------------------------------------------------------------------------

     [Redacted Copy]

                                 No. 02-001

           IN THE UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE
                               COURT OF REVIEW

                               _______________

                               IN RE [deleted]

                               _______________

                               ON APPEAL FROM
          THE UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT

                               _______________

                         BRIEF FOR THE UNITED STATES

                               _______________

     JOHN ASHCROFT
     Attorney General

     LARRY D. THOMPSON
     Deputy Attorney General

     THEODORE B. OLSON
     Solicitor General

     DAVID S. KRIS
     Associate Deputy Attorney General

     JAMES A. BAKER
     Counsel for Intelligence Policy

     JONATHAN L. MARCUS
     Attorney Advisor
     Department of Justice
     950 Pennsylvania Avenue, NW
     Washington, D.C. 20530
     (202)514-2882

                            TABLE OF CONTENTS (U)

     TABLE OF AUTHORITIES

     JURISDICTION

     QUESTION PRESENTED

     STATEMENT

          I. STATUTORY FRAMEWORK

          II. THE FISA APPLICATION AND THE FISC'S ORDER IN THIS CASE

               A. The Foreign Counterintelligence Investigation

               B. The Criminal Investigation

               C. Coordination Between the Counterintelligence and
               Criminal Investigations

                    1. The March 2002 Procedures

                    2. The FISC's May 2002 Order

                    3. The FISC's May 2002 Opinion

     SUMMARY OF ARGUMENT

     ARGUMENT

          I. THE FISC ERRED IN USING "MINIMIZATION" PROVISIONS TO LIMIT
          THE PURPOSE OF FISA SEARCHES AND SURVEILLANCE AND
          CONSULTATIONS BETWEEN INTELLIGENCE AND LAW ENFORCEMENT
          OFFICIALS

          II. CONSULTATIONS TO COORDINATE LAW ENFORCEMENT AND
          INTELLIGENCE EFFORTS TO PROTECT NATIONAL SECURITY FROM
          FOREIGN THREATS CANNOT JUSTIFY DENIAL OF A FISA APPLICATION

               A. FISA May Be Used Primarily, or Exclusively, to Obtain
               Evidence for a Prosecution Designed to Protect the
               United States Against Foreign Spies and Terrorists

               B. FISA May Be Used Primarily to Obtain Evidence for a
               Prosecution if the Government Also Has a Signficant
               Non-Law Enforcement Foreign Intelligence Purpose

               C. The FISC Erred in Denying in Part the FISA
               Application in This Case

                    1. The Ban on "Direction or Control"

                    2. The Chaperone Requirement

          III. AS AMENDED BY THE USA PATRIOT ACT, FISA IS
          CONSTITUTIONAL

               A. FISA May Be Used Primarily, or Exclusively, to Obtain
               Evidence for a Prosecution Designed to Protect the
               United States Against Foreign Spies and Terrorists

               B. FISA May Be Used Primarily to Obtain Evidence for a
               Prosecution if the Government Also Has a Significant
               Non-Law Enforcement Foreign Intelligence Purpose

     CONCLUSION

     ------------------------------------------------------------------
                          TABLE OF AUTHORITIES (U)

                               [omitted here]

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           IN THE UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE
                               COURT OF REVIEW

                                _____________

                                 No. 02-001

                               IN RE [deleted]

                                _____________

                               ON APPEAL FROM
          THE UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT

                                _____________

                         BRIEF FOR THE UNITED STATES

                                _____________

                              JURISDICTION (U)

     This is an appeal by the United States from the partial denial of
     an application for orders authorizing electronic surveillance
     under the Foreign Intelligence Surveillance Act of 1978, as
     amended, 50 U.S.C. §§ 1801-1862 (FISA). The Foreign Intelligence
     Surveillance Court (FISC) (Baker, J.), which had jurisdiction
     under 50 U.S.C. §§ 1803(a) and 1822(c), entered its judgment, and
     provided a written statement of reasons for its decision, on July
     19, 2002. In accord with 50 U.S.C. § 1803(a) and Rule 6 of the
     Rules of the FISC, the United States moved for transmittal of the
     record, under seal, to this Court on July 24, 2002. This Court's
     jurisdiction rests on 50 U.S.C. § 1803(b). (U)

     Although the FISC's order is not styled as a "denial," but rather
     as a grant of the FISA application as "as modified," it qualifies
     as a "denial" for purposes of establishing this Court's
     jurisdiction. July 2002 Order at 9. As detailed below, the
     government's application proposed that the electronic surveillance
     be authorized on certain terms, and the FISC's order rejected
     those terms and imposed restrictions on the government's
     investigation. Thus, the government's application was denied in
     part. See, e.g. Mobile Communications Corp. of Am. v. FCC, 77 F.3d
     1399, 1403-1404 (D.C. Cir. 1996) (grant of station license subject
     to condition that is unacceptable to applicant is denial of
     license subject to judicial review under statute that permits such
     review when applications for license are denied; otherwise the FCC
     could "foreclose judicial review of a de facto denial by couching
     its decision as an approval subject to some intolerable
     condition").1 (U)

          1 To the extent any doubt remains as to this Court's
          jurisdiction, we ask the Court to rely on the All Writs Act,
          which provides that "[t]he Supreme Court and all courts
          established by Act of Congress may issue all writs necessary
          or appropriate in aid of their respective jurisdictions and
          agreeable to the usages and principles of law." 28 U.S.C. §
          1651(a). Where, as here, a lower court issues a decision
          denying effect to key provisions of a recently enacted
          federal statute, mandamus is appropriate. See, e.g., In re
          Sealed Case, 151 F.3d 1059, 1063 (D.C. Cir. 1998) (per
          curiam) (granting mandamus where right to it is "clear and
          indisputable" and "no other adequate means to attain the
          relief exist") (internal quotation marks omitted). (U)

                           QUESTION PRESENTED (U)

     Whether the FISC erred in denying in relevant part an application
     for orders authorizing electronic surveillance where a
     "significant purpose" of the surveillance is to obtain foreign
     intelligence information, 50 U.S.C. § 1804(a)(7)(B), and
     intelligence officers conducting the electronic surveillance
     intend to "consult with Federal law enforcement officers to
     coordinate efforts to investigate [and] protect against ***
     international terrorism," 50 U.S.C. § 1806 (k). (U)

                                STATEMENT (U)

     I. STATUTORY FRAMEWORK (U)

     The Foreign Intelligence Surveillance Act of 1978 (FISA) governs
     electronic surveillance and physical searches of foreign powers
     and their agents inside the United States. The statute establishes
     two special courts: The FISC, which is comprised of 11 district
     court judges appointed by the Chief Justice, and this Court, which
     is comprised of three district court or court of appeals judges
     appointed by the Chief Justice. 2 50 U.S.C. §§ 1803(a) and (b).
     The FISC has jurisdiction to grant or deny applications for orders
     authorizing electronic surveillance and physical searches under
     the procedures set forth in FISA, and this Court has jurisdiction
     to review the denial of any application made under FISA. Ibid., 50
     U.S.C. § 1822(b)-(d). 3 (U)

          2 As enacted in 1978, FISA provided for a FISC comprised of
          seven district court judges. The "Uniting and Strengthening
          America by Providing Appropriate Tools Required to Intercept
          and Obstruct Terrorism Act of 2001" (USA Patriot Act), Pub.
          L. No. 107-56, 115 Stat. 272 (Oct. 26, 2001), raised the
          number of judges from seven to 11, of whom no fewer than
          three must reside within 20 miles of the District of
          Columbia. (U)

          3 As enacted in 1978, FISA permitted applications for and
          orders authorizing electronic surveillance, but did not refer
          to physical searches. 50 U.S.C. §§1801-1811. In 1994, the
          statute was amended to permit applications for and orders
          authorizing physical searches. Pub. L. NO. 103-359, 108 Stat.
          3423, 3443 (Oct. 14, 1994), 50 U.S.C. §§ 1821-1829. The
          procedures governing FISA physical searches are similar to
          those governing FISA electronic surveillance. Although this
          case does not involve a physical search, we cite both the
          electronic surveillance and parallel physical search
          provisions in this brief. (U)

     Applications for court orders authorizing searches or surveillance
     under FISA are made to the FISC under oath by a federal officer
     with the approval of the Attorney General, the Acting Attorney
     General, or the Deputy Attorney General. 50 U.S.C. §§ 1801(g),
     1804, 1823. The application must identify or describe the target
     of the search or surveillance, and establish that the target is
     either a "foreign power" or an "agent of a foreign power." 50
     U.S.C. §§ 1804(a)(3), 1804(a)(4)(A), 1823(a)(3), 1823(a)(4)(A). A
     "foreign power" is defined to include, among other things, a
     "foreign government or any component thereof," and a "group
     engaged in international terrorism." 50 U.S.C. §§ 1801(a)(1), (4).
     The statute defines "agent of a foreign power" to include any
     person who "knowingly engaged in *** international terrorism ***
     for or on behalf of a foreign power," and any person "other than a
     United States person" -- i.e., someone other than a U.S. citizen
     or permanent resident alien -- who is a "member" of a group
     engaged in international terrorism. 50 U.S.C. §§ 1801(b)(1)(A),
     (b)(2)(C), (i). "International terrorism" is defined by FISA to
     require activities that (1) involve violent or dangerous acts that
     violate U.S. law (or would do so if committed here); (2) appear to
     be intended to "intimidate or coerce" a civilian population, to
     "influence" government policy through "intimidation of coercion,"
     or to "affect the conduct of government by assassination or
     kidnapping"; and (3) either "occur totally outside the United
     States, or transcend national boundaries" in various ways. 50
     U.S.C. § 1801(c). (U)

