VIRGINIA JOURNAL OF LAW

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• Publication Date: March 6, 1987
• Content Type: MISC

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-1 . .;..JOURNAL OF `N
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'INTERNATIONAL LAW
Discretionary Asylum:
A Protection Remedy for Refugees
Under the Refugee Act of 1980 Deborah E. Anker
The Implications of Making the
Denial of Internationally Recognized
Worker Rights Actionable Under
Section 301 of the Trade Act of 1974 .... /an Charles Ballon
National-Security-and-Privacy:
OrGavernments-and-Individuals,
. Stephen A. Saltz burg
VOLUME 28
NUMBER
FALL 1987
Alien Departure Control?A Safeguard
for Both the Exercise of Fundamental
Human Rights and National Security
The Export Administration Act:
A Proposal for Judicial Review of
Temporary Denial Orders and Civil Sanctions
Recent Developments:
Foreign Sovereign Immunity?Amerada Hess Shipping Corp. v.
Argentine Republic
Gregorian a. licestio
Book Review by John E. Noyes
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Declassified and Approved For Release 2013/01/09: CIA-RDP90-00530R000300560018-4
COMMENTARY
National Security and Privacy: Of
Governments and Individuals Under
the Constitution and the Foreign
Intelligence Surveillance Act
STEPHEN A. SALTZBURG*
I. INTRODUCTION
One of the most familiar forms of constitutional litigation pits
the government as investigator or prosecutor against the individual
as suspect or defendant. The government claims a right to do
something, e.g., to seize or compel the production of documents,
and the individual claims a right to refuse on the basis of some
constitutional provision, usually grounded in the fourth or fifth
amendment.' Federal and state courts ultimately resolve the com-
peting claims and announce a constitutional principle.' During the
last two decades, one set of competing claims has pitted the gov-
ernment's recognized interest in national security against individ-
? Class of 1%2 Professor of Law. University of Virginia. This Commentary was initially
presented to ? symposium on National Security and Courts sponsored by the Center for
1.8w and Natioruil Security at the University of Virginia School of Law.
I. See. e4.. Andresen v. Maryland. 427 U.S. 46.1 (19761 (concluding that seizure of records
violated neither fourth nor fifth amendment): Boyd v. United States. 116 US. 616 (lM)
(finding subpoena to be an unreasonable search and potentially incriminating).
2. Most claims of national security and foreign intelligence gathering are resolved by fed-
eral courts, as the cases cited hereinafter indicate.
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130 VIRGINIA JOURNAL OF INTERNATIONAL LAW (Vol. 28:1
ual assertions of the right to be let alone. Specifically, the govern-
ment has asserted a right to engage in warrantless surveillance,
without even probable cause, to gather intelligence information.
Targets of the surveillance have urged that the government's ac-
tion violates the fourth amendment.
Congress has enacted a special statute, the Foreign Intelligence
Surveillance Act ("FISA" or "Act"); and created a special court,
the Foreign Intelligence Surveillance Court (FISC)," in an effort to
balance governmental needs and individual rights. But the statute
does not cover all situations in which the United States seeks intel-
ligence information, and the special court does not have jurisdic-
tion to regulate all intelligence gathering.? Even when the statute
applies and the court has authority to decide whether or not to
permit certain conduct, attacks on the statutory scheme focus on
the absence of protections that are provided when criminal, as op-
posed to intelligence, investigations are undertaken.'
Rhisleo?niMentary -concludes76-07th-e7Foreign --IffalligeTic-e-:-. Sur=
rveillanceTAct -a-TA-the -Faivitir_Intelligen-ce7SurveillifrW_--Court7are,.
gconstitutiorir-illy:sound-.? In-det-d3hey-provideLiarguably=greaterEpro,
tection-87--th-an7the-four-th-arnendment=requires, The Commentary
also concludes that the cases examining foreign intelligence gather-
ing that is not covered by the statutory scheme have generally
reached correct results. Although the conclusions reached support
the current approaches taken by all three branches of government,
the analysis of the Commentary is somewhat different from the
analyses that can be found in the decisions and the debates on the
appropriate alance=between=governmental=and=individual,
cinterestr
1. See, eg . United States v. Brown. 184 F.2d 416 (5th Cir.) (defendant unsuccessfully
complaining of warrantless wiretap). cert. denied, 415 US. 960 1)9731, United Stales v .
Clay. 430 F.2d 165, 171 (5th Cir. 19701 (court declining to permit defendant to know con-
tents of wire:ap made to gather foreign intelligence information). res'd on other grounds.
403 69'.. .1971).
4. Foreign Intelligence Surveillance Act (FSA). 50 U.S.(7. ?f 11401-11 (19S2).
5. Id !,1.-"..1 ?
6. See, e . Brown & Cinquegrana. Warrantless Physical Searches For Foreign Int,-ll,
genie Puri: Esecutive Order 12.333 and the Fourth Amendment. 3% Cath. U.L. Bev. Y:
11106i
? g . l?nited States v. Duggan. 74:1 F.2d 59 I2d Co. 191141; United State* v. Itellteld.
69/ F.2d 14! 'D.C. Cir. 19821; In the M?tter of Revork. 6:41 F. Supp 1002. 1012 ((?.11) Cal
7`,Z.? F.2d 566 (9th Cir. 1986).
s. See infra notes 66?93 and accompanying test
4 Sc,. ir.!!* notes 25-43 and accompanying test.
19871
NATIONAL SECURITY AND PRIVACY
131
clzhe-Gomm-entary-stiggests-that-The-balance-is:properly-reach-ed
onlythrdifferentiating-between=governmentTaction-that-is-directed
atTother=nations,.-Tovemrn-entsTorTforeign-forces-and-government
action-that-is-directed-atindivi4uals7genera1ly. The-fourth-Tam-end-
ment-is-not-designed-to-protect7foreigmnations=and-rtheir-officials
trom-U7SAntelligence7gatheringOt-is-clesigned-to-protect-individu-
c-alseneratyl.. This analysis is set forth at greater length in the sec-
tions that follow. It leads to the conclusion that-itTiziayTmatter
greatlyTwliether the executivels-_--engagethinlawi-en-fontand
related-investigations-on-the-on-e7hru-A or_imintelligen-ce7gath-e-ring
orrthe-_-other---hand. T_his_conclt-ibluritly7stated_means7that
rs-cirn-cexecutive-action-isiperalittunder-the-fourth-amendment.
Such an assertion will not and should not be accepted uncritically.
Any conclusion that government action, even action labeled "na-
tional security," is free from the restrictions of the fourth amend-
ment must be carefully examined, lest labels like "national secur-
ity" and "foreign intelligence" become talismans that auto-
matically trump assertions of individual rights.
Americans proclaim to the world a zest for freedom and a recog-
nition of the right of every individual to claim a private domain
into which government officials may not tread at will.'? In private
spaces individuals may think, write, share ideas, and experiment
without government interference. The President and the Congress,
even when they do not agree on the precise terms of the message,
speak with one voice when they condemn nations of the world that
deny individual freedom and that use public force to monitor and
to harass those whose views are not precisely in line with the party
wielding power.
It is probably the case that, with or without the Constitution
adopted in 1789 and the Bill of Rights that followed in 1791, many
of the freedoms that today are considered a matter of right would
be respected simply because they reflect the ideas that gave birth
to and nurtured a nation. But, essential or not, the Bill of Rights
serves as a constant reminder that certain claims to individual
freedom receive special recognition and helps to assure that the
, lo They may not tread ?I all in most instance* without showing some special need to do
? *#; , prohable cause to take a certain action?and most of the time they may not invade
private area,. isithout prior judicial authorization- ie.. ? warrant or court order approving
the intssion Ste. e e . Mincey Arizona. 43: t?S 18!.. :190 9!. i 1970,i
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132 VIRGINIA JOURNAL OF INTERNATIONAL LAW (Vol. 28:1
values that define a nation are not irrevocably compromised in the
course of dealing with the inevitable and real short-term problems
that every country must face from time to time throughout its
existence."
