Memorandum for David S. Kris, Associate Deputy Attorney General: Re: Constitutionality of Amending Foreign Intelligence Surveillance Act to Change the 'Purpose' Standard for Searches [September 25, 2001]   [open pdf - 4MB]

"You have asked for our opinion on the constitutionality of amending the Foreign Intelligence Surveillance Act, 50 U.S.C. §§ 1801-1811 (1994 & West Supp, 2000 ('FlSA') so that a search may be approved when the collection of foreign intelligence is 'a purpose' of the search. In its current form, FISA requires that 'the purpose' of the search be the collection of foreign intelligence, 50 U.S.C. § 1804(a)(7)(B). We believe that this amendment would not violate the Fourth Amendment. It should be made clear at the outset that the proposed FISA amendment cannot cause a facial violation of the Fourth Amendment. Because 'a' purpose would include the current warrant applications in which foreign intelligence is 'the' purpose of the search, a significant class of valid searches would continue to fall within the new statutory language. It may be the case that some warrant applications - for example, those instances where criminal investigation constitutes an overwhelming purpose of the surveillance - will be rejected by the FISA court. In those situations, the FISA amendment would not be unconstitutional, so much as the Court would be construing the statute, according to the canon that statutes are to bread to avoid constitutional problems, so as not to require the issuance of a warrant that would go beyond the Fourth Amendment. In other words, the proposed amendment cannot violate the Fourth Amendment because it would simply allow the Department to apply for FISA warrants up to the limit permitted by the Constitution, as determined by the FISA court. Amending FISA merely gives the Department the full flexibility to conduct foreign intelligence surveillance that is permitted by the Constitution itself."

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