     Each FISA application must include a certification from a
     high-ranking Executive Branch official, such as the Director of
     the FBI, that the official "deems the information sought [by the
     search or surveillance] to be foreign intelligence information,"
     and that "a significant purpose" of the search or surveillance is
     to obtain "foreign intelligence information." 4 50 U.S.C. §§
     1804(a)(7)(A)-(B), 1823(a)(7)(A)-(B). FISA defines the term
     "foreign intelligence information" to include information
     necessary to "protect" the United States from espionage and
     international terrorism committed by foreign powers or their
     agents. 50 U.S.C. § 1801(e)(1). Each FISA application must also
     propose "minimization procedures" for the conduct of the search or
     surveillance. 50 U.S.C. §§ 1804(a)(5), 1823(a)(5), 1801(h),
     1821(4). (U)

          4 As originally enacted in 1978, FISA required a
          certification that "the purpose" of the search or
          surveillance was to obtain foreign intelligence information.
          The standard was changed to "a significant purpose" in the
          USA Patriot Act. See Argument II.B, infra. (U)

     An individual judge of the FISC reviews each FISA application
     following its submission. 50 U.S.C. §§ 1805, 1824. To approve an
     application, the judge must find that it establishes "probable
     cause" to believe that the target of the search or surveillance is
     a foreign power or an agent of a foreign power. Ibid. The judge
     must also find that the proposed minimization procedures are
     "reasonably designed *** to minimize the acquisition and
     retention, and prohibit the dissemination, of nonpublicly
     available information concerning unconsenting United States
     persons consistent with the need of the United States to obtain,
     produce, and disseminate foreign intelligence information." Ibid.;
     50 U.S.C. §§ 1801(h), 1821(4). Finally, where the target of the
     search or surveillance is a "United States person" -- a U.S.
     citizen or permanent resident alien -- the judge must find that
     the Executive Branch's certification that a significant purpose of
     the search or surveillance is to obtain foreign intelligence
     information is not "clearly erroneous." 50 U.S.C. §§ 1805, 1824;
     H.R. Rep. No. 95-1283, Part I, 95th Cong. 2d Sess. (1978), at
     80-81 [hereinafter House Report]. (U)

     If the judge grants the FISA application, he signs an order
     identifying or describing the target and the facilities or places
     to be searched or surveilled, and directing that minimization
     procedures be followed, among other things. 50 U.S.C. §§ 1805(c),
     1824(c). If the FISC judge denies a FISA application, he must
     "provide immediately for the record a written statement of each
     reason for [the] decision." 50 U.S.C. §§ 1803(a), 1822(c). Once an
     individual judge has denied an application, no other FISC judge
     may consider it; this Court is the only forum in which the FISC
     judge's decision may be reviewed. Ibid. There is no provision in
     FISA for a notice of appeal from the denial of an application;
     instead, "on motion of the United States, the record shall be
     transmitted, under seal, to" this Court. Ibid.; see FISC Rule 6.
     Thereafter, this Court may either affirm or reverse the FISC
     judge's decision; if this Court "determines that the application
     was properly denied," then it too must "provide for the record a
     written statement of each reason for its decision." 50 U.S.C. §§
     1803(b), 1822(d). The Supreme Court has jurisdiction to review
     this Court's decision by writ of certiorari. Ibid. (U)

     II. THE FISA APPLICATION AND THE FISC'S ORDER IN THIS CASE (U)

     A. The Foreign Counterintelligence Investigation. (U)

          [approximately two classified pages deleted]

     B. The Criminal Investigation. (U)

          [approximately two classified pages deleted]

     C. Coordination Between the Counterintelligence and Criminal
     Investigations. (U)

     The FISA application in this case stated that, upon approval of
     the FISC, the government would follow the coordination standards
     set forth in Intelligence Sharing Procedures adopted by the
     Attorney General on March 6, 2002. App. 1:2. 5 As detailed below,
     the Attorney General adopted those Procedures to implement the USA
     Patriot Act, which changed the standards governing coordination
     between intelligence and law enforcement officials under FISA. The
     new Procedures were submitted to the FISC on March 7, 2002, and
     were rejected in part and rewritten in part by the FISC in an
     order and opinion issued on May 17, 2002. App. 6. In the current
     case, the FISC likewise rejected the government's request to
     follow the March 2002 Procedures and granted the FISA application
     on condition that the government obey the FISC's May 2002 order.
     See July 2002 Order 6-7. The following paragraphs describe the
     main provisions of the March 2002 order modifying the Procedures,
     and the FISC's May 2002 opinion explaining the reasons for its
     order. (U)

          5 "App." refers to the Appendix filed with the FISA
          Application in this case, and is followed by a tab number,
          and where applicable, a document number, and/or a page
          number. (U)

     1. The March 2002 Procedures. The Department's March 2002
     Intelligence Sharing Procedures are designed to ensure that
     foreign intelligence (FI) and foreign counterintelligence (FCI)
     investigations "are conducted lawfully, particularly in light of
     requirements imposed by [FISA]," and to "promote the effective
     coordination and performance of the [Department's] criminal and
     counterintelligence functions." App. 1:2 at 1. They identify two
     important amendments to FISA made by the USA Patriot Act that
     authorize more effective coordination between intelligence and law
     enforcement officials. First, the Procedures explain, while prior
     law provided that "FISA could be used only for the ‘primary
     purpose' of obtaining ‘foreign intelligence information,'" the USA
     Patriot Act "allows FISA to be used for ‘a significant purpose,'
     rather than the primary purpose, of obtaining foreign intelligence
     information." Id. at 2 (quoting 50 U.S.C. §§ 1804(a)(7)(B),
     1823(a)(7)(B)). Thus, the Procedures explain, the Patriot Act
     "allows FISA to be used primarily for a law enforcement purpose,
     as long as a significant foreign intelligence purpose remains"
     (emphasis in original). Ibid. (U)

     Second, the Patriot Act "expressly authorizes intelligence
     officers who are using FISA to ‘consult' with federal law
     enforcement officers to ‘coordinate efforts to investigate or
     protect against' foreign threats to national security," including
     international terrorism. App. 1:2 at 2 (quoting 50 U.S.C. §§
     1806(k), 1825(k)). Under this authority, the Procedures explain,
     intelligence and law enforcement officers may exchange a "full
     range of information and advice" concerning their efforts to
     protect against international terrorism (and the other specified
     threats). Ibid. The Procedures further explain that robust
     coordination is permitted because the Patriot Act provides
     expressly that such coordination "‘shall not' preclude the
     government's certification of a significant foreign intelligence
     purpose or the issuance of a FISA warrant" by the FISC. Ibid.
     (quoting 50 U.S.C. §§ 1806(k), 1825(k)). (U)

     In keeping with that understanding of the USA Patriot Act, the
     Procedures generally permit the total exchange of information and
     advice between intelligence and law enforcement officials,
     emphasizing that "[t]he overriding need to protect the national
     security from foreign threats compels a full and free exchange of
     information and ideas." App. 1:2 at 2. Part II.A of the
     Procedures, which governs information-sharing, provides that
     prosecutors "shall have access to all information developed in
     full field FI and FCI investigations" that are conducted by the
     FBI, including investigations in which FISA is being used, "except
     as limited by orders issued by the [FISC], controls imposed by the
     originators of sensitive material, and restrictions established by
     the Attorney General or the Deputy Attorney General in particular
     cases." Id. at 2-3. The FBI's principal obligation is to keep
     prosecutors "apprised of all information" from such investigations
     "that is necessary to the ability of the United States to
     investigate and protect against foreign attack, sabotage,
     terrorism, and clandestine intelligence activities." Id. at 3. To
     implement these requirements, prosecutors are granted access to
     FBI files and memoranda. Ibid. 6 (U)

          6 These provisions, and the advice-giving provisions
          described in the next paragraph of the text, apply to the
          Department's Criminal Division and to a United States
          Attorney's Office in any case involving international
          terrorism. In espionage cases, the U.S. Attorneys receive
          information from and provide advice to the FBI as authorized
          by the Criminal Division. See March 2002 Procedures, Parts II
          and III. (U)

     Part II.B of the Procedures, which governs advice-giving, allows
     prosecutors to provide advice to the FBI about the conduct of an
     FI or FCI investigation, including advice about the use of FISA.
     App. 1:2 at 4. It directs the FBI, the Office of Intelligence
     Policy and Review (OIPR), which represents the Department before
     the FISC, and prosecutors to meet regularly, and as needed, to
     conduct consultations. Ibid. The Procedures explicitly permit
     consultations directly between prosecutors and the FBI, without
     OIPR present. Ibid. The Procedures describe the range of permitted
     consultations as follows:

          Consultations may include the exchange of advice and
          recommendations on all issues necessary to the ability of the
          United States to investigate or protect against foreign
          attack, sabotage, terrorism, and clandestine intelligence
          activities, including protection against the foregoing
          through criminal investigation and prosecution, subject to
          the limits set forth above. Relevant issues include, but are
          not limited to, the strategy and goals for the investigation;
          the law enforcement and intelligence methods to be used in
          conducting the investigation; the interaction between
          intelligence and law enforcement components as part of the
          investigation; and the initiation, operation, continuation,
          or expansion of FISA searches or surveillance.