The oztion, that inevitably arises with respect to virtually all
claims of right is, kt=wh-atEpoint=d0-es-some-societal=interest
tpredominate-so--that-an-individual-right:mustTgiveLway? The-an,
swell' provided by our courts indicate that 'no:individual:el-aim:of
4ightis:scralisnlitte:that-i t-wi 11-never:yieldTeven-i n-degree-or-man--
cner -of-exerciseTto-the:greate r -good:13
Identifying the point at which claims of liberty ought to be de-
nied because of superior societal claims is neither an easy task nor
one that is likely to produce universal agreement. U.S. courts do
not accept governmental assertions that fundamental liberties
must be sacrificed because of societal exigencies without carefully
examining those assertions," and it is to be hoped that they will
continue to be vigilant in protecting liberty. But U.S. courts have
recognized limits on judicial expertise, especially in matters of in-
ternational affairs and national security that historically have in-
volved secrecy and have been allocated to the President and the
Congress." It is also to be hoped that the courts will continue to
11. These problems are most notable in war time. No case better illustrates the point
than Korematsu v. United States, 323 U.S. 214 (1944) (stating the strictest form of scrutiny
for racial classifications and then upholding government action which, in hindsight, appears
to have been something of an exaggerated response to the danger actually. perceived). Inter.
estingly. Koremauu had his conviction overturned by writ of coram nobis in Korematau v.
United States, 584 F. Supp. 1406 (N.D. Cal. 1984) (Government failed to disclose crucial
information to the COUTtS upholding conviction.). The Court of Appeals for the Ninth Cir-
cuit recently reached the same result in Hirabayashi v. United States. 828 F.2d 591 (9th Cir.
1987).
12. Thus, while providing extremely broad protection for all manner of SiWrCh, see. e.g.,
Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc.. 4'25 U.S. 748
(1976) (commercial speech); Buckley v. Yale*. 424 U.S. 1 (1976) (campaign spending), the
Supreme Court has never interpreted the language of the first amendment ?"Congress shall
make no law. . . abridging the freedom of speech .....?as meaning what it Nays. Congress.
in fact. may abridge the freedom to speak where advocacy of the use of force or of law
violations "is directed to inciting or producing imminent lawless action and is likely to incite
or produce such action.- Brandenburg v. Ohio. 395 U.S. 444. 447 119891 (per curiami. States
bound by the 14th amendment's incorporation of the 1st ?mendment are permitted to
act against speech when the danger is great enough Id -
13. See, e g . New York Times Co. v. United States, 403 U.S. 713 119:11 irejecting ? girt.
ernment effort to enjoin publication of ? classified study)
14. See Dames 6: Moore v. Regan, 453 U.S. 684 119811 (finding that Congress hied aut hot ?
used and approved certain actions by the President relating to assets and claims against
Irani
19871
NATIONAL SECURITY AND PRIVACY
133
recognize the special role and the unique expertise that the other
branches have played and developed in matters directly related to
the nation's security. Personal liberty has prospered, both inside
and outside U.S. courtrooms, because Americans have felt secure
as a nation. The same courts that have protected individual liberty
have permitted the other governmental branches to promote secur-
ity through intelligence gathering.
The-lawAh-at-hasTdeyeloped-with-respect-to-intellige_nce7gathtr-
finvis=not_71ififtrarily=_-judge,made. tExecutive7regulationshave-set
forth -7-gt.a ndfilds- to govern7ther:betraitioTrofTgovernment-officialsi!'
and the FISA has been an important development. But the last
word inevitably belongs to the judiciary, because it is asked to
measure the executive and congressional actions against the
Constitution."
Essentially, U.S. courts have given executive officials enormous
latitude in gathering foreign intelligence or national security infor-
mation from foreign governments and their agents. It does not ex-
aggerate the decisions to state that when United States officers en-
gage in what would surely be denominated searches and seizures
under any reasonable construction of the fourth amendment, as
long as they are directing their actions at foreign governments and
their agents they are not obliged by the fourth amendment to have
a traditional warrant or probable cause as it is usually understood.
To the extent that judicial supervision is required, it is as a result
of the FISA, not the Constitution. The judicial deference to the
executive branch narrows considerably, however, when officers di-
rect their efforts at domestic threats. Such efforts ordinarily re-
quire compliance with the usual fourth amendment requirements
of a warrant and probable cause.''
Although there has been criticism of the balance that has been
struck," it appears for the reasons stated below that,cith-oldin-g
th-C-FISA-a ncrizT:dgeirlicgaw_tire-exeru
cgress-wi th7.res p-e--crtaloreigIT4 n telligence-ga the riwth-e7judges-have,.
15 See. e g . Executive Order 12,333. 3 C.F.R. 200 (1982). reprinted in 50 U.S.C. app.
f. 4111 119s21 is-riling forth goals, duties and respiinsibilities relating to U.S. intelligence.
activities,.
16 Of coots.., the judiciary may defer t0 the judgments of other branches of government
in arriving at the last word, hut it regards its judgment as controlling. See United States v.
Nixon. 418 U.S 88:1 419741
17 See United States v United States District Court. 407 U.S. 29: 119711.
II' Eg . Note. Executive Order 12.'333 An Assessment of the Validits iif Warrantless NA .
tomtit Security Searches. I9s:( Dukr I. 3. 611
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134 VIRGINIA JOURNAL. OF INTERNATIONAL LAW
(Vol. 28:1
eneither-closed-theirleyesTUTVitimate-claims.3af-right-nor7givenzer-
leutive-officials-a-blank-checkmade-payable-tb1"-nationality:"
,Rathen--the-decisions-represent-a-fair--balance-of-individual7rightv.
an4-societa1L-requirements. But-they-have-not-satisfactorily=ex-
qtained-the-distinction-between-foreign-intelligence-gatherinuand.
domestic-law enforcement: Security-can-be-threatenedliwlawless
cdom--atic-actiiiities7wwell-as-by-foreign7activities. Thus, the ques-
tion is why the fourth amendment should not apply to foreign in-
telligence gathering to the same extent it applies to domestic activ-
ities. The answer cannot be that intelligence gathering and law
enforcement are mutually exclusive, for this is untrue. Nor is it the
answer that foreign intelligence gathering does not use traditional
forms of search and seizure, for search and seizure is a familiar way
of gathering intelligence information, as the FISA demonstrates.
The:liecisions,have=not7artimlated7-7the-realn-distint-tiWbetweefil
foreign=intelligence=gatbering----and-Aomestic=investigations. That.
rdistincticaviv-between7governments:and-in-divi-duals-as-targety,The
gases implicitly and correctly recognize that the-_-Bill7ofillights7pro5..
xects-individualsTnotgovernments:.When executive attention is di-
rected at the actions of governments, it is fairly examined under a
standard that differs from that used in the typical case of execu-
tive action directed at particular people acting in a nongovernmen-
tal capacity. This Commentary examines the fourth amendment
standards that the courts have developed and defends them pursu-
ant to the analysis suggested above. The Commentary begins with
an analysis of intelligence gathering from a purely constitutional
perspective and then examines the ways in which the FISA is con-
sistent with the constitutional perspective. Once the FISA has
been addressed, some concluding thoughts are offered about sur-
veillance falling outside the statute and about the relationship of
the courts, the Congress and the President.
