FISA’s Significant Purpose Requirement and the Government’s Ability to Protect National Security

By Scott J. Glick

Forthcoming.

In this article, Scott J. Glick, former Deputy Counsel for Criminal Matters in the Office of Intelligence Policy and Review and current Deputy Chief of the Counterterrorism Section, National Security Division at the Department of Justice, traces the history of the “significant purpose” amendment to the Foreign Intelligence Surveillance Act (FISA) that was adopted as part of the USA PATRIOT Act in 2001.  The article takes a fresh look at the legislative history behind the amendment (as well as its re-enactment in 2006) and analyzes a key Federal Intelligence Surveillance Court of Review decision that was handed down just nine months after the amendment was adopted.  That decision placed two important restrictions on the government.  First, the Court held that if the government’s primary purpose of the surveillance was criminal prosecution, it could only use FISA if it intended to prosecute an alleged terrorist or spy for a “foreign intelligence crime.”  Second, the Court held that the government could not use FISA, even when it intended to prosecute for a foreign intelligence crime, if that crime had occurred in the “past.”  This article examines the Court of Review’s decision and proposes legislation to remove both restrictions the Court of Review placed on the government.