     Ibid. (emphasis added). The Procedures explain that "[s]uch
     consultations are necessary to the ability of the United States to
     coordinate efforts to investigate and protect against foreign
     threats to national security as set forth in 50 U.S.C. 1806(k),
     1825(k)." Ibid. (U)

     2. The FISC's May 2002 Order. In its May 2002 order, the FISC
     accepted some aspects of the Department's March 2002 Procedures
     and rejected others. The FISC accepted in full the
     information-sharing provisions of the Procedures, Part II.A. See
     App. 6:2 at 2; App. 6:3 at 25. Thus, the FISC approved the
     Department's standards generally allowing wholesale dissemination
     of information from FI and FCI investigations to law enforcement
     officials, subject to specific limits imposed in particular cases.
     (U)

     However, the FISC rejected much of Part II.B of the Procedures,
     which allows law enforcement officials to give advice to
     intelligence officials. Instead of allowing consultation and
     coordination on "all issues" necessary to protect the United
     States from foreign threats to national security, the FISC held
     that prosecutors and intelligence agents may consult on the
     following matters, "among other things":

          [1] exchanging information already acquired; [2] identifying
          categories of information needed and being sought; [3]
          preventing either [the law enforcement or
          counterintelligence] investigation or interest from
          obstructing or hindering the other; [4] [preventing the]
          compromise of either investigation; and [5] [formulating]
          long term objectives and overall strategy of both
          investigations in order to ensure that the overlapping
          intelligence and criminal interests of the United States are
          both achieved.

     App. 6:2 at 2-3. (U)

     Notwithstanding that authorization to provide advice, however, the
     FISC imposed three limits on advice-giving. First, it held that
     law enforcement officials may "not make recommendations to
     intelligence officials concerning the initiation, operation,
     continuation or expansion of FISA searches or surveillances," and
     warned law enforcement officials not to "direct or control the use
     of FISA procedures to enhance criminal prosecution." App. 6:2 at
     3. Thus, for example, law enforcement officials may not nominate
     targets for FISA searches or surveillance. Nor may they recommend
     that an existing FISA search or surveillance be conducted in a
     particular way or seek particular information. (U)

     Second, the FISC instructed the FBI and prosecutors to "ensure
     that advice designed to preserve the option of a criminal
     prosecution does not inadvertently result in [prosecutors']
     directing or controlling the investigation using FISA searches and
     surveillances toward law enforcement objectives." App. 6:2 at 3.
     The FISC's approval of advice designed to "preserve" the option of
     a criminal prosecution, and its ban on advice amounting to
     prosecutorial "direction or control" of an investigation, led the
     government to file a motion for clarification. App. 5. The motion
     inquired whether the FISC intended to permit advice designed to
     "enhance," rather than merely to "preserve," a criminal
     prosecution, a distinction addressed at length in a major report
     on FISA that was the subject of extended discussions between the
     FISC and the government. See IV Final Report of the Attorney
     General's Review Team on the Handling of the Los Alamos National
     Laboratory Investigation, Chapter 20, at 721-734 (May 2000)
     (hereinafter AGRT Report); App. 2:2 at 7-8, 22-23. The motion
     asked the FISC either to delete the reference to "preserv[ing]"
     advice or to explain in more detail the scope of any ban on
     "enhancing" advice. The FISC did neither. Compare App. 4:1 at 3
     with App. 6:1 at 1-2, and App. 6:2 at 3. 7 (U)

          7 The language quoted in the text is from the FISC's May 2002
          order. App. 6:2. The motion for clarification (App. 5) was
          filed in response to nearly identical language in an order
          issued on April 22, 2002. App. 4:1. The May 2002 order was
          issued in response to the motion for clarification. See App.
          6:1, 2. (U)

     Third and finally, the FISC imposed a "chaperone" requirement,
     holding that prosecutors may not consult with intelligence agents
     unless they first invite OIPR to participate in the consultation,
     and that OIPR must participate unless it is "unable" to do so. If
     OIPR does not participate, the FISC held, it "shall be apprised of
     the substance of the meetings forthwith in writing so that the
     [FISC] may be notified at the earliest opportunity." App. 6:2 at
     3. The FISC also adopted a new rule to the same effect: "All FISA
     applications shall include informative descriptions of any ongoing
     criminal investigations of FISA targets, as well as the substance
     of any consultations between the FBI and criminal prosecutors at
     the Department of Justice or a United States Attorney's Office."
     FISC Rule 11. (U)

     3. The FISC's May 2002 Opinion. The FISC explained the reasons for
     its order in a lengthy opinion. At the outset, the FISC identified
     "the issue that is before this Court" as "whether the FISA
     authorizes electronic surveillances and physical searches
     primarily for law enforcement purposes so long as the Government
     also has a ‘significant' foreign intelligence purpose." App. 6:3
     at 4 n.1 (emphasis in original). However, the FISC expressly
     declined to address that issue, explaining that it would "not
     reach the question of whether the FISA may be used primarily for
     law enforcement purposes." Id. at 6 n.2. Instead, the FISC held
     that "[t]he question before the Court involves straightforward
     application of the FISA as it pertains to minimization purposes,"
     and explained that it had "decided this matter by applying the
     FISA's standards for minimization procedures defined in § 1801(h)
     and § 1821(4) of the Act." Id. at 4, 6 n.2. Thus, the Court did
     not significantly address or interpret the USA Patriot Act. 8 (U)

          8 The FISC's only significant reliance on the USA Patriot Act
          was to make the new procedures more restrictive than
          procedures that governed prior to the Act. Prior intelligence
          sharing procedures governed consultations between
          intelligence agents and prosecutors, but not consultations
          between intelligence agents and law enforcement agents. See
          App. 7. The FISC's order, however, applies at least in part
          to law enforcement agents because it uses the term "law
          enforcement officials" rather than "prosecutors." In response
          to a motion for clarification (App. 5), the FISC explained
          that "[t]he Court uses, and intended to use, the term ‘law
          enforcement officials'" in its opinion and order "in
          conjunction with the source and context from which it
          originated, i.e., the recent amendments to the FISA." App.
          6:1 at 2 (referring to 50 U.S.C. §§ 1806(k), 1825(k)). The
          FISC stated that "[t]he new minimization procedures apply to
          the minimization process in FISA electronic surveillances and
          physical searches, and to those involved in the process --
          including both FBI agents and criminal prosecutors." Ibid.
          (U)

     The FISC explained that it was relying on minimization standards
     because "the FISA's definition of minimization procedures has not
     changed, and [the March 2002 Procedures] cannot be used by the
     government to amend the Act in ways Congress has not." App. 6:3 at
     22. The FISC explained its conclusions as follows:

          Given our experience in FISA surveillance and searches, we
          find that these provisions in sections II.B and III [of the
          Department's March 2002 Procedures], particularly those which
          authorize criminal prosecutors to advise FBI intelligence
          agents on the initiation, operation, continuation or
          expansion of FISA's intrusive seizures, are designed to
          enhance the acquisition, retention and dissemination of
          evidence for law enforcement purposes, instead, of being
          consistent with the need of the United States to "obtain,
          produce, and disseminate foreign intelligence information"
          (emphasis added) as mandated in [FISA's minimization
          procedures, 50 U.S.C.] § 1801(h) and § 1821(4).

     Ibid. (emphasis added by the FISC); see also id. at 23, 25. Thus,
     the FISC concluded that the Department's March 2002 Procedures
     violated FISA's minimization standards because they authorized
     searches and surveillance "for law enforcement purposes" rather
     than "foreign intelligence purposes." Yet the FISC never explained
     the textual or other basis for this dichotomy between foreign
     intelligence and law enforcement, and it expressly declined even
     to consider whether FISA itself authorizes searches or
     surveillance primarily for a law enforcement purpose. (U)

                           SUMMARY OF ARGUMENT (U)

     1. The FISC's order in this case, and its May 2002 opinion and
     order, which substantially reject the Department's March 2002
     Intelligence Sharing Procedures, rest on a fundamental
     misapplication of FISA and the USA Patriot Act. The most striking
     aspect of the FISC's decision is its express refusal even to
     consider the meaning of the USA Patriot Act. App. 6:3 at 6 n.2. By
     relying solely on FISA's "minimization" provisions for its
     rulings, the FISC effectively held that the USA Patriot Act made
     no change in the Department's authority to coordinate between
     intelligence and law enforcement officials. Indeed, the FISC
     explained that it was modifying the Department's March 2002
     Procedures to "reinstate the bright line used in [the
     Department's] 1995 procedures, on which the Court has relied." Id.
     at 27. That holding was plainly wrong: The USA Patriot Act
     provides expressly for increased coordination and was clearly
     intended to alter the standards that previously governed such
     coordination. (U)

     The FISC's decision cannot be sustained as an application of
     FISA's minimization standards. Those standards require the
     government to follow procedures in conducting a search or
     surveillance that are "reasonably designed" to "minimize" the
     acquisition of nonpublic information concerning unconsenting U.S.
     persons "consistent with the need of the United States to obtain,
     produce, and disseminate foreign intelligence information." 50
     U.S.C. §§ 1801(h)(1), 1821(4)(A). Minimization procedures are
     designed to limit the acquisition, retention, and dissemination of
     information that is not otherwise subject to collection under
     FISA. They may not be used to prevent the government from seeking
     information that FISA clearly permits it to obtain, or from
     engaging in consultations that FISA clearly permits it to conduct.
     Accordingly, the FISC erred in relying on minimization as an
     independent check on the government's purpose for using FISA and
     coordination between intelligence and law enforcement officials.
     (U)