II. THE FOURTH AMENDMENT AND PRIVACY.
A. Expectations of Privacy
In Katz v. United Stoics," Justice Stewart wrote for the Su-
preme Court as it found that a fourth amendment violation oc-
curred when federal agents, investigating gambling activities, lis-
tened to a telephone conversation through electronic monitoring
19. Km, v. l'nited States. 389 U.S. II: (196(.
1987) NATIONAL SECURITY AND PRIVACY
135
and thereby "violated the privacy upon which he [Katz] justifiably
relied while using the telephone booth . . ."" The words Justice
Stewart added are probably more quoted than any others with re-
spect to the fourth amendment:
[TI he Fourth Amendment protects people, not places,
What a person knowingly exposes to the public, even in
his own home or office, is not a subject of Fourth Amend-
ment protection. But what he seeks to preserve as pri-
vate, even in an area accessible to the public, may be
constitutionally protected."
Although the Court concluded that the agents violated the touith
amendment because they acted without a warrant, even though
their actions might have been totally proper with a valid warrant,
it left open the question "[w]hether safeguards other than prior
authorization by a magistrate would satisfy the Fourth Amend-
ment in a situation involving the national security . ."2 2
Since the Katz decision, the Supreme Court and lower federal
and state courts have struggled to decide whether a variety of gov-
ernmental conduct invades reasonable, legitimate or justifiable ex-
pectations of privacy." That such expectations may exist even
where the government makes a national security claim was defini-
20. Id. at 353.
21. Id. at 351-52 (citations omitted).
22. Id. at 358 n.23. Justice White filed ? two paragraph concurring opinion which ended
with the following sentence: We should not require the warrant procedure and the magis-
trate's judgment if the President of the United States or his chief legal officer. the Attorney
General. has considered the requirements of national security and authorized electronic aur.
VrilialICC as reasonable.- Id. at 364 (White. J.. concurring). Justice White cited his dissent in
the previous term'S decision in Berger v. New York. 388 US. 41. 112-18 119671 (While. J..
dissenting). One might conclude from the citation that he had made a previous point on the
earlier case. but the opposite point might be inferred from his Berger dissent. Justice White
reasoned in fiergcr that states have ? substantial interest in stopping organized crime. but
that interest would not excuse them from the warrant requirement for electronic eavesdrop-
ping in organized crime cases. He concluded that the warrant requirement had been satis?
tied. Id. at 118. If a warrant was required notwithstanding the substantial interest. arguably
a warrant should be required even where national security interests are involved. -lustier
1)..uglas. responded to Justice White's Katz opinion with his own concurrence. stating that
sou, and halooteur% warranted the same fourth amendment protections as .lahrf all?pacta.
Kat:. 3,49 .S. at 359.60 Wouglas. J., concurring,. The thrust of his opinion gee, to treating
all crintinal suspects alike. not to whether in ? noncriminal investigation an exception from
the ...arrant requirement might he reasonable.
2:1. Ser. e g.. Visited State*. Kmitt". 460 us. 26 419811 tut.? .of electronic tracking
Ireetwr. lot vrallatwel
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136 VIRGINIA JOURNAL OF INTERNATIONAL LAW
[Vol. 28:1
tively established in United States u. United States District
Court."
B. Domestic Intelligence Gathering: United States v. United
States District Court
The question whether the government may lawfully engage in
domestic intelligence gathering without a warrant reached the Su-
preme Court in United States v. United States District Court."
The case arose when a criminal defendant made a pretrial request
for information concerning electronic surveillance. The government
filed an affidavit by Attorney General John Mitchell stating that
he had approved wiretaps "to gather intelligence information
deemed necessary to protect the nation from attempts of domestic
organizations to attack and subvert the existing structure of the
Government.' Thus, the government conceded that there had
been electronic surveillance and that it had been authorized by the
government's highest ranking lawyer rather than by a federal judge
or court. The question that worked its way to the High Court was
whether the Attorney General's authorization was adequate to sat-
isfy the requirements of the fourth amendment. Justice Powell
wrote for the Court and observed that the federal wiretapping stat-
ute specifically stated that it was not intended "to limit the consti-
tutional power of the President to take such measures as he deems
necessary to protect the United States against the overthrow of the
Government by force or other unlawful means, or against any other
clear and present danger to the structure or existence of the Gov-
ernment." The Court reasoned that, in this language, Congress
had neither recognized nor prohibited warrantless surveillance by
()the President; "Congress simply left presidential powers where it
found them..."
In the end, the Court found the warrantless actions to be invalid.
? Justice Powell specifically noted, however, that "the instant case
requires no judgment on the scope of the President's surveillance
power with respect to the activities of foreign powers, within or
without this country."' The Court's concern was that the govern-
24 United States v. United States District Court. 407 'U.S. 297 0972).
25 Id.
26 Id. at 300 n.2
27 Id at 302 lipoiting 18 U.S.C. 4 2511(3)1.
28 Id. at 303
29 Id. at 3itS
1987) NATIONAL SECURITY AND PRIVACY
137
ment might be able to suppress lawful dissent were it permitted to
utilize an unchecked surveillance power." It found the "domestic
? security concept" to possess "inherent vagueness"31 and rejected
the government's contention that "internal security matters are
too subtle and complex for judicial evaluation.' It also rejected
an argument that confidentiality might be compromised by a war-
rant procedure. At the end of his opinion, Justice Powell reiterated
that the case did not involve "foreign powers or their agents." In
an unusual step, he added that the Court was not holding that the
same statutory procedures required by the federal statute gov-
erning electronic surveillance in criminal investigations would be
required for the gathering of intelligence information!' Thus, the
Court invited Congress to formulate specific procedures for intelli-
gence gathering, an invitation that Congress accepted when it en-
acted the FISA.
C. Foreign Intelligence Gathering
Following the Supreme Court's decision, lower courts were asked
to decide whether a warrant was required for intelligence gathering
directed at foreign governments and their agents. Their answer
was "no." But the holdings have been criticized."
Typical of the analysis offered by the lower courts is that of the
U.S. Court of Appeals for the Third Circuit in United States u.
Butenko." A majority reasoned that a warrant requirement might
seriously impair the ability of the executive branch to engage in
intelligence gathering and that the probable cause standard might
also have to be modified to recognize the legitimate need for intel-
30. Id. at 314.
31. Id. at :12o.
32. Id
33. Id. at 322.
34. Id.
35. See. e/.. United States v. liutenko. 494 F.2d 593 (3d Cir.) (en banci. cert denied sub
nom. Ivsniiv v. United States. 419 U.S. 881 (1941: United States v. Brown. 484 r'ld 418
(5th rift. cert. denied. 415 U.S. 960 (1973).
36, In United States v. Butenko. 494 F..2c1 593. 62(s-30. 635.36 diNsenting1.
Judge Gibbons dissented and argued that the claims of inherent presidential power were
esaggerated A plurality in Zweilmm v. Mitchell. 516 F 2d 594 (D.('. Cu. 195). cert. denied.
425 (1.5 944 11976). raised questions about every argument put forth by the government to
distinguish the Soprenie Court's holding with respect to-domestic surveillance
37. l'flited States Butenkn. 494 F.2d 593. 605(16 t34 Cir.) ten lianct. cert denied sub
nom Ivan.. United States. 419 U.S.. MI 119741
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138 VIRGINIA JOURNAL OF INTERNATIONAL LAW (Vol. 28:1
ligence gathering." In United States v. Truong," the Court of Ap-
peals for the Fourth Circuit found that the executive is more ex-
perienced than the judiciary in making foreign intelligence
decisions, the executive has superior expertise making these deci-
sions, and the decisions require flexibility." Thus, a warrant
should not be required as a prerequisite to foreign intelligence sur-
veillance." Neither these courts nor others that addressed the
question" adequately explained why the same arguments did not
apply to domestic intelligence gathering and why the Supreme
Court's rejection of the arguments made to it did not require simi-
!ar rejection of the arguments made with respect to foreign intelli-
gence gathering."
