OVERVIEWS

Constitutional and Legal Issues

By Topic

Included here:

1. Foreign Intelligence Surveillance Act

a. FISA Generally

b. FIS Court

2. Intelligence Identities Protection Act

3. Intelligence & Law Enforcement

4. Statement and Account Clause

5. Use of "Dirty Assets"

1. Foreign Intelligence Surveillance Act

a. FISA - Generally

Anderson, Judith. "Constitutionality of FISA." Vanderbilt Journal of Transnational Law 16 (Winter 1983): 231-259.

Petersen: "Legal background and implementation of the Foreign Intelligence Surveillance Act under Reagan."

Baker, Jeffrey L. "Domestic and National Security Wiretaps: A Fourth Amendment Perspective." International Journal of Intelligence and Counterintelligence 12, no. 1 (Spring 1999): 1-17.

"Throughout the twentieth century, a well-balanced process of coordinating electronic surveillance evolved out of both legislation and Supreme Court decisions."

Cinquegrana, Americo R. "FISA: A Reformist Success Story." Foreign Intelligence Literary Scene 8, no. 6 (1989): 1-2, 11-12.

Cinquegrana, Americo R. "The Walls (and Wires) Have Ears: The Background and First Ten Years of the Foreign Intelligence Surveillance Act of 1978." University of Pennsylvania Law Review 137, no. 3 (1989): 793-828. [Petersen]

Dillin, John. "Congress Quietly Debates Merits of Warrantless 'Spy' Searches." Christian Science Monitor, 31 Aug. 1994, 2.

U.S. Congress. Senate. The Foreign Intelligence Surveillance Act of 1978: The First Five Years. Report 98-660, 98th Cong., 2d sess. Washington, DC: GPO, 1984.

This report discusses, among other topics, the court challenges to FISA. In particular, see United States v. Falvey, 540 F.Supp. 1306, 1314 (E.D.N.Y. 1982); United States v. Megahey, No. 83-1313, 2d cir, 8 Aug. 1984; and United States v. Belfield, 692 F.2d 141 (D.C. Cir. 1982).

b. FIS Court

Under FISA, applications for what are essentially search warrants to conduct electronic surveillance within the United States of persons who are agents of foreign powers are heard by a special court comprised of seven Federal district judges designated by the Chief Justice. A three-member court of review hears appeals of denials of applications. The Intelligence Authorization Act for 1995 expanded the FISA procedures to physical searches. Fred F. Manget, "Another System of Oversight: Intelligence and the Rise of Judicial Intervention," Studies in Intelligence 39, no. 5 (1996): 43-50.

"The secret Foreign Intelligence Surveillance (FIS) Court approved 576 government applications for domestic electronic surveillance of suspected foreign agents last year under the Foreign Intelligence Surveillance Act (FISA) of 1978, up from 509 approvals in 1993, according to annual reports obtained from the Justice Department under the Freedom of Information Act.

"The integrity of the little-known FIS Court and its utility as an oversight body have been called into question because of the Court's failure to ever deny a single application for electronic surveillance. (The Court has approved a total of 8,130 surveillance actions between 1979 and 1994.)

"Government officials say the Court's 100% approval rate is due to careful pre-screening of applications in the executive branch, which they say eliminates the more questionable cases.... And in fact, Justice Department officials have been criticized recently by some in the intelligence community for refusing to forward certain proposed surveillance applications to the FIS Court....

"[I]n the wake of the Aldrich Ames case, Congress [has] expanded the scope of FISA to include, for the first time, physical searches as well as electronic surveillance.... The President implemented the revised law in executive order 12949 last February." Excerpted from Secrecy & Government Bulletin, Sep. 1995, put out by the Federation of American Scientists.

American Bar Association. Standing Committee on Law and National Security. "The First (and Last?) Published Opinion of the Intelligence Court." Intelligence Report 3, no. 12 (1981): 3-4, 6-10.