     2. The 1978 version of FISA provides, and the USA Patriot Act's
     recent amendments to the statute confirm, that is may be used to
     support law enforcement efforts to protect national security from
     foreign threats. In its original form, FISA authorized electronic
     surveillance for "the purpose" of obtaining "foreign intelligence
     information," which was (and is) defined to include information
     necessary to "protect against" specified foreign threats to
     national security, such as espionage and international terrorism.
     50 U.S.C. § 1801(e)(1). However, the statute has never prescribed
     the kinds of efforts, law enforcement or otherwise, that may be
     used to achieve that protection, other than to require that they
     be lawful. 50 U.S.C. §§1806(a), 1825(a). Indeed, FISA's original
     legislative history recognized that prosecution of spies and
     terrorists was one legitimate way to protect national security,
     and that FISA could be used for the purpose of obtaining evidence
     for such a prosecution. Thus, a prosecution designed to protect
     national security from foreign threats was not merely an
     incidental byproduct of electronic surveillance under FISA; it
     could be the reason for conducting the surveillance. (U)

     Despite the plain language and legislative history of the 1978
     version of FISA, the FISC and other courts generally have not
     interpreted it to permit electronic surveillance (or physical
     searches) primarily to obtain evidence for a prosecution. These
     decisions pay insufficient heed to the language of FISA. If this
     Court agrees with those cases, however, FISA may still be used
     primarily to obtain evidence for a prosecution as long as the
     statute is also being used for a significant non-law enforcement
     foreign intelligence purpose. A purpose may be "significant"
     regardless of the existence or importance of any other purpose.
     (U)

     Under either approach, the FISC erred in denying the FISA
     application in this case, and in modifying the Department's March
     2002 Intelligence Sharing Procedures. If FISA may be used for the
     purpose of obtaining evidence for a prosecution specifically
     designed to protect national security, then consultations
     conducted in furtherance of such a prosecution are obviously
     permissible. Indeed, such consultations are affirmative evidence
     of a purpose to obtain foreign intelligence information. In any
     event, however, such consultation could not render a non-law
     enforcement purpose "insignificant." That is because the
     significance of a purpose to obtain foreign intelligence
     information is not affected by the existence or strength of a
     purpose to obtain evidence for law enforcement, even if the law
     enforcement purpose provides the primary motive for using FISA.
     (U)

     3. FISA and the USA Patriot Act, as interpreted herein, are
     constitutional. Under the Supreme Court's decision in United
     States v. United States District Court (Keith), 407 U.S. 297
     (1972), it is the nature of the threat, not the nature of the
     government's response to that threat, which determines the
     constitutionality of FISA searches and surveillance. Thus, there
     is no constitutional basis for distinguishing between law
     enforcement efforts and other means of protecting this country
     against foreign spies and terrorists. Where the government's
     purpose is to protect national security, its choice among
     otherwise lawful methods for achieving the protection does not
     implicate the Fourth Amendment. (U)

     If this Court rejects that argument, FISA may still be used
     primarily to collect evidence as long as the government has a
     "significant" non-law enforcement purpose for conducting the
     search or surveillance. Prior to FISA, every court of appeals to
     consider the issue upheld unilateral Executive Branch surveillance
     where the government's "primary purpose" was to obtain foreign
     intelligence. Given the extensive protections in FISA, including
     the requirements for judicial review and approval of applications
     before searches or surveillance may occur, and regular
     congressional oversight, the change from "primary" to
     "significant" purpose does not make a FISA search or surveillance
     unreasonable. (U)

                                ARGUMENT (U)

     I. THE FISC ERRED IN USING "MINIMIZATION" PROVISIONS TO LIMIT THE
     PURPOSE OF FISA SEARCHES AND SURVEILLANCE AND CONSULTATIONS
     BETWEEN INTELLIGENCE AND LAW ENFORCEMENT OFFICIALS (U)

     Contrary to the FISC's conclusion, minimization procedures do not
     provide an independent basis for limiting the purpose of FISA
     searches or surveillance, or consultations between intelligence
     and law enforcement officials. Under FISA, "minimization
     procedures" are defined to be

          specific procedures, which shall be adopted by the Attorney
          General, that are reasonably designed in light of the purpose
          and technique of the particular surveillance [or search], to
          minimize the acquisition and retention, and prohibit the
          dissemination, of nonpublicly available information
          concerning unconsenting United States persons consistent with
          the need of the United States to obtain, produce, and
          disseminate foreign intelligence information.

     50 U.S.C. §§ 1801(h)(1), 1821(4)(A). These standards do not
     contemplate limits on the acquisition of information that is
     otherwise subject to collection under the statute. Rather, like
     their counterparts in Title III, they are designed to minimize the
     acquisition of information that is not otherwise subject to
     collection under the statute. See Scott v. United States, 436 U.S.
     128 (1978) (interpreting minimization standards of Title III, 18
     U.S.C. § 2510(5)). As the House Report underlying FISA explains,
     "[b]y minimizing acquisition, the committee envisions, for
     example, that in a given case, where A is the target of a wiretap,
     after determining that A's wife is not engaged with him in
     clandestine intelligence activities, the interception of her calls
     on the tapped phone, to which A is not a party, probably ought to
     be discontinued as soon as it is realized that she rather than A
     was the party." House Report 55; see S.Rep. No. 95-701, 95th
     Cong., 2d Sess. (1978), at 37-38 [hereinafter Senate Intelligence
     Report]. Thus, minimization governs the implementation of
     surveillance to ensure that acquisition (and retention and
     dissemination) of information is not overbroad in relation to the
     surveillance's authorized purpose and scope; but minimization has
     nothing whatsoever to do with defining the authorized purpose and
     scope of a surveillance. 9 (U)

          9 The FISC's May 17 opinion may be read to suggest that we
          agreed with its authority to regulate the purpose of searches
          and surveillance, and consultations between intelligence and
          law enforcement officials, under the rubric of minimization.
          See, e.g., App. 6:3 at 8. That is clearly not the case. See
          App. 1:3 at 30 n. 7. The FISC acknowledged that our objection
          to its reliance on minimization at the July 19, 2002 hearing
          on the FISA application in this case. (A transcript of the
          July 19 hearing has not yet been prepared.) Although the
          FISC's May 2002 Order suggests that the FISC intends to
          regulate intelligence investigations whether or not FISA is
          being used, we do not believe that the FISC intends to
          regulate intelligence investigations prior to the use of
          FISA. (U)

     Indeed, FISA's minimization standards are more generous than those
     in Title III, because they require minimization only "consistent
     with" the government's "need to obtain, produce, and disseminate
     foreign intelligence information." See House Report 56 ("given the
     nature of the intelligence gathering, minimizing acquisition
     should not be as strict as under" Title III). Thus, the government
     is required to take minimization steps only to the extent that
     those steps do not interfere with its basic entitlement under FISA
     to acquire, retain, and disseminate foreign intelligence
     information. Cf. Scott, 436 U.S. at 140 ("there are surely cases,
     such as the one at bar, where the percentage of nonpertinent calls
     is relatively high and yet their interception was still
     reasonable."). (U)

     Even if minimization could be used to limit the purpose of FISA
     searches and surveillance, or to restrict coordination between
     intelligence and law enforcement officials, the FISC still erred.
     As discussed in Argument II, infra, FISA contains specific
     provisions that govern the "purpose" of searches and surveillance
     and the "coordinat[ion]" between intelligence and law enforcement
     officials. Thus, even if minimization could be used to regulate
     purpose or coordination, it clearly cannot do so in a way that
     conflicts with FISA's purpose and coordination provisions
     themselves. The statute must be read as a whole. See, e.g., United
     States v. Morton, 467 U.S. 822, 828 (1984). Thus, the meaning of
     FISA's purpose and coordination provisions, as originally enacted
     and as modified by the USA Patriot Act, was unavoidably before the
     FISC, as it is now before this Court. (U)

     II. CONSULTATIONS TO COORDINATE LAW ENFORCEMENT AND INTELLIGENCE
     EFFORTS TO PROTECT NATIONAL SECURITY FROM FOREIGN THREATS CANNOT
     JUSTIFY DENIAL OF A FISA APPLICATION (U)

          A. FISA May Be Used Primarily, or Exclusively, to Obtain
          Evidence for a Prosecution Designed to Protect the United
          States Against Foreign Spies and Terrorists. (U)

     1. Since its enactment in 1978, FISA has authorized searches or
     surveillance where the primary or a significant "purpose of the
     [search or surveillance] is to obtain foreign intelligence
     information." 50 U.S.C. §§ 1804(a)(7)(B), 1823(a)(7)(B). Thus,
     distinguishing one purpose from another under FISA depends
     initially on the meaning of the term "foreign intelligence
     information." The statute defines that term to include

          information that relates to, and if concerning a United
          States person is necessary to, the ability of the United
          States to protect against -

               (A) actual or potential attack or other grave hostile
               acts of a foreign power or an agent of a foreign power;

               (B) sabotage or international terrorism by a foreign
               power or an agent of a foreign power; or

               (C) 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. § 1801(e)(1). (U)

     Under this definition, information is foreign intelligence
     information only if it is relevant or necessary to help the United
     States protect against certain specified threats, including
     attack, sabotage, terrorism, and espionage committee by foreign
     powers or their agents. Thus, information concerning purely
     domestic threats to the United States -- e.g., information
     concerning Timothy McVeigh's plan to bomb the Oklahoma City
     Federal Building -- is not foreign intelligence information.
     Correspondingly, information concerning foreign activities that do
     not threaten national security -- e.g., an international fraud
     scheme -- is also not foreign intelligence information. However,
     information about an al Qaeda conspiracy to bomb New York is
     foreign intelligence information because it concerns international
     terrorism committed by a foreign power and is needed to protect
     against that threat. See 50 U.S.C. § 1801 (a)-(c); House Report at
     47-50. 10 (U)