III. OF GOVERNMENTS AND INDIVIDUALS
. '
Mhe'"OYle--ktem--that---is-missing-from-Ahese-ropinions7appear$:--t:o-b__
anostirapkirtantmwhemlaiikir-iiitTelligertheriwiiderred:
Which7L'fie-ople..1-arcprotected-by-the-fourtiramendm-ent?-1!---MymnF
swer-is-that-":tttezr?people'Lincludes-e-agaiNst'zwhoin-the
ctInitetli:States-olaims-the-right-to-enforce-itsrlawslwh-emthe-United
Stateszendeavors:thara,42:15iftir-does:n6V-WItrde:for6gn
(-it-mem-merits -per -se --or -those:persons-who -are -the -a gent-orzslic h
egovernments--wh-61-v-th-ey-a,_ re7not-the-targets-ofdawz-enfurctment
Support for this answer can be found in thettasic-notionrof-s-oy:.
38. Id. at 60446.
39. United States v. Truong. 629 F.2d 908, 913-14 14th Cir. 19801, cert denied, 454 (*.S.
1144 (1982).
40. Id. at 913-14.
41. Id.
42 See. e.g.. United States v. /frown, 484 F.2d 418 I5th Carl, cert. denied. 415 1l .S !?I;11
419731. ?
43. The most persuasive attack on the arguments made to distinguish foreign and domes
in intelligence gathering was offered in a plurality opinion in Zweilion v. Mitchell. 51f. F".2r1
!0.44 (1).C. Cir. 19751, cert. denied. 425 U.S. 944 119761.
44. The amendment provides that "ltlhe right of the people to be secure in their persons.
houses. papers. and effecta, against unreasonable searches and seizures shall not he sio
Lord. . .- U.S. Const. amend. IV.
4!.. The typical situation arises when the government seeks to enforce its criminal hoss
ognonst suspects. Most searches and seizures, the subject of this discuss . occur in criminal
insestigations. Should the government seek to utilize %arches and seizures in aid of ,.n(ori.
utue roil laws. the fourth amendment also would apply as it does in iirdinno eases not in-
,olving foreign officials or governments. See. e.g.. C.M Leasing Corp v t'riited States. 42S.
I (Its 119771.
1987J ? NATIONAL SECURITY AND PRIVACY
139
Th-e-Xnite:17,States-claims:no:powerztodegislatc.-for-other
nations:4_1.11nd (tha:Uffitet-States-lecognizesmo:poweron:the:paTtW
other-nations:to-make-laov_erningits:officials:" The concept of
sovereign immunity is well-established and was recognized by the
framers of the Constitution." Foreign diplomats on U.S. soil make
the same diplomatic immunity claim that U.S. diplomats make on
foreign soil.49Bin-ce:th-e:basic7notion:ofth-efrBill-wf2Rightaiszton-e=
,strairrIthe;way-in-which-the-UniteckStates?1,--exercisesithe-power-to,
makezand:enforce-lawsrit-is-of:Iittle-relevance-when-the-Unitecl
(States-deals-with-anotherznation-ras-rw-sovereignragainst-whom-it,
does:n-0171C-ro-71-egistateTan-d- )--e-TRUW:lawm-akingzpower.
When nations are pitted agaifist other nations, the natural state
of affairs recognized throughout history is that each has an interest
in assuring that it is protected from the harm that the others
might cause. To read into the fourth amendment and the other
parts of the Bill of Rights restrictions on the actions of the U.S.
government would be to bind it to behave as no other nation in the
world is bound. Such a reading would place the United States in a
position in which it might well be uniquely vulnerable. Surely this
reading would not be warranted without some indication that the
framers intended to tie the hands of the nation they were creating
so that it would always be potentially disadvantaged in dealing
with other nations. Such evidence is difficult to find. Nation-s:have
engagedr-iii7apionage-from-time:immemorialranchspyingzhardly,
Lwas-urrknown-to-thhTS:fotght-.7England-for-freedon-rnd the
fact that the Constitution flowed from a war involving a foreign
? power makes it appear extremely unlikely that the founders of a
nation would have hobbled it at birth.
_ Thus,ca-rs_ensibie:readingrofmt-heJourthramendmentmand-the-re?
main-dtTrol:th-e7BillYfi :Rights-is-Ahat:they:protectindividuals-.when
the-governme_nt-mroves=toT-Inaker.-andr-rt-o7ren-foraws-governing
46. This is recognized in cases holding that constitutional restrictions on U.S. officials do
not bind foreign officials. See Saltzburg. The Reach of the Bill of Rights Beyond the Terra
Firma of the United States, 20 Va. J. 1nel L. 741 119801.
47. The hest example is ii treats that must be executed A treaty that is neither executed
nor self-executing is simply not the law of the United States
48. See generally Schooner Exchange v. MTaddon. Il L'S. C ('ranch) 116. 136-37 (1812)
(French vessel immune from U.S. jurisdiction).
49. See generally W. Bishop. International Law eases and Materiels 709-26 134 ed. 19711.
50 The fifty states also Cr.. restrained in the extent that the Bill of Rights is binding
upon them through the incorporation doctrine and the 14th amendment. See. e.g.. Duncan
v. Louisiana. :191 4'.5 1191int
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(themran ithatitheygProvidroteetiovitolfore ignigove pn me n ts.
Obviously, Ilietiple, comprise and run governments. Wh-enitintelli-
genceigatherinvfmusestupon-tthemiinitheiricapacitykasirepresenta-
tivesrofrafiforeigWwrnment-anoifourthomendment-iiphibition.is
trecogaied. In the words of Katz, these individuals have no reason-
able expectation that the United States will not act as all nations
of the world act to gather intelligence information that is deemed
essential to national security. This, I argue, is the key to the for-
eign intelligence cases.
Recognizing this as the key does not mean that the reasons given
by various courts for recognizing flexibility on the part of the exec-
utive to gather intelligence are without merit. Th-elex-eccitiVe1igrgi-
perioritath'illjtidiCial7inviletiiiiiiittillellifie'elligeTh=nre-dinfiii.
ikciiitall Rather,
those who would involve the judges more in regulating foreign in-
telligence gathering simply say that the judicial supervision would
not be too much of a drain on intelligence gathering. The problem
with the reasoning used thus far by the courts is that it is subject
to attack on the ground that it simply assumes that the dangers
involved in judicial supervision of all foreign intelligence gathering
are so great that an exception to the fourth amendment's general
requirements has been justified. Experience under the FISA sug-
gests that the reasoning is overbroad. Moreover, it makes the issue
turn on an empirical question, which arguably might receive differ-
ent answers at different times. My reading of the fourth amend-
ment is different; the amendment, in my view, does not reach in-
telligence gathering directed at foreign powers. Thus, I need not
argue about the dangers of judicial supervision at specific times or
about the burdens of obtaining warrants. The issue depends not on
empirical evidence, but upon an interpretation of the reach and
the purpose of the fourth amendment. There is, in short, nothing
in that amendment to prevent the U.S. government from choosing
from among the same range of options in dealing with foreign gov-
ernments as they choose from in dealing with the United States."
