With most (if not all) the focus these days on bulk collection under Section 215 of the PATRIOT Act, Section 702 of FISA, or E.O. 12333, it is easy to forget that foreign intelligence surveillance within the United States still occurs under the what one might call the “classic FISA” regime.  Indeed, nearly 2,000 classic FISA applications are approved each year. As a quick refresher, under classic FISA orders–which are much more similar in-kind to Title III warrants than bulk collection orders under Section 215 or Section 702–the government must submit an application to the FISC to conduct electronic surveillance on a particular target within the United States to obtain foreign intelligence information.  The FISC then grants an order upon a probable cause showing that (i) the target is a foreign power or an agent of a foreign power and (ii) the electronic surveillance is directed at facilities/places used by a foreign power or an agent of a foreign power (see 50 USC §1805(a)).   The statute explicitly allows for the use of evidence derived from classic FISA surveillance in criminal prosecutions (§§1806(k) and 1825(k)).

Yesterday, in a case that received little national attention, we learned that the Fifth Circuit affirmed (full text of opinion) the life sentence of Khalid Ali-M Aldawsari, a Texas college student from Saudi Arabia who was convicted in 2012 of trying to build a bomb and allegedly was targeting, among others, former President George W. Bush and the Cotton Bowl (which, for any non-college football fans, is held annually in Dallas).  On appeal, Aldawsari challenged that his motion to suppress evidence gathered pursuant to a classic FISA order was improperly denied by the trial court. If you’ll remember back to 2002, the FISA Court of Review held in In re Sealed Cases that searches conducted pursuant to FISA orders were permissible under the FISA statute so long as a “significant purpose” of the surveillance was to obtain foreign intelligence information in order “to protect the nation against terrorists and espionage threats directed by foreign powers.”  The “significant purpose” test, as it’s been called, in turn is meet so long as the “government entertains a realistic option of dealing with the agent other than through criminal prosecution.”  Controversy regarding the “significant purpose” test aside, several circuit courts–the Fifth Circuit notably not included–have determined that there is no constitutional bar to the admission of evidence obtained pursuant to FISA orders in criminal proceedings, so long as the statutory “significant purpose” test is met. (Note: the Fifth Circuit in El-Mezain held that as a statutory matter such evidence is admissible but has yet to address the constitutional question.)

Interestingly, Aldawsari did not challenge the admission of evidence obtained from the FISA order on the grounds that the “significant purpose” test was not met or that the evidence should be constitutionally bared.   Instead, Aldawsari argued that the FISA order was improperly granted, speculating that the government did not make the requisite ex parte showing before the FISC that there was probable cause to believe that he was “an agent of a foreign power,” as required by FISA statute. However, his argument fell on deaf ears, with the Judges Reavley, Higginson, and Davis noting:

“Based on our own thorough review of the classified materials in camera, however, we find [Aldawsari]’s inference is incorrect.  As we did in El-Mezain, we conclude in this case that the FISA searches were properly authorized and that evidence collected during the FISA searches was properly admitted.  The FISC’s authorization of these searches was indeed justified by a showing of probable cause to believe that [Aldawsari] satisfied one of the definitions of “an agent of a foreign power” under 50 USC § 1801.  The objective of the searches, moreover, was not solely the criminal prosecution of [Aldawsari], but also the protection of the nation against terrorist threats . . . [T]hat is the end of the inquiry.”

In other words: game, set, match.  

So as debate surrounding the effectiveness of the Section 215 program or the Section 702 program continues, this case serves as a reminder that we do have other foreign intelligence surveillance authorities–in the form of the classic FISA regime–that have proven capable and effective at stopping (and prosecuting) potential terrorists and acts of terrorism.  And as we carefully consider what role, if any, a Special Advocate should play before the FISC, this is an example showing the ex parte “classic” FISA orders that the FISC issues each and every day in proceedings where an adversarial interlocutor would be unorthodox and unusual; and yet, the case still affirms that adversarial litigation over the propriety of FISC determinations is neither wholly foreign or unprecedented.  So while the Aldawsari case is neither dispositive, or arguably even terribly instructive, on many of the important questions surrounding bulk collection, it does remind us of the truly targeted (and unquestionably effective) surveillance authorities we utilize every day.