          10 A second definition of "foreign intelligence information,"
          in 50 U.S.C. § 1801(e)(2), includes information relevant or
          necessary to "the national defense of the United States" or
          "the conduct of the foreign affairs of the United States."
          This definition, which generally involves information
          referred to as "affirmative" or "positive" foreign
          intelligence rather than "protective" foreign intelligence or
          "counterintelligence" information, is not at issue in this
          case, and is rarely the object of surveillance in which
          purpose issues arise, because the affirmative intelligence
          information is usually not evidence of a crime. See Senate
          Intelligence Report at 11 & n.4. (U)

     Although "foreign intelligence information" must be relevant or
     necessary to "protect" against the specified threats, the
     statutory definition does not limit how the government may use the
     information to achieve that protection. In other words, the
     definition does not discriminate between protection through
     diplomatic, economic, military, or law enforcement efforts, other
     than to require that those efforts be "lawful." 50 U.S.C. §§
     1806(a), 1825(a). 11 Thus, for example, where information is
     relevant or necessary to recruit a foreign spy or terrorist as a
     double agent, that information is "foreign intelligence
     information" if the recruitment effort will "protect against"
     espionage or terrorism. Similarly, where information is relevant
     or necessary to prosecute a foreign spy or terrorist, that
     information is also "foreign intelligence information" if the
     prosecution will "protect against" espionage or terrorism. (U)

          11 The statute provides that no "information acquired
          pursuant to" a search or surveillance may be "disclosed for
          law enforcement purposes" or "used in a criminal proceeding"
          absent the Attorney General's permission. 50 U.S.C. §§
          1806(b), 1825(c). This provision is designed to ensure that
          an aggrieved party receives notice that he was subject to
          FISA searches or surveillance so that he may seek suppression
          of evidence obtained or derived from FISA before it is used
          in a "trial" or other proceeding. 50 U.S.C. §§ 1806(c) and
          (e), 1825(d) and (f). See House Report 88-90. (U)

     Prosecution is often a most effective means of protecting national
     security. For example, the recent prosecution of Ahmed Ressam, who
     was charged with attempting to destroy Los Angeles International
     Airport, protected the United States by incapacitating Ressam
     himself from committing further attacks, and by deterring others
     who might have contemplated similar action. Moreover, as a result
     of his conviction and sentence, Ressam agreed to cooperate with
     the government and provided information about the training that he
     received at an al Qaeda camp overseas. That kind of prosecution
     thus protects the United States directly, by neutralizing a
     threat, and indirectly, by generating additional foreign
     intelligence information. The same is true of the recent
     prosecution of Robert Hanssen: By far the best source of
     intelligence on Hanssen's espionage activities is Hanssen himself;
     and the government gained access to Hanssen only as a result of
     his capture, prosecution, and plea agreement. (U)

     In sum, information is "foreign intelligence information" if it is
     relevant or necessary to the ability of the United States to
     protect against threats posed by foreign spies and terrorists.
     Such protection may be achieved in several ways, including by
     prosecuting the spy or terrorist. Information therefore may be
     "foreign intelligence information" solely by virtue of its
     importance to such a prosecution. Where the government conducts a
     search or surveillance for the purpose of obtaining information
     for use in such a prosecution, it satisfies FISA's standards. (U)

     2. The USA Patriot Act confirms this understanding of FISA by
     incorporating the definition of "foreign intelligence information"
     into new provisions of the statute that authorize consultations
     and coordination between federal law enforcement officers and
     intelligence officers who conduct FISA searches or surveillance.
     50 U.S.C. §§ 1806(k), 1825(k). The Patriot Act's "coordination"
     amendment to FISA provides:

          (1) Federal officers who conduct [electronic surveillance or
          physical searches] to acquire foreign intelligence
          information under this title may consult with Federal law
          enforcement officers to coordinate efforts to investigate or
          protect against -

          (A) actual or potential attack or other grave hostile acts of
          a foreign power or an agent of a foreign power;

          (B) sabotage or international terrorism by a foreign power or
          an agent of a foreign power; or

          (C) clandestine intelligence activities by an intelligence
          service or network of a foreign power or by an agent of a
          foreign power.

          (2) Coordination authorized under paragraph (1) shall not
          preclude the certification required by [50 U.S.C. §§
          1804(a)(7)(B) and 1823(a)(7)(B)] or the entry of an order
          under [50 U.S.C. §§ 1805 and 1824].

     50 U.S.C. §§1806(k), 1825(k) (emphasis added). (U)

     This amendment authorizes "consult[ation]" and "coordinat[ion]"
     between intelligence and law enforcement officers. It defines the
     scope of authorized coordination by incorporating verbatim the
     foreign threats to national security that are specified in the
     definition of "foreign intelligence information" -- attack,
     sabotage, terrorism, and espionage committed by foreign powers or
     their agents. Compare 50 U.S.C. §§1806(k)(1)(A)-(C) and
     1825(k)(1)(A)-(C), with 50 U.S.C. §1801(e)(1)(A)-(C). The
     amendment authorizes consultations to coordinate the government's
     various "efforts to investigate or protect" against such threats.
     Thus, consultations concerning purely domestic threats to national
     security (Timothy McVeigh), or foreign activities that do not
     threaten national security (international fraud schemes), are not
     within the scope of the coordination amendment. Consultations
     concerning an al Qaeda conspiracy to bomb New York, however, are
     within the scope of the provision, for the same reason that
     information concerning such a conspiracy is "foreign intelligence
     information." (U)

     By allowing intelligence and law enforcement officials to
     "coordinate efforts to investigate or protect" against the
     specified threats, the amendment recognizes that law enforcement
     investigations and efforts, as well as intelligence investigations
     and efforts, can "protect" against those threats. It therefore
     reaffirms the original meaning of "foreign intelligence
     information" to include information that will "protect" the United
     States against espionage and terrorism through both intelligence
     and law enforcement efforts. (U)

     In keeping with that idea, the amendment also provides that
     authorized coordination "shall not preclude" the certification or
     finding of a purpose to obtain foreign intelligence information.
     By definition, coordination authorized by the amendment must be in
     furtherance of a purpose to investigate or protect against the
     threats specified in the definition of "foreign intelligence
     information" -- e.g., an al Qaeda conspiracy to bomb New York.
     Such coordination cannot "preclude" a purpose to obtain foreign
     intelligence information because it is affirmative evidence of
     such a purpose. (U)

     3. The legislative history of FISA confirms what its plain
     language provides. When it enacted FISA in 1978, Congress
     understood that prosecution may be used to protect national
     security against foreign threats, and that FISA may be used to
     obtain evidence for such a prosecution. Indeed, the House Report
     underlying the original statute provides explicitly that FISA may
     be used for the purpose of obtaining information and evidence to
     support such a prosecution. In a lengthy paragraph, the House
     Committee directly addressed the precise questions that are
     presented in this appeal:

          Finally, the term "foreign intelligence information,"
          especially as defined in [50 U.S.C. §§ 1801(e)(1)(B) and
          (e)(1)(C)], can include evidence of certain crimes relating
          to sabotage, international terrorism, or clandestine
          intelligence activities. With respect to information
          concerning U.S. persons, foreign intelligence information
          includes information necessary to protect against clandestine
          intelligence activities of foreign powers or their agents.
          Information about a spy's espionage activities obviously is
          within this definition, and it is most likely at the same
          time evidence of criminal activities. How this information
          may be used to "protect" against clandestine intelligence
          activities is not prescribed by the definition of foreign
          intelligence information, although of course, how it is used
          may be affected by minimization procedures, see [50 U.S.C.§
          1801(h)]. And no information acquired pursuant to this bill
          could be used for other than lawful purposes, see [50 U.S.C.
          § 1806(a)]. Obviously, use of "foreign intelligence
          information" as evidence in a criminal trial is one way the
          Government can lawfully protect against clandestine
          intelligence activities, sabotage, and international
          terrorism. The bill, therefore, explicitly recognizes that
          information which is evidence of crimes involving clandestine
          intelligence activities, sabotage, and international
          terrorism can be sought, retained, and used pursuant to this
          bill.