M. In making the choke, the U.S. government obviously may elect to forgo merourrs
which offend ? haste sense of dec?ncy. Moreover. the applicability (4 the fourth ?niendment
dor. not intrilv that the United States not or ought not to he hound to respici I I ft
tril notion. of international law
1987) NATIONAL SECURITY AND PRIVACY
141
IV. THE PERMISSIBLE RANGE OF CONDUCT
A. Self-Identified Foreign Officials and Agents
The approach set forth thus far leads to certain conclusions con-
cerning theilegitimaterxercisetoftexe-cutiveipoweraifftheTgathwirig
cofiforeignyifftolligEn-ct. It suggests that wht-f-il theithSnovernment
tista-ctiz-imith?alinsidertsideith-e-ilgt-iiWItStatesttolgatheriinWr
er_g-ia-miliformatioriordirectlyafromatoffitifildifilitale
wh-olidentffyithemselves_kesxagentsefinfore_ignmgo
4fourthvanTendmentmis1irrelevant,,In situations in which a person
proclaims that he or she is the officer or agent of a foreign nation,
the only question that matters is whether the fourth amendment
regulates our government's dealings with such a person in the pro-
? cess of seeking intelligence information. The negative answer pro-
vided here means that the government may engage in warrantless
action and that it may do so merely because it wishes to gather
foreign intelligence information; no probable cause or reasonable
suspicion is required.
Not only does this analysis make the United States equal with
the nations competing against it in the international arena, but it
also recognizes the practical difference between domestic and for-
eign intelligence gathering. In the domestic arena, even though the
government has no probable cause, it has the power to commence
grand jury investigations, to utilize undercover agents, to lawfully
monitor various activities, and to compel individuals and groups to
provide various information to regulatory officials. The power to
compel cooperation is nonexistent with respect to foreign agents
operating in their own land, and it is limited with respect to for-
eign officials who are permitted to enter the United States. Infor-
mal investigations may be commenced and undercover agents may
be utilized, but the difficulty in employing them in foreign camps
is obvious.
One reason why the fourth amendment does not unduly inhibit
the ability of the government to protect itself and its people in
domestic situations is that other lawful means of investigation ex-
S2. In this discussion. I do not attempt to identify precisely the limits of the term
.'agent." hut the use of the term in the VISA would not be objectionable insofar as it applies
I., persons who act in the United States. SO( S.C. 18014b011 119821. A broader reading of
agent to include anyone who claims allegiance to ? foreign government and works on its
hehalf would appear proper fur persons who are located outside the territory of the I'oiled
States Set. id I 11411111?r2i.
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ist. These means involve lawful compulsion as well as informal in-
vestigation. Where lawful compulsion is not an option and infor-
mal investigation is impractical, recognition of fourth amendment
protections would disable the government from protecting itself
from external threats to an extent that many people would find
unacceptable.
The fact that many people would prefer protection of their se-
curity to recognition of privacy rights cannot be determinative, of
course, since the fourth amendment's place in the Bill of Rights
signifies that it serves, in large part, to assure that the majority
does not ride roughshod over the interests of a minority. But the
rationale for enforcing the fourth amendment restraints upon ordi-
nary domestic investigations does not support the extension of
those rules to intelligence gathering directed at foreign nations and
their officials and agents.
?
B. Enforcing the Law Against Individuals
When the United States claims authority to make laws that gov-
ern individuals, including entities, and acts to enforce its laws, as
in United States v. United States District Court, the fourth
amendment is fully effective. This is not to say that warrants are
always required or that the standard for a warrant must be inflexi-
ble, for the Supreme Court has demonstrated that what is reason-
able under some circumstances might not be reasonable under
other circumstances;" it is only to say that the fourth amendment
would be operative and would require a showing of reasonableness
and appropriate judicial surveillance of governmental actions. Al-
though the suggestion has been made that people who are neither
citizens nor permanently connected with the United States are
outside The scope of the fourth amendment's protection," this ar-
gument is unconvincing." When the government asserts its author-
ity to regulate behavior and to enforce its regulations, there is no
persuasive reason why it should be permitted to avail itself of the
powers conferred upon it under the Constitution while excusing its
recognition of the limitations the same Constitution places upon
St Svv. Nes. Jersey v. T.I..0.. 469 (1$. 325 1198.51 truling that no %arrant was re?
gourd tor !./.arch student: that reasonable suspicion. not probable cause. was required,
.61 Sec Stiptian. Constitutional Limits on International Rendition of Criminal Siisiweis.
20 Vii .1 Intl I.. :77 119,1111.
Mi. '4.e Saltzburg. supra note 46. at 74: n.29.
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NATIONAL SECURITY AND. PRIVACY
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the exercise of such power. Since this point has been made else-
where," it will not be repeated here.
C. The Difficult Cases
The most difficult cases arise when the U.S. government seeks to
gather intelligence information by focusing on individuals who are
plainly not formally recognized as officials or agents of foreign gov-
ernments but who have some relationship with foreign govern-
ments. Suppose, for example, citizens of the United States with an
interest in Soviet law establish some relationship with Soviet citi-
zens." May the government engage in warrantless surveillance and
act without probable cause to monitor the exchange of information
between the two citizens groups?
Another example requires little imagination: a foreign student,
with family in another country, temporarily enters the United
States while maintaining contact with people from home. Is the
student protected by the fourth amendment from intelligence
gathering by our officials?
These examples are difficult, but they are not as difficult as they
become if one assumption is changed. As set forth, the examples
assume that the relationship between the relevant people and a
foreign nation is undisputed. If the assumption is that the govern-
ment is not certain about the relationship but believes that it is a
cover for intelligence gathering by another nation directed against
the United States, complications arise. Who decides whether the
government is correct? And what standard is to be used? These
questions are addressed after the hypothetical cases are examined
upon the assumption that the status of a person as a governmental
official or agent is known and certain.
If the United States were engaging in surveillance for the pur-
pose of enforcing civil or criminal statutes, there would be no ques-
tion that the fourth amendment would apply to these examples
under the analysis that has been set forth. Where, however, the
purpose of the government's actions is to gather intelligence, not to
enforce domestic law, there are three possible answers. One is that
the fourth amendment protects all individuals from unreasonable
searches and seizures; it does not specify that they are only pro-
54 Id
The American liar Associatoin has rstAbli?h.,4 ..asch a trial ...1141,p Sr.' Trial I 'Itservirr
l'net. .7.1 Alt A J.. Aug 19.7. at
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tected where the purpose of the search and seizure is to enforce a
domestic law rather than to gather information. Under this argu-
ment, the government may not search individuals within the juris-
dictional reach of the United States, except those who are self-
identified officials or agents of a foreign government acting in a
governmental capacity.
A second argument is that the fourth amendment protects
against unreasonable searches and seizures, and that it is not un-
reasonable to search where any connection between people within
the jurisdictional reach of the United States and a foreign govern-
ment can be demonstrated. Under this argument, the principal
thrust of the fourth amendment would be to protect people from
enforcement of domestic law against them without appropriate su-
pervision and a proper showing of cause. The argument would dis-
tinguish between domestic law enforcement and intelligence gath-
ering, deem all surveillance of people with foreign connections to
be part of intelligence gathering, and permit the surveillance with-
out warrants or probable cause.
Neither of these arguments is obviously wrong; either might
command support. Yet, on balance neither is compelling. The first
assumes that the fourth amendment contemplated and regulated
the intelligence gathering that is commonplace today, something
that is hardly self-evident. The second raises the danger of govern-
mental invasions of privacy at any point that the words "foreign
intelligence" are uttered. The specter emerges of surveillance
premised upon travel abroad, study of foreign languages, corre-
spondence with citizens of other countries, and membership in
groups with connections or branches abroad.
