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Law School Case Brief

In re Sealed Case No. 02-001 - 310 F.3d 717


"Foreign intelligence information" means information that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power, sabotage or international terrorism by a foreign power or an agent of a foreign power, or clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power. 50 U.S.C.S. §1801(e)(1).


Movant, the United States Government ("Government"), filed an application for a surveillance order with the Foreign Intelligence Surveillance Court ("FISA court"), pursuant to the Foreign Intelligence Surveillance Act ("FISA"), 50 U.S.C.S. §§ 1801-1862. The Government's application contained detailed information to support its contention that the target, a United States person, was aiding, abetting, or conspiring with others in international terrorism, and was thus an "agent of a foreign power" as defined in FISA. The FISA court authorized the surveillance, but imposed certain restrictions, such as, inter alia, barring law enforcement officials from making recommendations to intelligence officials concerning the initiation, operation, continuation or expansion of FISA searches or surveillances. The government filed a motion for review of the FISA court's order, contending that the restrictions contained in the surveillance order were neither mandated nor authorized by FISA.


Were the restrictions imposed by the FISA court required by FISA or the Constitution of the United States?




The United States Foreign Intelligence Surveillance Court of Review reversed the FISA court's orders to the extent that they imposed conditions on the grant of the Government's applications, vacated the new FISA Court Rule of Procedure 11—which pertained to required contents of FISA applications—and remanded the matter with instructions to grant the Government's applications as submitted. The court of review agreed with the Government that the restrictions imposed by the FISA court were not required by FISA or the Constitution. FISA, as amended by the Patriot Act, was constitutional because the surveillance it authorized was reasonable, the court ruled.

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