     House Report at 49 (emphasis added). (U)

     The first underlined passage above makes clear that FISA does not
     discriminate between law enforcement and non-law enforcement
     protective methods. It is enough that the government intends to
     "protect" national security from foreign threats, and that the
     information sought is "necessary" to achieve that protection. 12
     In other words, as the House Report elsewhere explains, "evidence
     of certain crimes like espionage [and terrorism] would itself
     constitute ‘foreign intelligence information,' as defined, because
     it is necessary to protect against clandestine intelligence
     activity [and international terrorism] by foreign powers or their
     agents." House Report at 62. (U)

          12 By "necessary," Congress meant "important and required,"
          or fulfilling a "significant need," not that the information
          be absolutely essential. See House Report 47. (U)

     The second underlined passage above makes the same point even more
     clearly: By explaining that prosecution is one way to protect
     national security, and by stating that "evidence" of espionage or
     terrorism offenses may be "sought" as well as retained and used
     pursuant to FISA, the Report shows that FISA may be used for the
     purpose of obtaining such evidence, with the intent that it be
     offered in a prosecution designed to protect national security
     from foreign threats. Thus, prosecution of spies and terrorists is
     not merely an incidental byproduct of a FISA search or
     surveillance. Rather, obtaining evidence for such a prosecution
     may be the purpose of the surveillance. See Senate Intelligence
     Report at 10-11 & n.4. 13 (U)

          13 There are some apparently contrary indications in the
          legislative history. For example, the House Report
          "recognize[d] full well that the surveillance[s] under [FISA]
          are not primarily for the purpose of gathering evidence of a
          crime. They are to obtain foreign intelligence information,
          which when it comes to United States persons must be
          necessary to important national security concerns." House
          Report at 36; see id. at 60; S. Rep. No. 95-604, 95th Cong.,
          2d Sess. (1978), at 39, 55 [hereinafter Senate Judiciary
          Report]; Senate Intelligence Report at 41-42, 62. However,
          read in context, those passages do not undermine the idea
          that FISA may [be] used to obtain evidence for a prosecution
          designed to protect national security. For example, after
          stating that FISA may not be used to gather evidence, but
          only to protect "important national security concerns," the
          House Report goes on to explain that "[c]ombating the
          espionage and covert actions of other nations in this country
          is an extremely important national concern," and that
          "[p]rosecution is one way * * * to combat such activities."
          House Report 36. (U)

          The Senate Report underlying the 1994 amendments to FISA,
          which enacted the statute's provisions authorizing physical
          searches, does not address the issue. See S. Rep. No.
          103-296, 103d Cong., 2d Sess. (1994), at 33-34. (U)

     Indeed, while the 1978 legislative history correctly predicts that
     "prosecution is rarely the objective or the result" of FISA
     surveillance, and that its "primary purpose * * * is not likely to
     be the gathering of criminal evidence," House Report 24 n.20, 89
     (emphasis added), the legislative history recognizes that FISA
     allows for that possibility. Indeed, Congress understood that
     while some FISA surveillance would merely "result in the
     incidental acquisition of information about crimes," other FISA
     surveillance "[b]y contrast" would actively "seek[] information
     needed to detect or anticipate the commission of crimes." Senate
     Intelligence Report at 11 & n.4. The Senate Intelligence Report
     explains:

          Electronic surveillance for foreign counterintelligence and
          counterterrorism purposes requires different standards and
          procedures. U.S. persons may be authorized targets, and the
          surveillance is part of an investigative process often
          designed to protect against the commission of serious crimes
          such as espionage, sabotage, assassination, kidnaping, and
          terrorist acts committed by or on behalf of foreign powers.
          Intelligence and criminal law enforcement tend to merge in
          this area.

     Id. at 10-11 (emphasis added, footnote omitted). This statement
     reflects that FCI investigations, and the use of FISA within those
     investigations, may be "designed" for a law enforcement purpose.
     As the Report further explains, surveillance "need not stop once
     conclusive evidence of a crime is obtained, but instead may be
     extended longer where protective measures other than arrest and
     prosecution are more appropriate." Id. at 11. That statement
     reflects a recognition that prosecution is one of many legitimate
     "protective" efforts that FISA may be used to support.
     Accordingly, insofar as the "purpose" of FISA surveillance is
     concerned, prosecution is no different than traditional
     counterintelligence efforts like "‘[d]oubling' an agent or feeding
     him false or useless information," or "[m]onitoring him to
     discover other spies, their tradecraft and equipment." House
     Report at 36-37. (U)

     Senator Leahy referred to this legislative history to make
     precisely the same point in describing the USA Patriot Act's
     "coordination" amendment:

          I proposed and the Administration agreed to an additional
          provision in Section 505 that clarifies the boundaries for
          consultation and coordination between officials who conduct
          FISA search and surveillance and Federal law enforcement
          officials including prosecutors. Such consultation and
          coordination is authorized for the enforcement of laws that
          protect against international terrorism, clandestine
          intelligence activities of foreign agents, and other grave
          foreign threats to the nation. Protection against these
          foreign-based threats by any lawful means is within the scope
          of the definition of ‘foreign intelligence information,' and
          the use of FISA to gather evidence for the enforcement of
          these laws was contemplated in the enactment of FISA. The
          Justice Department's opinion cites relevant legislative
          history from the Senate Intelligence Committee's report in
          1978, and there is comparable language in the House report.

     147 Cong. Rec. S10990-02, at S11004 (October 25, 2001) (emphasis
     added). This statement makes clear that the drafter of the
     coordination amendment, who was the Chairman of the Senate
     Judiciary Committee and one of the principal negotiators of the
     USA Patriot Act, see id. at S11054, understood that FISA may be
     used to obtain evidence for a prosecution designed to protect
     national security, and indeed that had always permitted such use.
     (U)

     4. The text and legislative history of FISA's minimization
     provisions further confirm that "foreign intelligence information"
     includes information sought for use in the prosecution of a
     foreign spy or terrorist. As noted above (Argument I, supra),
     those provisions require reasonable efforts to minimize the
     acquisition and retention, and prohibit the dissemination, of
     nonpublic information concerning U.S. persons consistent with the
     government's need to "obtain, produce, and disseminate foreign
     intelligence information." 50 U.S.C. §§ 1801(h)(1), 1821(4)(A).
     The minimization provisions also provide, "notwithstanding" the
     rules governing foreign intelligence information, for retention
     and dissemination (but not acquisition) of "evidence of a crime"
     for "law enforcement purposes." 50 U.S.C. §§ 1801(h)(3),
     1821(4)(C). Thus, FISA has two key minimization provisions: One
     governing "foreign intelligence" and the other governing "evidence
     of a crime." (U)

     However, as the FISC acknowledged, and as the statute's
     legislative history makes clear, FISA's "crimes" minimization
     provision applies only to crimes that do not pose a foreign threat
     to national security -- i.e., what the FISC referred to as crimes
     that are "not related to the target's intelligence or terrorist
     activities." App. 6:3 at 10 n.4. Thus, for example, the "crimes"
     provision would apply if electronic surveillance of a spy revealed
     that the spy had killed his wife, and would permit intelligence
     officials to disseminate information about the murder to law
     enforcement officials for use in a homicide prosecution. See House
     Report 62 (referring to "a serious crime totally unrelated to
     intelligence matters"). But the "crimes" provision does not apply
     to evidence of crimes that do pose a threat to national security
     -- i.e., it does not permit the dissemination to prosecutors of
     information concerning Ahmed Ressam's terrorism offenses or Robert
     Hanssen's espionage. House Report 62; App. 6:3 at 10 n.4. (U)

     Of course, evidence of crimes that threaten national security is
     disseminated to prosecutors -- not under the "crimes" minimization
     provision, but under the "foreign intelligence" minimization
     provision. The FISC appeared to recognize this point in approving
     Part II.A of the Department's March 2002 Intelligence Sharing
     Procedures. See App. 6:2. In any event, Congress clearly
     appreciated the point when it enacted FISA in 1978. As the House
     Report put the matter in explaining why the "crimes" minimization
     provision does not apply to evidence of espionage and terrorism
     offenses:

          As noted above, see [50 U.S.C. § 1801(e)(1)], evidence of
          certain crimes like espionage would itself constitute
          "foreign intelligence information," as defined, because it is
          necessary to protect against clandestine intelligence
          activity by foreign powers or their agents. Similarly, much
          information concerning international terrorism would likewise
          constitute evidence of crimes and also be "foreign
          intelligence information," as defined. This paragraph [the
          "crimes" minimization provision] does not relate to
          information, even though it constitutes evidence of a crime,
          which is also needed by the United States in order to obtain,
          produce or disseminate foreign intelligence information.

     House Report at 62. (U)

     Apart from confirming that "foreign intelligence information"
     includes evidence of espionage and terrorism offenses, the
     minimization provisions also confirm that FISA may be used for the
     purpose of obtaining such evidence. Unlike the "crimes" provision,
     which authorizes retention and dissemination of evidence
     incidentally obtained through FISA, the "foreign intelligence"
     provision also authorizes acquisition of information. Compare 50
     U.S.C. §§ 1801(h)(1) and 1821(4)(A), with 50 U.S.C. §§ 1801(h)(3)
     and 1821(4)(C). Accordingly, the government may not conduct
     surveillance (exclusively) to acquire evidence of a domestic
     homicide. It may, however, conduct FISA surveillance to acquire
     evidence of espionage or international terrorism, because such
     evidence is foreign intelligence information, and because its use
     by prosecutors is consistent with the foreign intelligence
     "need[s]" of the United States. (U)

     Indeed, the conclusion is the same whether phrased in the language
     of minimization or the language of purpose: FISA may not be used
     to "acquire," or for the (exclusive) "purpose" of obtaining,
     evidence for the prosecution of a domestic homicide, because such
     information is not "foreign intelligence information." But FISA
     may be used to "acquire," or for the "purpose" of obtaining,
     evidence for the prosecution of a foreign spy or terrorist,
     because such information is "foreign intelligence information." 14
     (U)

          14 The FISC erred in concluding that information is "foreign
          intelligence information" only insofar as it is used by
          intelligence officials for a non-law enforcement purpose. See
          App. 6:3 at 25. As noted above, FISA allows dissemination of
          foreign intelligence information only to the extent that
          there is a foreign intelligence "need" to do so. Thus,
          prosecutors may receive such information only because it is
          foreign intelligence information as disseminated to and used
          by them -- i.e., only because they have an independent
          foreign intelligence need for the information. (U)