There is a third argument that falls between these two. This ar-
gument is that the fourth amendment governs searches and
seizures directed at individuals who are not identified agents of
foreign governments, but intelligence gathering directed at foreign
governments and their agents, which otherwise is outside the reach
of the amendment, is not automatically brought back within its
reach because there is a possibility that an investigation might in-
directly reveal information or communications by individuals pro-
tected by the fourth amendment. In other words, governmental
surveillance of a foreign student's telephone would not be permit-
ted without judicial supervision simply because he or she had some
connection with another nation--e.g., had traveled in that country
or studied there. But governmental surveillance of a foreign agent's
telephone would not be invalidated by a showing that someone
who is not an agent participated in a conversation.
1987)
NATIONAL SECURITY AND PRIVACY
145
The third argument explicitly concedes that some people who
have the right to fourth amendment protection may be indirectly
subjected to government surveillance, and that this might happen
without these people having any reason to believe that they are
opening themselves to indirect snooping. The fact is, however, that
the Supreme Court has held this risk may be imposed in t domes-
tic context: a person whom the government could not search may
be caught up in a proper investigation of someone else." To reject
the third argument is to open the door to efforts by foreign govern-
ments to circumvent intelligence gathering by deliberately estab-
lishing ties with people protected by the fourth amendment in or-
der to make it difficult for the United States to engage in
intelligence gathering. This prospect is sufficiently disturbing that
the third argument is attractive notwithstanding its imperfections.
At this point, the two examples that began this subsection can
be reexamined. The American group with ties to Soviet lawyers
and the foreign student would receive the benefit of fourth amend-
ment protection. It is possible, however, that some of their actions
might be indirectly discovered by the U.S. government as a result
of surveillance of officials or agents of a foreign nation.
Thus far, the analysis has treated intelligence gathering and law
enforcement investigations as though they were independent and
unrelated, which is not always the case. Some cases consider the
situation in which a search begins as a foreign intelligence search
but at some point turns into a criminal investigation, at least in
part. United States o. Truong," for example, holds that certain
evidence seized after the primary purpose of an investigation had
shifted from intelligence gathering to evidence gathering had to be
suppressed as obtained in violation of the fourth amendment. It
would seem, however, that as long as there is a legitimate intelli-
gence aspect that would independently support surveillance, U.S.
officials act wfully when they continue their surveillance. Any ev-
idence thatThey seize and ultimately decide to use as evidence in a
case should be viewed as having been seized legally. Thus, like evi-
dence which falls into the hands of law enforcement officials as be-
58. See Scott v. United States, 436 U.S. 128, 140. reh'it dented. 438 US. 908 (198) (suit ?
In that agenta may have to monitor conversations to decide whether or not they are rele?
want to investigation).
59 United Steer, v Troon. 629 F. 2,1 908 14th Cir. 19801. cert denied, 4S4 l'.5 1144
119821.
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146 VIRGINIA JOURNAL OF INTERNATIONAL LAW [Vol. 28:1
ing in plain view," evidence which is discovered during valid intel-
ligence gathering should not be deemed to be illegally seized.
Where, however, intelligence gathering has ended, and law enforce-
ment has begun, the fourth amendment comes into play and the
usual doctrines governing warrants and probable cause are
applicable."
The questions raised at the beginning of this subsection concern-
ing the appropriate government approach when the status of an
individual as a foreign agent or official is ambiguous or unknown
remain, and they are not easily answered. For example, in the hy-
pothetical cases previously considered, if the government believes
that the American group or the foreign student actually is an agent
of a foreign power, what role does the fourth damendment play?
One answer is that the government must seek?erjudicial determina-
tion of agency, before it may assume that Se 'fourth amendment is
inapplicable. Support for this argument is found in many state-
ments by the Supreme Court to the effect that the warrant proce-
dure is preferred and that the presumption is that there should be
prior judicial supervision of police searches and seizures." A sec-
ond argument is that the government may act on the basis of its
judgment that the target is an agent, but that the government will
be found to have violated the Constitution if it turns out that its
judgment was wrong." Support for this argument can be found in
doctrines like the automobile exception to the warrant require-
ment, which permits officers to search an .automobile if they be-
lieve there is probable cause that evidence is contained therein." If
the officers are wrong and probable cause does not exist, they act
improperly, but they are permitted to make the cause judgment in
the first instance. Only later may a court review the officers' judg-
ment. It is difficult to prove that either argument is more persua-
sive than the other.
68. E.g.. Washington v. Chrisman. 455 U.S. 1 (1982).
61. Since the adoption of the FISA. federal courts have disagreed over the continuing
validity of Truant. Compare United States v. Falvey. 540 F. Supp. 1306. 1314 (E.1).N.V.
19$21 with United States v. Nlegehey. 553 F. Supp. 11641 (E.D.N.V. 1982). aird, 7'.!9 F.24
1444 124 Cir. 19831
62. See. e.g.. Moiety v. Arizona. 437 U.S. 385 119-40.1rejecting murder scene exception to
warrant requirement,.
61 A question might arise as ill whether the Constitution would require a remedy if the
government's judgment was wrong. hut was a good faith error. Cl. United States v. Leon.
46n U.S. w97? reh'g denied. 46$ U.S. 1250 119841.
E it.. elianileers v. ..... net.. 199 U.S. 42. !eh', denied. 400 U.S. 856 11970i
19871
NATIONAL SECURITY AND PRIVACY 147
Prior to the adoption of the FISA, the second answer would have
been consistent with the behavior of U.S. law enforcement agen-
cies." The FISA made the first answer more descriptive of how the
U.S. government behaves at the present time, at least within the
United States. With this background, an examination of the FISA
is instructive.
V. THE FOREIGN INTELLIGENCE SURVEILLANCE ACT
The.:-_-FISA-"?regulates-L-electronicrsuryeillancei?which?is7ratber
cbtoifd ITdefined;rtas--it--pertainsztoloreignintelligenzelmformation
gatliiiiiiivitliiir=th-eTUwite-d7States. Certain statutory definitions
are of great importance to this discussion. The term "foreign
power"s? is defined to include any foreign government or compo-
nent thereof,'" any faction of a foreign nation," an entity openly
acknowledged by a foreign government as under its direction," a
group engaged in or preparing-for international terrorism," a for-
eign-based political organization that is not substantially com-
posed of United States citizens or aliens's admitted for permanent
residence, and an entity directed and controlled by a foreign gov-
ernment.' The term "agent of a foreign power" includes any per-
son, other than a citizen or alien admitted for permanent resi-
dence, who, inter alia, acts in the following capacities: as an officer
or employee of a foreign power or terrorist group, for or on behalf
of a foreign power who engages in clandestine intelligence activities
in the United States against this country's interests and who en-
65. MOM of the time that law enforcement agencies rely on exceptions lii the warrant
requirement or to the requirement of probable cause, they act without seeking any prior
judicial ruling. They are sustained if their judgment was correct, and they may lose evidence
or be subject to suit if their judgment was incorrect.
66. 50 U.S.C. if 1801.11 (1982).
67. Id. ? 18014011 ).(4)
68. Id. ? 1801(a).
69. See id. ? 1801(?1(1).
70. See id. ? 1801481(2).
71. See id. ? 1801(0(3).
72 See id. ? 16011?1(4). This definition of a foreign power appears to Ire consistent with
the reasoning offered herein for finding that foreign powers are outside the reach of the
fourth amendment.