[Lamberth, Royce.] "FISA Court Judge Royce Lamberth Discusses Work of Court." National Security Law Report 19, no. 2 (May 1997): 1-2, 4-5.

Excerpts of remarks made 4 April 1997 to ABA Standing Committee on Law and National Security breakfast in Washington, DC. This was the first time a sitting FISA judge had spoken in public about the court. Judge Lamberth noted that all surveillance requests must "have the personal approval of the Attorney General." Even given that no application has been formally denied in recent years, the process has led to some applications being revised and others withdrawn prior to resubmission with additional information. Lamberth affirmed his belief that "the process is, in fact, working." The judge also commented on the Classified Information Procedures Act and his earlier association with the Clair George and Mohammed Ali Rezak cases.

2. Intelligence Identities Protection Act

American Bar Association. Standing Committee on Law and National Security. "Intelligence Identities Protection Act Signed Into Law by President." Intelligence Report 4, no. 7 (1982): 1-2, 12. [Petersen]

3. Intelligence & Law Enforcement

American Bar Association. Standing Committee on Law and National Security. "Attorney General Reno Addresses Intelligence and Law Enforcement." National Security Law Report 15, no. 11 (Nov. 1993): 1-6.

Excerpts from a speech to the Standing Committee on Law and National Security, 19 November 1993.

Heymann, Philip B. "Law Enforcement and Intelligence in the Last Years of the Twentieth Century." National Security Law Report 18, no. 1 (Winter 1996): 1, 4-12.

Since the end of the Cold War, law enforcement and intelligence communities "find themselves working on the same issues in the same areas of the world." This is a significant change from the past, and creates several issues by "the blurring of boundaries between the intelligence community and law enforcement."

Sommers, Marilyn B. "Law Enforcement Intelligence: A New Look." International Journal of Intelligence and Counterintelligence 1, no. 3 (1986): 25-40.

This article deals with the subject of "law enforcement intelligence analysis" and why "strategic analysis" should be practiced by law enforcement agencies.

4. Statement and Account Clause

Elliott, Douglas P. "Cloak and Ledger: Is CIA Funding Constitutional?" Hastings Constitutional Law Quarterly 2 (Summer 1975): 347-385. [Petersen]

Warner, John S. "National Security and the First Amendment." In The First Amendment and National Security, ed. Paul Stephen. Charlottesville, VA: University of Virginia Press, 1984.

Halperin v. Central Intelligence Agency, 629 F.2d 144 (DC Cir. 1980): Halperin sought in an FOIA request disclosure of legal bills paid to private attorneys by the CIA. The Agency claimed exemption under section 102(d)(3) of the National Security Act which makes the DCI responsible for protecting intelligence sources and methods. Halperin argued that this violated the "statement and account clause" of the United States Constitution (Article I, Section 9, Clause 7). Judge Wilkey concluded for the Court that "the Statement and Account Clause does not create a judicially enforceable standard for the required disclosure of expenditures for intelligence activities." In addition, this "is a non-justiciable political question. Courts therefore have no jurisdiction to decide whether, when, and in what detail intelligence expenditures must be disclosed."

5. Use of "Dirty Assets"

Baugher, Thomas R. "Swans Swimming in the Sewer: Legal Use of 'Dirty Assets' by CIA." International Journal of Intelligence and Counterintelligence 9, no. 4 (Winter 1996/97): 435-471.

The author uses the March 1995 uproar surrounding the CIA's relationship with Guatemalan Colonel Julio Roberto Alpinez, accused of involvement in human rights violations in Guatemala, to survey the law and other possible controls over the CIA's use of foreign assets with less than a savory background. He compares some of these issues to those associated with the FBI's use of confidential informants.

Baugher concludes that the CIA "must be free to deal with anyone possessing valuable information." However, "Congress must be informed when the asset threatens American lives or interests"; it is, then, up to Congress to "try to pressure the president to forbid a clandestine relationship or terminate an existing one."

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