Index

Statement and Memorandum of

Clifford S. Fishman
Professor of Law
The Catholic University of America
Concerning S 2586 and S 2659
July 31, 2002

I thank the Committee for giving me the opportunity to testify today about these two bills.

S. 2586

S. 2586 is a useful proposal which closes a gap in FISA by permitting surveillance of an individual whom the Government can show came to this country to commit an act of terrorism,1 even if it lacks evidence connecting him2 to a foreign country, terrorist organization or other group.3 Even a "lone wolf" might use his phone or computer, for example, to obtain, from innocent people, the information or materials he needs to be able to kill, destroy, and disrupt. S. 2586 would make it easier for the Government to find out whether the suspect is in fact a terrorist -- and if so, to stop him, and identify his accomplices, if any.

As to its constitutionality: I can think of no theory why surveillance that would be lawful where two or more people are suspected, should be unlawful when an evil man is acting alone.4

S 2659

S 2659 is more problematic. Currently FISA surveillance is permissible only if the Government has "probable cause" -- the same quality of information required for a search warrant or to make an arrest5 -- that the target is an agent of a foreign power or international terrorist organization or group. "U.S. persons"6 would continue to be protected by the probable cause requirement, but only "reasonable suspicion" -- the same quality of information needed to stop someone temporarily, question him and frisk him for weapons7 -- would be needed to tap or bug or search a non-U. S. person.8

The bill appears to address the Zacarias Moussaoui case. As we now know, FBI field agents in the midwest suspected well before September 11 that Motissaoui was a terrorist and sought a FISA search warrant, but officials at FBI headquarters turned them down because they concluded the field agents lacked probable cause. If the legal standard had been reasonable suspicion, perhaps the FBI would have gotten the order -- and the outrage of September 11 might have been prevented.

And that is the first and main reason why, despite my qualms, I am for S 2569, because it could significantly help the Government interdict terrorism.

Still, I acknowledge the potential for substantial intrusion into privacy, and that some doubts exist about its constitutionality.

It is a well-established principle that people who are in the United States illegally or only temporarily enjoy somewhat less legal protection than citizens and green card holders.9 This supports the constitutionality of requiring less information (i.e. only reasonable suspicion) to authorize surveillance of such people than is required to surveil U.S. persons.

We must remember, however, that such electronic surveillance and physical searches inevitably would intrude into the privacy, not only of the "non-U.S. person" who is the target, but of many "U.S. persons" as well -- anyone the target talks to on the phone, shares space with or commumcates with by computer, depending on the kind of surveillance. Until now the law has not permitted that degree of intrusion without a search warrant (or "interception order") supported by probable cause.10 Thus, the proposal "boldly goes where no law has gone before."

C,Iifford S. Fishman 3 I support S 2659 for a second reason: it reduces the likelihood that courts will be tempted to "define probable cause down" to help fight terrorism. Theoretically, "probable cause" means the same thing -- a "fair probability" that evidence of wrongdoing will be uncovered -- regardless of what the authorities are looking for -- a single marijuana cigarette, a video cassette shoplifted from a local store, or evidence of a conspiracy to blow up buildings or poison an entire city. But it is simple common sense that a judge will view the Government's showing more liberally in the latter situation.11 (If there is anyone in the room who volunteers to be the judge who turns down a warrant that could prevent the next September 11, please raise your hand.)

But if judges take a more liberal approach to defining "probable cause" in terrorism investigations, this could spill over into probable cause determinations in a normal law enforcement context -- which might have a more serious impact on privacy than the creation of the narrow, tightly tailored exception to the probable cause requirement proposed in S. 2659.

I support S. 2659 for a third reason: I am confident that existing legal protections and practical, pragmatic considerations provide sufficient guarantees against excessive, wide-ranging invasion of privacy. The primary legal protection is FISA's "minimization" provision: investigators are required to minimize the interception, retention or distribution of evidence that does not reveal foreign intelligence information or evidence of crime. And from a pragmatic and practical perspective, the Government lacks the resources or the desire to engage in broad, wholesale surveillance of non-U.S. persons.

In sum, despite my reservations, I believe S. 2659 is a sound proposal and will ultimately be upheld as constitutional, because it is narrowly tailored to fit a compelling need, and because it passes the ultimate constitutional test: the surveillance authorized by the proposal is "reasonable" under the circumstances.

Thank you.


Background information

Electronic surveillance of communications for law enforcement purposes

A federal statute, 18 USC 2510 et. seq., protects the privacy of wire communications (telephone calls), oral communications (face-to-face conversations), and electronic communications (e-mails and other uses of computers to communicate). It is a crime for one person to tap or bug another's communications.