     5. Despite the plain language and legislative history of the
     statute, before the passage of the USA Patriot Act the courts did
     not endorse the use of FISA to obtain evidence for a prosecution
     designed to protect national security. Instead of distinguishing,
     as FISA's text and legislative history do, between protective and
     non-protective efforts and purposes, they distinguished between
     law enforcement and non-law enforcement efforts and purposes.
     These courts treated a law enforcement purpose as automatically
     precluding a protective purpose, as if the two terms are mutually
     exclusive. In other words, they treated "foreign intelligence
     information" as if it does not include evidence sought for use in
     the prosecution of a spy or international terrorist. They held
     that the "primary purpose" of a FISA search or surveillance must
     be to obtain "foreign intelligence information" as so defined --
     i.e., that the primary purpose must be a non-law enforcement
     purpose. See United States v. Truong Dinh Hung, 629 F.2d 908 (4th
     Cir. 1980) (case applying the "primary purpose" test under
     pre-FISA standards); United States v. Duggan, 743 F.2d 59, 78 (2d
     Cir. 1984); United States v. Badia, 827 F.2d 1458, 1464 (11th Cir.
     1987); United States v. Pelton, 835 F. 2d 1067, 1075 (4th Cir.
     1987); United States v. Johnson 952 F.2d 565, 572 (1st Cir. 1992).
     (U)

     Insofar as they reject the idea that FISA may be used to collect
     evidence for law enforcement efforts to protect against foreign
     spies and terrorists, we believe that these cases were wrongly
     decided. However, none of the cases expressly rejected the idea
     that evidence needed for such a prosecution is "foreign
     intelligence information." Indeed, none of the cases even
     discussed the government's purpose for prosecuting, and from all
     that appears the government never advanced the idea that
     prosecution may be used to protect national security, or that FISA
     may be used to obtain evidence for such a prosecution. For
     example, Attorney General Griffin Bell, who testified at the
     suppression hearing in Truong, described prosecution only as an
     "incidental" byproduct of a non-criminal counterintelligence
     investigation: "Let me say that every one of these
     counterintelligence investigations involved, nearly all of them
     that I have seen, involves crime in an incidental way. You never
     know when you might turn up with something you might want to
     prosecute." 629 F.2d at 916 n.5. Thus, while these decisions
     clearly distinguish between "law enforcement" and "foreign
     intelligence" purposes, they do not squarely address the
     distinction between law enforcement efforts designed to protect
     against foreign espionage and terrorism and other law enforcement
     efforts. (U)

     One court of appeals appears to have taken a different approach,
     albeit in dictum. In United States v. Sarkissian, 841 F.2d 959
     (9th Cir. 1988), the government used FISA wiretap evidence to
     obtain convictions for offenses arising from an international
     terrorist plot. Relying on the "primary purpose" test, the
     defendants challenged the admissibility of the FISA evidence. The
     court of appeals did not decide whether "the test is one of
     purpose or primary purpose," because it concluded that both tests
     were satisfied. Id. at 964. The court explained: "We refuse to
     draw too fine a distinction between criminal and intelligence
     investigations. ‘International terrorism,' by definition, requires
     the investigation of activities that constitute crimes." Id. at
     965. (U)

     The court in Sarkissian went on to observe that "FISA is meant to
     take into account [t]he differences between ordinary criminal
     investigations to gather evidence of specific crimes and foreign
     counterintelligence investigations," and stated that "[a]t no
     point was this case an ordinary criminal investigation." 841 F.2d
     at 965 (internal quotation omitted). It then cited and described
     several other cases in which FISA surveillance had been upheld,
     apparently to illustrate the point that none of them involved
     "ordinary" investigations: a "conspiracy to manufacture machine
     guns and silencers for ‘Omega-7,' an anti-Castro group"; an "IRA
     attempt to buy parts for bombs and surface-to-air missiles"; an
     "Armenian terrorist plot to assassinate [a] Turkish diplomat"; and
     a case involving "IRA arms smuggling." Ibid. (U)

     Thus, Sarkissian appears to recognize that the important
     distinction under FISA is not between law-enforcement efforts and
     non-law enforcement efforts, but between efforts to protect
     national security from foreign threats (including law enforcement
     efforts to do so) and other efforts (e.g., efforts to protect
     against domestic terrorists or international fraud schemes). FISA
     may not be used primarily to obtain evidence for what Sarkissian
     called "ordinary" prosecutions, but it may be used primarily (or
     exclusively) to obtain evidence for prosecutions designed to
     protect national security from foreign threats. (U)

          B. FISA May Be Used Primarily to Obtain Evidence for a
          Prosecution if the Government Also Has a Signficant Non-Law
          Enforcement Foreign Intelligence Purpose. (U)

     At a bare minimum, the difficulty of clearly distinguishing the
     line between law enforcement purposes and protective national
     security purposes strongly supports allowing the use of FISA
     primarily for the purpose of obtaining evidence for a prosecution
     as long as the government also has a "significant" non-law
     enforcement purpose for obtaining foreign intelligence
     information. Moreover, because a purpose to obtain foreign
     intelligence information may be "significant" regardless of the
     existence or strength of a purpose to obtain evidence for a
     prosecution, consultations between intelligence and law
     enforcement personnel cannot preclude the government's
     certification of purpose or the FISC's issuance of an
     authorization order. (U)

     1. Until the USA Patriot Act, FISA required that "the purpose" of
     a search or surveillance be to obtain foreign intelligence
     information. 50 U.S.C. §§1804(a)(7)(B), 1823(a)(7)(B) (amended).
     However, the federal courts, including the FISC, generally read
     "the purpose" to mean "primary purpose." See, e.g., Duggan, 743
     F.2d at 78. Under the "primary purpose" regime, courts reviewed
     consultations between intelligence and law enforcement officials
     in an investigation to determine whether the government's primary
     purpose for the investigation, and for the FISA search or
     surveillance conducted within the investigation, was to obtain
     information for law enforcement. The more consultations that
     occurred, the more likely courts were to find an improper law
     enforcement purpose. (U)

     For example, the court of appeals in Truong determined the
     government's primary purpose by examining the consultations
     between intelligence agents (who were conducting the surveillance)
     and prosecutors (who eventually brought the charges against
     Truong). The court of appeals agreed with the district court's
     decision to suppress evidence obtained from electronic
     surveillance after consultations and coordination had shifted the
     government's "primary purpose" to prosecution (629 F.2d at 916):

          In this case, the district court concluded that on July 20,
          1977, the investigation of Truong had become primarily a
          criminal investigation. Although the Criminal Division of the
          Justice Department had been aware of the investigation from
          its inception, until summer the Criminal Division had not
          taken a central role in the investigation. On July 19 and
          July 20, however, several memoranda circulated between the
          Justice Department and the various intelligence and national
          security agencies indicating that the government had begun to
          assemble a criminal prosecution. On the facts of this case,
          the district court's finding that July 20 was the critical
          date when the investigation became primarily a criminal
          investigation was clearly correct. (U)

     As explained below, the USA Patriot Act eliminated the "primary
     purpose" standard by enacting a "significant purpose" standard,
     and thereby also eliminated Truong's approach to weighing
     intelligence and law enforcement purposes to determine which is
     "primary." Nonetheless, as part of its May 2002 order, the FISC
     adopted a new Rule 11 that is entirely in keeping with Truong and
     is at odds with the USA Patriot Act. It provides: "All FISA
     applications shall include informative descriptions of any ongoing
     criminal investigations of FISA targets, as well as the substance
     of any consultations between the FBI and criminal prosecutors at
     the Department of Justice or a United States Attorney's Office."
     As the discussion below makes clear, Rule 11 cannot be reconciled
     with the USA Patriot Act. This Court should therefore direct the
     FISC to rescind the rule. See, e.g., Carlisle v. United States,
     517 U.S. 416, 426-427 (1996); Bank of Nova Scotia v. United
     States, 487 U.S. 250, 254-255 (1988). (U)

     2. The "significant purpose" test differs from the "primary
     purpose" test. A purpose is "significant" when it has or is
     "likely to have influence or effect," or when it is "important."
     Merriam-Webster's Collegiate Dictionary 1091 (10th ed. 1998).
     Thus, as long as the desire to obtain foreign intelligence
     information has "influence or effect" on the decision to use FISA,
     it satisfies the "significant purpose" test. In practice, it may
     be easier to recognize a significant purpose by considering its
     opposite: A purpose is "significant" when it is not
     "insignificant" -- i.e., when it is not trivial, incidental, or
     pretextual. Cf. United States v. Brito, 126 F.3d 397, 407 (5th
     Cir. 1998); United States v. Roberts, 913 F. 2d 211, 220 (5th Cir.
     1990). (U)

     By requiring only a "significant" purpose to obtain foreign
     intelligence information, Congress allowed for other purposes,
     including a purpose to obtain evidence for use in a prosecution,
     to be the "primary" reason for conducting a search or
     surveillance. Cf. United States v. Soto-Silva, 129 F.3d 340, 347
     (5th Cir. 1997) (finding that defendant who maintained house for
     "primary purpose" of taking care of her mother also maintained
     house for "significant purpose" of distributing marijuana).
     Members of Congress who voted for and against the USA Patriot Act
     discussed and understood that the "significant purpose" amendment
     would allow the government to use FISA primarily to collect
     evidence for use in a criminal prosecution. See 147 Cong. Rec.
     S11021 (Oct. 25, 2001) (statement of Senator Feingold); see also
     id. at S11025 (statement of Senator Wellstone); id. at S10593
     (Oct. 11, 2001) (statements of Senators Leahy and Cantwell); see
     also id. at S10591 (Oct. 11, 2001) (statement of Senator
     Feinstein). (U)

     The "significant purpose" standard also differs from the "primary
     purpose" standard because it eliminates the need for courts
     routinely to compare and weigh competing purposes for using FISA.
     Unlike "primary," the adjective "significant" is not an inherently
     relative or comparative term. A purpose may be "significant," in
     the sense of having "influence or effect," regardless of whether
     there are other purposes present. Thus, to determine whether a
     "significant" purpose for using FISA is to obtain foreign
     intelligence information, courts need not examine the extent of
     any purpose to obtain evidence for a prosecution. (U)

     The legislative history of the USA Patriot Act confirms that
     Congress intended to eliminate the need to compare purposes. In
     explaining why the "significant purpose" amendment was enacted,
     the House Report underlying H.R. 2975 explained:

          Presently, a FISA certification request can only be used
          where foreign intelligence gathering is the sole or primary
          purpose of the investigation as interpreted by the courts.
          This requires law enforcement to evaluate constantly the
          relative weight of criminal and intelligence purposes when
          seeking to open a FISA investigation and thereafter as it
          proceeds.

