Replies

In re: Sealed Case removed the Gorelick Wall, and mostly stands for the proposition that the Patriot Act is not required to obtain THAT (remove Gorelick Wall) effect. The case came up in discussion when the Senate failed to renew the USA PATRIOT Act, late last year.

The government makes two main arguments. The first, it must be noted, was not presented to the FISA court; indeed, insofar as we can determine it has never previously been advanced either before a court or Congress. That argument is that the supposed pre-Patriot Act limitation in FISA that restricts the governments intention to use foreign intelligence information in criminal prosecutions is an illusion; it finds no support in either the language of FISA or its legislative history. ...
Alternatively, the government contends that even if the primary purpose test was a legitimate construction of FISA prior to the passage of the Patriot Act, that Acts amendments to FISA eliminate that concept. And as a corollary, the government insists the FISA court's construction of the minimization procedures is far off the mark both because it is a misconstruction of those provisions per se, as well as an end run around the specific amendments in the Patriot Act designed to deal with the real issue underlying this case. The government, moreover, contends that the FISA courts restrictions, which the court described as minimization procedures, are so intrusive into the operation of the Department of Justice as to exceed the constitutional authority of Article III judges. ...
it is virtually impossible to read the 1978 FISA to exclude from its purpose the prosecution of foreign intelligence crimes, most importantly because, as we have noted, the definition of an agent of a foreign power if he or she is a U.S. person is grounded on criminal conduct.
It does not seem that FISA, at least as originally enacted, even contemplated that the FISA court would inquire into the governments purpose in seeking foreign intelligence information. ...
Nor does the legislative history cast doubt on the obvious reading of the statutory language that foreign intelligence information includes evidence of foreign intelligence crimes. To the contrary, the House Report explained:

[T]he term foreign intelligence information, especially as defined in subparagraphs (e)(1)(B) and (e)(1)(C), can include evidence of certain crimes relating to sabotage, international terrorism, or clandestine intelligence activities. With respect to information concerning U.S. persons, foreign intelligence information includes information necessary to protect against clandestine intelligence activities of foreign powers or their agents. Information about a spys espionage activities obviously is within this definition, and it is most likely at the same time evidence of criminal activities.

H.R. REP. NO. 95-1283 (hereinafter H. REP.) at 49 (1978) (emphasis added).
The government argues persuasively that arresting and prosecuting terrorist agents of, or spies for, a foreign power may well be the best technique to prevent them from successfully continuing their terrorist or espionage activity. The government might wish to surveil the agent for some period of time to discover other participants in a conspiracy or to uncover a foreign powers plans, but typically at some point the government would wish to apprehend the agent and it might be that only a prosecution would provide sufficient incentives for the agent to cooperate with the government. Indeed, the threat of prosecution might be sufficient to turn the agent. It would seem that the Congress actually anticipated the governments argument and explicitly approved it. The House Report said:

How this information may be used to protect against clandestine intelligence activities is not prescribed by the definition of foreign intelligence information, although, of course, how it is used may be affected by minimization procedures . . . . And no information acquired pursuant to this bill could be used for other than lawful purposes . . . . Obviously, use of foreign intelligence information as evidence in a criminal trial is one way the Government can lawfully protect against clandestine intelligence activities, sabotage, and international terrorism. The bill, therefore, explicitly recognizes that information which is evidence of crimes involving [these activities] can be sought, retained, and used pursuant to this bill.

Id. (emphasis added). The Senate Report is on all fours:

U.S. persons may be authorized targets, and the surveillance is part of an investigative process often designed to protect against the commission of serious crimes such as espionage, sabotage, assassination, kidnaping, and terrorist acts committed by or on behalf of foreign powers. Intelligence and criminal law enforcement tend to merge in this area. . . . [S]urveillances conducted under [FISA] need not stop once conclusive evidence of a crime is obtained, but instead may be extended longer where protective measures other than arrest and prosecution are more appropriate.

S. REP. NO. 95-701 (hereinafter S. REP.) at 10-11 (1978) (emphasis added).
Congress was concerned about the governments use of FISA surveillance to obtain information not truly intertwined with the governments efforts to protect against threats from foreign powers. Accordingly, the certification of purpose under section 1804(a)(7)(B) served to

prevent the practice of targeting, for example, a foreign power for electronic surveillance when the true purpose of the surveillance is to gather information about an individual for other than foreign intelligence purposes. It is also designed to make explicit that the sole purpose of such surveillance is to secure foreign intelligence information, as defined, and not to obtain some other type of information.

H. REP. at 76; see also S. REP. at 51. But Congress did not impose any restrictions on the governments use of the foreign intelligence information to prosecute agents of foreign powers for foreign intelligence crimes. Admittedly, the House, at least in one statement, noted that FISA surveillances are not primarily for the purpose of gathering evidence of a crime. They are to obtain foreign intelligence information, which when it concerns United States persons must be necessary to important national concerns. H. REP. at 36. That, however, was an observation, not a proscription. And the House as well as the Senate made clear that prosecution is one way to combat foreign intelligence crimes. See id.; S. REP. at 10- 11. ...
In sum, we think that the FISA as passed by Congress in 1978 clearly did not preclude or limit the governments use or proposed use of foreign intelligence information, which included evidence of certain kinds of criminal activity, in a criminal prosecution.
In Re: Sealed Case No. 02-001, 310 F.3d 717 (Foreign Int. Surv. Ct. Rev. 2002)
http://www.fas.org/irp/agency/doj/fisa/fiscr111802.html <- HTML
http://www.epic.org/privacy/terrorism/fisa/FISCR_opinion.pdf <- PDF
http://news.findlaw.com/cnn/docs/terrorism/fisa111802opn.pdf <- Alt. PDF

Case below (reversed by "In Re: Sealed Case") ...
http://news.findlaw.com/cnn/docs/terrorism/fisa51702opn.pdf