73. See id. IOC/Halal. The Act alto defines an unincorporated association that has a
suIKtantial number of citizens or aliens admitted for permanent residence as ? "United
States person Corporations incorporated in the United States. except one which qualities
Isndrr the fweign power definition. also are within the definition Id 16111
:4 See id ?
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gages in or aids such activities, or as a person who engages in vari-
ous forms of clandestine intelligence activities that may involve or
further criminal acts, sabotage or terrorism."
TlielgAal%fil5lithesIthefFIISC promrwh ichrsevenOederobLdigtfia
judgesTs-ervelrotatingitermeZdtrauthorizesAhe
applywtofthercourtyforiapprovalroftlectronicfsuran ore for -
eignvintellipnctVitheringfwithimtheitlJni thdiStates .7" Therefore
kti.WAttypesigoloordFrOWth?Oklifferetic7eithelbutturningfron
whetheratheitargetrofithasurveillancexisvanfacknowledgedwforeign
power:"
When surveillance of unacknowledged foreign powers or agents
is sought, each application must include the name of the federal
officer making the application, Et statement showing that the Presi-
dent has delegated to the Attorney General the authority to ap-
prove such applications and that the Attorney General has exer-
cised this authority, the identity or description of the target, and a
statement of facts that support the applicant's affirmation that the
target is a foreign power or an agent thereof." Moreover, the appli-
cation must additionally state the proposed "minimization" proce-
dures, a detailed description of the nature of the information
sought and the types of communications to be monitored." An ap-
propriate official must certify that the information sought is for-
eign intelligence information within the meaning of the Act" and
that the information is unavailable through normal investigative
techniques." Finally, the application must state the past history of
applications against the target and information concerning the
means to be employed in carrying out the surveillance and its
duration."
If the target is an acknowledged foreign power and the premises
subject to the surveillance are owned, leased or exclusively used by
75. See id. S 1801(b).
7.1. Id. ? 1803(a).
77. Id. ? 1802.
714. See id. ? 1802141. The FISA permits orders to be issued upon ? showing that the
targeted premises are totally within the control of ? foreign power. Id. ? 1804thl. The term
-acknowledged foreign power- is used to identify these premises and targets that hold
thrm.elves out to be foreign powers under id. 5 1801141.
79. Id. ? 1804181.
Fe. Id.
141 Id. 5 18011e1.
kJ. Id. f N804tati7d
SA Id. f Duirts)(81.111i
19871 NATIONAL SECURITY AND PRIVACY 149
an acknowledged foreign power, much less is required by officials
seeking to engage in surveillance. Their application need not de-
scribe the nature of the communications sought, the type of com-
munications to be monitored, the means by which surveillance is to
be accomplished, or the types of devices to be _employed. The sur-
veillance also can be for a longer period than is otherwise permit-
ted by the Act."
In the typical case of an acknowledged foreign power, the court
need only find that the target is a foreign power or agent thereof
and that the facilities at which the surveillance is directed are or
will be used by the target." If, however, the target is a "United
States person," the judge who reviews the application must find
that the assertion of certain items is not clearly erroneous."
One important part of the Act permits the Attorney General to
approve electronic surveillance without a court order if he files a
certification with the courts' stating that the communications to be
intercepted are between acknowledged foreign powers or that "the
acquisition of technical intelligence, other than the spoken commu-
nication of individuals," is to be obtained from premises under the
"open and exclusive control" of such powers."
The PISA was the product of careful and lengthy congressional
investigation and debate." It seeks to provide some controls on in-
telligence gathering and to da.so in a way that plainly provides less
protection to foreign governments and their agents than to U.S.
citizens and aliens who have forged permanent ties with the
United States." In the clear case in which foreign governments ex-
change information, the Attorney General serves a reporting func-
fid. Id. ? 1804(b).
85. Id. ? 1803(a)(3).
Id. ? 180510151.
87. Id. ? 1802(a)(3).
68. Id. 5 180214AI/1AL A report to the House Permanent Select Committee on Intelli?
genre and the Senate Select Commitee on Intelligence is also required. Id. ? 1802(?111).
89. One alternative to judicially.approved intelligence gathering was a consensus of erecu-
live officers as to the desirability of surveillance. See Lacovara. Presidential Power to
Gather Intelligence: The Tension Between Article II and Amendment IV, 40 Law & Con-
temp. Probs. 106 (Summer 1976/.
90 It should be noted that even in the case of a student who is only temporarily in the
country. the Act requires that the judge who reviews a reqiiest find that the Attorney. Gen-
eral has concluded that the target is an agent of a foreign power and has stated reasons for
the conclusion. This is less protection than is afforded people whose ties are more perma-
nent. but it does require the Attorney General to produce information foe the court's
records.
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tion; there is no review by the court. The same is true when the
target is the premises of a foreign government and technical infor-
mation is sought. Where the target is an individual or group with
no formal affiliation with foreign governments, the U.S. govern-
ment bears a heavier burden of showing the relationship justifying
the surveillance and the need for it. The government must estab-
lish, for example, probable cause to believe that the target of sur-
veillance is an agent of a foreign power and, in making the deter-
mination, the court may not rely solely on activities protected by
the first amendment."
It appears that the FISA adopts an approach that is consistent
with the fourth amendment framework set forth above. This is not
to say that every aspect of the statute is constitutionally required,
but it does suggest that the drafters had an informed view of the
Constitution in mind in writing the law. The balance struck in the
Act appears to be both constitutionally and practically sound.
Were=there,no-EISA,-thei-executive,wouldnot-be:-barrecl-byAhe
fourtiramendment-from-engaging-in-the-same-conduct-thatis7regu
clated-hy-the7A-ct. (Hence, _the_judgiiientToffered-here is that_the
FIS-A--_-is7not_a_constitutional-necessitybut-it-ind ica tes-sensi ti vi ty,
af_the part of the-Congress ariththe-President-to-privacy_interests
tiff_the part_of_people_whose interests_should-he-eNrefully-weighat
In going beyond the minimum standard required by the Constitu-
tion, the FISA demonstrates that our standards for liberty are not
always set at the lowest possible level. We have the capacity to go
beyond constitutional minima, and we do so without judges having
any role in the effort except to assist in implementation of the pro-
tective scheme designed by the other two branches of government.
There have been attacks on the FISA and the operations of the
FISC. Not surprisingly, they have been unsuccessful." As one fed-
eral district judge recently concluded, there is no doubt that the
FISA goes beyond the cases recognizing that the President may
engage in foreign intelligence surveillance in providing procedural
safeguards never before imposed upon the executive branch."
91. MI U.S.C. IflOSti4113) 119821.
92. See. e.g.. United States v. Dorgan. 743 F.2d 59 rid Cir. 19841. United States v. Bet?
held. 692 F2d 141 (D.C. Cir. 19821.
93 In the Matter of Kevork. 634 F. Supp. 1002. 1012 (C.O. Cal. 19,IM. .Id. MRF. .2(1 SCA
'9th 19Atil.
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NATIONAL SECURITY AND PRIVACY
VI. CONCLUSION
151
The FISA does not cover all forms of intelligence gathering in
the United States. It omits mention of warrantless physical
searches, for example." Filling the gap, Executive Order 12,333"
delegates to the Attorney General the power to approve the use "Or
intelligence purposes, either in the United States or against a
United States person abroad, any technique for which a warrant
would be required for law enforcement purposes. Before approving
surveillance, the Attorney General must find probable cause to be-
lieve that the technique is directed against a foreign power or an
agent of a foreign power.
