As stated in the previous article, there was secret government surveillance already prior to the PATRIOT Act. But there is one major difference between the two: the Pre-Patriot Act surveillance respected Fourth Amendment rights!

For many years, our legal system separated foreign intelligence-gathering from domestic criminal enforcement. However, under the USA PATRIOT Act, the distinction is significantly hazy.

Before we discuss the haziness, it would be worth noting how clear the distinction was prior to the USA PATRIOT Act becoming law. Before that, the law struck a fine constitutional balance regarding electronic surveillance. However, after the USA PATRIOT Act, that balance has been destroyed.

In 1978, the FISA (Foreign Intelligence Surveillance Act) established a court that is known as the FISA Court. This court had power to issue secret warrants, and the purpose of these warrants was to aid in intelligence-gathering, with the goal of preventing espionage and terrorism.

The statute made clear that the purpose of a FISA warrant authorizing surveillance was solely for gathering foreign intelligence. And in order to procure such a warrant, the government had to convince the FISA court that there was "probable cause" that the target to be put under surveillance was either a foreign power or an agent of a foreign power.

The contrast between this standard, and the standard in federal domestic criminal cases was stark. Under the Fourth Amendment, in federal domestic criminal cases, a warrant to intercept a communication or a search warrant must bes based on "probable cause" to believe that a crime has been or is being committed. If a prosecutor convinced a federal judge that probable cause did exist, a warrant would be issued in a domestic federal criminal case.

The contrast between FISA surveillance and surveillance in regular criminal investigations is stark as well. First of all, there is the secrecy: The target of FISA surveillance is never notified that they are being spied on. This contrasts markedly with a domestic criminal case, in which the defendant gets a copy of the warrant so that he can challenge its legality under the Fourth Amendment, which contends that, because "probable cause" was lacking, the fruit of the search could not be admitted as evidence in federal court.

Then, there is the lack of clear precedent. The FISA court never publishes its decisions and procedures, as other federal courts do. So unlike other federal courts, in the FISA court there is no way for defendants and their attorneys to know how the court interprets the legal standards it applies. Nor is there a way for them to argue that the court is departing from its own, or a higher court's, binding precedents. This is an important litigation tactic for federal criminal defense attorneys.

Finally, there is the lack of recourse. There is no clear way to challenge FISA-authorized surveillance; in fact the court doesn't even have a public address! This contrasts with federal criminal defendants who, again, may move to suppress the evidence resulting from a warrant that is not supported by "probable cause."

Part 3 of this series will appear later this week

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