The same statute adapts traditional Fourth Amendment concepts to wiretapping and bugging by law enforcement officials. It permits law enforcement officials to obtain an "interception order" -- a specialized kind of search warrant -- to intercept a suspect's communications. Only a high official on the federal or state level may apply to a judge for such an order. The application must establish "probable cause" (discussed below) that the target "is committing, has committed, or is about to commit" one of a list of serious felonies, and that evidence of that crime will be obtained by intercepting communications on that phone, in that premises, or on that computer network. The application must also show that ordinary investigative procedures have been tried and failed, or are unlikely to succeed if tried, or would be too dangerous.

Foreign Intelligence Surveillance Act (FISA)

The Foreign Intelligence Surveillance Act ("FISA"), 50 USC 1801 et seq, adapts traditional Fourth Amendment concepts and Title III procedures to a very non-traditional situation, by spelling out the circumstances under which the Government may conduct electronic surveillance or surreptitious physical searches to obtain "foreign intelligence information" and to defend the nation against threats from other nations and from international terrorism.

"Probable Cause"

"Probable cause" is the traditional standard which the Fourth Amendment requires to justify the issuance of a search warrant or an arrest:

The right of the people to be secure, in their persons, houses, papers, and effects, shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fourth Amendment does not define "probable cause." The most elaborate statement the Supreme Court has made on the subject appears in Illinois v Gates, 462 U.S. 213 (1983), in which the Court commented on how a judge should decide whether police had established probable cause for a search warrant:

The task of the issuing magistrate is simply to make a practical, common-place decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. (Emphasis added.)

The Court referred to this as a "flexible, easily applied standard."

Thus, probable cause is less than "beyond a reasonable doubt," the standard of proof required to convict someone of a crime. It is also less, or at least different, than the "preponderance of the evidence" standard that applies in most civil trials. "Preponderance," which is sometimes defined as "more probable than not," applies to a trial which is held after each side has investigated the facts and prepared for trial. By contrast, the "probable cause" determination is made much, much earlier in a criminal case, well before the Government has obtained all of its evidence; in fact, the judge applies the probable cause standard to decide whether the Government is allowed to search for such evidence.

Reasonable suspicion

Unlike "probable cause," the phrase "reasonable suspicion" does not appear in the Fourth Amendment. The term derives from the first clause of the Fourth Amendment, which protects "The right of the people to be secure, in their persons, houses, papers, and effects, against unreasonable searches and seizures,... " In Terry v Ohio, 392 U.S. 1 (1968), the Supreme Court held that although a "stop and frisk" was both a "seizure" and a "search" protected by the Fourth Amendment, a stop and frisk could be permissible, even in the absence of probable cause. The "stop" (a temporary detention to investigate) was permissible so long as the officer "reasonably suspected" that a suspect was committing or about to commit a crime. A "frisk" -- a pat-down for weapons -- was permissible, if the officer also "reasonably suspected" that the suspect was armed.

The Court justified inventing and applying a lower standard because, although a stop and frisk is a significant intrusion into a person's dignity and privacy, it is far less so, in duration and intrusiveness, than a full, custodial arrest.

In Terry, the Court emphasized that the officer cannot base his suspicion on an "inchoate and unparticularized suspicion or hunch," but on "the specific, reasonable inferences which he is entitled to draw from the facts in light of his experience." In other words, the officer has to be able to specify the facts that aroused his suspicion, and to explain why, in light of his knowledge and experience as a police officer, those suspicions were reasonable.

"Reasonable suspicion" and FISA surveillance

FISA surveillance, which may involve prolonged surreptitious monitoring of communications (phone calls, face-to-face conversations, e-mails, etc.) or a physical entry and search of a suspect's home or office, is far more intrusive than a "stop and frisk." Congress could not pass a law authorizing the police to conduct that kind of surveillance to enforce the nation's criminal laws based on a mere "reasonable suspicion"; nothing less than probable cause would pass muster.

Nevertheless, I believe that using the "reasonable suspicion" standard to this narrow category of FISA surveillance is constitutional. The Supreme Court has long recognized that the Government has inherent power to do what is necessary to protect the nation and its institutions from foreign aggression and internal rebellion; the Court has held likewise with regard to the need to gather foreign intelligence information and combat espionage. U.S. v U.S. District Court (often referred to as the Keith case), the Court recognized the "elementary truth" that "unless Government safeguards its own capacity to function and to preserve the security of its people, society itself could become so disordered that all rights and liberties would be endangered." US. v. U.S District Court, 407 U.S. 297, 312 (1972). And the Supreme Court has deferred to the Executive and the Congress in assessing the degree of danger and the nature of the response necessary to meet it.

On the other hand, the Court recognized "the potential danger posed by unreasonable surveillance to individual privacy and free expression." Id. at 315.

Although the constitutionality of applying the reasonable suspicion standard to FISA surveillance is less than certain, I believe that the courts will uphold it.

Respectfully submitted,

Clifford S. Fishman
Professor of Law
The Catholic University of America
202-219-5026
Fishman@law.cua.edu