue that courts have always allowed officers to delay notification of a warrant if knowledge of the warrant would risk witness intimidation, the destruction of evidence, the impossibility of prosecution, or flight of the suspect. And the Supreme Court has held that these warrants are constitutional. Ashcroft also contends that the act limits the use of sneak-and-peek warrants to specific circumstances, so that its use might actually decline. But it’s undeniable that the government can almost always argue that later notification would be helpful. And because the standard under 213 is low, sneak-and-peeks will be authorized anytime notification jeopardizes an investigation. Since few criminal suspects really help the state during searches, this looks to be an exception that might swallow the rule. And ultimately, the best check against the police ransacking your property indiscriminately (rather than sticking to the particulars of their warrant) continues to be your glowering presence nearby.
How it’s been implemented: The Department of Justice reported to the House Judiciary committee in May that it had “requested a judicial order delaying notice of the execution of a warrant under section 213 forty-seven times, and the courts have granted every request.” Courts can also permit seizure of tangible property if there’s “reasonable necessity” for doing so; they’ve granted seizure requests on 14 occasions and rejected only one request, ruling that “photos of the relevant items would be sufficient.”
The delays in notification have been of varying durations, some as short as one day, some as long as 90. The DOJ can request extensions of these periods repeatedly and indefinitely, and it has so far done so 248 times. Some courts have also “permitted delays of unspecified duration lasting until the indictment was unsealed,” according to the DOJ’s report.
Would you know if Section 213 had been used on you? Eventually—they do still have to tell you that you’ve been searched, although the law provides that the period of time may be extended indefinitely for good cause.
Sunsets in 2005: No.
Prognosis: In July 2003 the “Otter Amendment,” which would de-fund federal power to conduct sneak-and-peeks, passed the House by a vote of 309-118 The issue has yet to be taken up by the Senate, but the administration threatens to veto it should it pass.
In July 2003, Sens. Lisa Murkowski and Ron Wyden introduced a bill, Protecting the Rights of Individuals Act, that would provide, among other things, that sneak-and-peek authority only be available in the limited number of cases enumerated above (risk of flight, destruction of evidence, etc.). The act would also build in a reporting requirement for the attorney general.
Enough to get you through a cocktail party: Sneak-and-peek warrants are neither radical nor per se unconstitutional. However, what was a very limited exception for their use has now grown rather substantially. It’s hard to think of a situation in which a criminal investigation wouldn’t be better served by announcing the search or wiretap after the fact. And if that’s the new rule, “knock and announce” is dead.