There has been debate over the validity of the order." The anal-
ysis suggested here leads to the conclusion that the order meets
constitutional standards, since foreign powers and their agents are
outside the scope of fourth amendment protection. Once the Attor-
ney General finds probable cause to believe that surveillance is di-
rected at a foreign government, no warrant or additional cause is
constitutionally required before surveillance may be undertaken.
Obviously, Congress could bring additional surveillance tech-
niques, including warrantless searches, within the FISA. Alterna-
tively, Congress could free the executive branch from the burden
of complying with the FISA, completely or partially. There might
come a point at which Congress would impose burdens on the ex-
ecutive that the latter would find unacceptable, and the question
would be raised whether the President has such inherent power
that he could ignore a statutory obligation. The history of the
FISA and the needs of a nation suggest that it is more likely that
both Congress and the President will continue to recognize the
special needs of national security and will compromise on an ap-
proach to surveillance that provides appropriate protections with-
out threatening the security of the nation.
The analysis suggested by this Commentary leaves to the Presi-
dent and to Congress the determination of the extent to which the
United States will engage in all forms of intelligence gathering di-
rected at foreign governments and their agents. The conclusion
that the fourth amendment does not limit official governmental ac-
tivities directed at foreign governments and individuals acting on
94. For ? discussion of such searches. see Brown & Cinquegrans. supra note 6
EllefUllVe Order 12.333. 3 CF K. 200 1,19821. reprinted in SO U.S.C. app 101I I9X2i
96 E compare Brown & Cinque/rano. supra note 6 with Note. supra IS.tr IS.
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NATIONAL SECURITY AND PRIVACY
their behalf does not threaten the values that the amendment
protects.
The fourth amendment protects, inter alia, the "cherished pri-
vacy of law abiding citizens."" It affords a zone of privacy that
bars not only physical invasions but also snooping, particularly the
kind done with sophisticated electronic surveillance that invades
private conversations." But the Bill of Rights is not intended to
straitjacket the United States in its dealing with other sovereign
nations. Such nations are neither bound by the U.S. Constitution
nor protected by its provisions. Because governments consist of in-
dividual officers or agents, surveillance by one nation must be done?
through its agents and in the nature of things will be directed at
information generated or held by agents of other nations. Agents of
other nations stand in the shoes of the countries for which they are
acting and receive no protection from the fourth amendment
against U.S. intelligence gathering."
The history and operation of the FISA provide several lessons
with respect to intelligence gathering. First, arguments made by
the executive-branch in past cases that judges would be incapable
of supervising searches directed at intelligence gathering probably
were overstated. The FISC has operated with no apparent injury
to U.S. intelligence gathering. Second, the notion in some of the
decided cases'?? that any form of warrant requirement would be
insufficiently flexible and would interfere with necessary executive
actions is called into question by the FISA. Third, foreign govern-
ments and their officials and agents not only are on notice that
intelligence gathering may be directed at them by the United
States but also have not claimed that such intelligence gathering
violates their rights under U.S. law, international law, or informal
understandings of the proper scope of sovereign action.
The FISA covers activities in which other nations frequently en-
gage, probably without supervision by their domestic courts. It sig-
nifies that even in a domain as sensitive as intelligence gathering
97. United States v. United States District Court. 4417 U.S. 297. 313 i19721
9. Id.
99. Cf. Dreier v. United States. 221 U.S. 394 (19111 (ruling that corpiirate officer must
respond to subpoena for corporate records): Wilson v. United States, 221 U.S. 3411 (1911)
4ruling that privilege against self-incrimination does not 'mitre( against solitaa?na to corpo-
ration for feClOrdS),
11,1 See. e g.. United States v. Truing, 629 r.2d 90M. 913-14 I411% Cir. 19iitoi. cert. denied.
4!.4 U.S. 1144 119821.
153
the protection of individual privacy is important. The Act strikes a
balance that properly favors the privacy interests of individuals
who are not acting on behalf of foreign governments. It also recog-
nizes that intelligence surveillance of foreign governments and
those persons holding themselves out as their agents is no cause for
concern.
It will not always be easy to decide who should be treated as an
agent of a foreign government and who should be treated as an
individual protected by the fourth amendment. Hard questions
will arise whether or not there is a statute like the FISA that gov-
erns segments of foreign intelligence gathering. Before the FISA
was enacted, the Supreme Court observed, "No doubt there are
cases where it will be difficult to distinguish between 'domestic'
and 'foreign' unlawful activities directed against the Government
of the United States where there is collaboration in varying de-
grees between domestic groups or organizations and agents or
agencies of foreign powers."' These cases will arise in any inter-
national community in which communications travel the globe, in-
dividuals travel from country to country, and nations receive
within their borders ambassadors, consuls, and other representa-
tives of foreign States.
The case law that has developed demonstrates that hard cases
do not lend themselves to simple solutions. With or without a
FISA, judges would be called upon to determine the scope of any
constitutional protection to which individuals lay claim. The cases
have rejected simplistic arguments that any claim of national se-
curity or any attempt at intelligence gathering is reasonable and
permissible under the fourth amendment.'" They have also re-
jected equally simplistic arguments that foreign intelligence gath-
ering should be analyzed in exactly the same way as government
investigations directed at domestic organizations.t0'
As the line between official foreign action and individual action
becomes muddy, it becomes difficult to determine who is entitled
to fourth amendment protection and what form the protections
should take. The basic point of this Commentary is that the courts
should explicitly recognize what Congress and the President recog-
nized in the FISA: the fourth amendment is not a protection for
1.nitrd States v. United States District Court. 407 U.S. at 309 n.8.
102 Id at 3211.
1111 See sutira note
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foreign governments and intelligence gathering directed at them is
permissible without regard to warrants, reasonable suspicion, or
probable cause. When this is explicitly recognized, the common
sense and constitutionality of the FISA are more readily under-
stood. Instead of focusing on the wrong question?What kinds of
searches and seizures are reasonable when the United States seeks
foreign intelligence information?"4?it is possible to ask the right
questions: Who is properly treated as an agent or officer of a for-
eign government? And when is the U.S. government engaged in
gathering evidence for prosecution rather than in intelligence
gathering?
The FISA provides some kit not all the answers.'" Other an-
swers will be provided in cases that challenge actions taken pursu-
ant to the FISA or actions that fall outside the scope of the Act.
Reasonable people might well differ on how far the United States
should go in gathering foreign intelligence, especially when U.S.
citizens and permanent residents who are not security threats are
likely to be swept into a surveillance net. Conflicting interests will
always be obvious; there will be an interest in promoting and ex-
tending personal privacy, in a world with ever-increasing interna-
tional aspects, and there will be an interest in protecting national
security which might seem more fragile as a result of the ease with
which international borders are crossed in a variety of ways.
The purpose of national security efforts and foreign intelligence
gathering is, of course, to protect the freedoms which are the
hallmarks of U.S. law and life, including the freedom to be left
alone. But each effort to promote security poses some risk that it
will compromise the very freedoms it is intended to further. Secur-
ing freedom while protecting security is the goal. It requires careful
constitutional balancing, and careful constitutional balancing re-
quires a clear understanding of what is within and without the pro-
tection of the fourth amendment. Individual targets of law enforce-
ment activity are within; foreign governments are without. That is
the starting point. It explains the structure of the FISA and why
the Act strikes a reasonable balance. It also provides the first step
104. This is the wrong question because. for the reasons stated. the fourth amendment
does not control the conduct of the United States when it is clearly seeking intelligence (torn
a foreign government.
105. Under the FISA. the FISC must decide whether A pemon is an agent of a foreign
government. This decision might well be difficult.
1987]
NATIONAL SECURITY AND PRIVACY 155
in striking a balance in the future, whether by statute, executive
regulation, or judicial decision.
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