     H.R. Rep. 107-236(1), 107th Cong., 1st Sess., at 60 (Oct. 11,
     2001). Thus, the significant purpose amendment was enacted to
     relieve the government from the obligation to weigh competing
     intelligence and law enforcement purposes. (U)

     Because the "significant purpose" test does not require comparison
     of intelligence and law enforcement purposes, it also does not
     require routine review of consultations between intelligence and
     law enforcement officials. As in Truong, such consultations may be
     relevant to establish that a law enforcement purpose is "primary,"
     but they are very unlikely to establish that an explained and
     certified purpose to obtain foreign intelligence information is
     not "significant." The certification typically is made by the
     Director of the FBI, and is approved by the Attorney General.
     Whatever transpires in consultations between line attorneys or
     agents conducting particular investigations, these high-ranking
     officials determine the government's actual purpose for using
     FISA. (U)

     This is particularly true where, as here, the consultations fall
     under the rubric of the USA Patriot Act's "coordination"
     amendment. Even if the coordination amendment is not read to
     reaffirm the theory that FISA may be used to obtain evidence for a
     prosecution designed to protect national security, as argued
     above, it nonetheless provides explicitly that law enforcement and
     intelligence officials "may consult" with one another to
     coordinate efforts to protect against espionage and terrorism,
     among other matters. It also provides that such consultations
     "shall not preclude the certification" of a significant foreign
     intelligence purpose "or the entry of an order" authorizing a FISA
     search or surveillance. At a minimum, therefore, the coordination
     amendment reinforces the conclusion that where the FISA
     application demonstrates a significant foreign intelligence
     purpose, authorized consultations and coordination between
     intelligence and law enforcement officials cannot undermine that
     purpose. (U)

     Indeed, where law enforcement officials seek evidence to prosecute
     a spy or terrorist, intelligence officials will always (or almost
     always) have at least a significant purpose to obtain the same
     information. As the FISC acknowledged in its opinion,

          most information intercepted or seized has a dual character
          as both foreign intelligence information and evidence of a
          crime (e.g., the identity of a spy's handler, his/her
          communication signals and deaddrop locations; the fact that a
          terrorist is taking flying lessons, or purchasing explosive
          chemicals) differentiated primarily by the persons using the
          information.

     App. 6:3 at 10; see id. at 25 ("the information collected through
     FISA surveillance and searches is both foreign intelligence
     information and evidence of a crime, depending on who is using
     it"); see also House Report 49, 62. Thus, even where consultations
     with law enforcement officials influence the purpose or scope of a
     FISA search or surveillance, the information sought will still be
     "foreign intelligence information," and a significant purpose will
     still be to obtain such information for use in non-law enforcement
     efforts to protect the United States. (U)

     To be sure, there may be cases in which review of consultations is
     appropriate even under the "significant purpose" standard. For
     example, where the FISA application on its face (or other
     information before the FISC) strongly suggests an intentionally
     false certification of purpose, the safe harbor would not preclude
     judicial review of the consultations that may have occurred among
     the officials involved. Cf. Duggan, 743 F. 2d at 77 & n.6 (citing
     Franks v. Delaware, 438 U.S. 154 (1978)). Absent such a strong
     suggestion, however, routine judicial review of consultations
     between intelligence and law enforcement officials, as required by
     the FISC's new Rule 11, is inappropriate. Cf. United States v.
     Armstrong, 517 U.S. 456, 465-466 (1996) (court may not order
     discovery in support of selective prosecution claim absent a
     threshold showing that the government has acted with both
     discretionary effect and "a discriminatory purpose"). (U)

          C. The FISC Erred in Denying in Part the FISA Application in
          This Case. (U)

     Whether this Court accepts the argument that FISA may be used to
     obtain evidence for a prosecution designed to protect national
     security, as set forth in Part II.A, or the alternative argument
     that it may be used to obtain evidence for a prosecution if the
     government also has a significant non-law enforcement purpose, as
     set forth in Part II.B, the FISC clearly erred in limiting
     consultations between intelligence and law enforcement officials
     in this case. As the FISA application makes clear, the government
     is pursuing a traditional intelligence investigation and other
     intelligence efforts against the target in order to protect
     against international terrorism, and it is also pursuing a
     criminal investigation and other law enforcement efforts against
     him for the same protective purpose. The consultations envisioned
     in this case are all intended to coordinate these intelligence and
     law enforcement efforts to investigate and protect against
     international terrorism. Thus, by definition, they tend to reveal
     a purpose to protect national security, whether through
     traditional intelligence efforts or through law enforcement
     efforts. If this Court accepts the contention that information
     sought for a prosecution to protect national security is foreign
     intelligence information, then these consultations would
     demonstrate that the FISA surveillance is designed to obtain such
     information. They would be affirmative evidence of a foreign
     intelligence purpose. (U)

     Alternatively, if this Court rejects that argument, the
     consultations still could not undermine the significance of a
     non-law enforcement foreign intelligence purpose. The application
     explains and certifies that a significant purpose of the
     surveillance is to monitor the target's terrorist network in this
     case. There is no basis whatsoever for questioning that assertion
     on this record. The fact that the government also intends to
     prosecute in no way detracts from the significance of the non-law
     enforcement purpose. (U)

     The government's efforts to investigate and protect against
     international terrorism in this case would be aided substantially
     by adherence to the March 2002 Procedures. At present, the
     government is conducting two parallel and largely overlapping
     investigations of the same person, but is compelled to use two
     separate law enforcement agencies in two separate Departments of
     the government. That is obviously an inefficient approach. Yet, as
     the FISA application explains, it is required to ensure that the
     government does not lose its ability to use FISA in the
     intelligence investigation. (U)

     Although the use of two separate law enforcement agencies to
     investigate the same target is not a common method of insuring the
     availability of FISA -- other methods include using separate
     squads of FBI agents with the FISC or another entity serving as
     the "wall" to regulate consultations between the squads -- the
     difficulty it illustrates is by no means uncommon. Reports from
     the Executive and Legislative Branches of government alike have
     found that the "primary purpose" test as applied by the FISC has
     inhibited necessary coordination between intelligence and law
     enforcement officials. See IV AGRT Report, Chapter 20, at 721-734;
     General Accounting Office, FBI Intelligence Investigations:
     Coordination Within Justice on Counterintelligence Criminal
     Matters is Limited (July 2001) (GAO-010780) (hereinafter GAO
     Report). As the GAO report summarized matters (GAO Report at page
     3):

          Coordination between the FBI and the Criminal Division has
          been limited in those foreign counterintelligence cases where
          criminal activity is indicated and [FISA] surveillance and
          searches have been, or may be, employed. A key factor
          inhibiting this coordination is the concern over how the
          Foreign Intelligence Surveillance Court or another federal
          court might rule on the primary purpose of the surveillance
          or search in light of such coordination.

     These findings, although disturbing, should not be surprising: No
     large organization can achieve a complex mission unless its
     related parts are allowed to work together. (U)

     Two of the FISC's requirements have particularly stifled
     coordination in this case. First, there is the FISC's warning that
     prosecutors may not advise intelligence officials in a way that
     results in "direction or control" of the intelligence
     investigation. This has chilled the substance of consultations
     between intelligence and law enforcement officials. Second, there
     is the rule that prosecutors may not even meet or discuss the case
     with intelligence agents without first inviting OIPR to
     participate, and the related requirement that OIPR cannot allow
     the meeting to occur without its participation unless it is
     "unable" to do so. This "chaperone" requirement has made it
     difficult for any consultations to occur at all. The next
     paragraphs discuss these limitations as they apply in this case.
     (U)

          1. The Ban on "Direction or Control". (U)

     As we argued in the FISC in support of the March 2002 Procedures,
     the "direction or control" test has no textual support in FISA or
     any published decision interpreting the statute. App. 1:3 at
     26-30. More importantly, as a practical matter, the FISC has often
     equated "direction or control" with the giving of any advice
     designed to "enhance," rather than merely to "preserve," the
     possibility of prosecution. See, e.g., App. 5 at 2-6; AGRT Report
     at 727-734. As we argued in the FISC (App. 1:3 at 27):

          providing advice, including advice designed to enhance the
          possibility of a criminal prosecution, cannot be equated with
          "direction or control." For example, prosecutors may suggest
          an investigative strategy, propose the use of investigative
          techniques other than FISA (e.g., consensual monitoring), and
          advise on interview tactics, all without taking over the
          investigation as a whole or the FISA activity conducted
          within it.

     In its May 2002 opinion, the FISC stated simply that it was "not
     persuaded" by these arguments. App. 6:3 at 23. When we pointed out
     the apparent inconsistency between the FISC's description of the
     advice that prosecutors may give and its continued reliance on the
     distinction between "preserving" and "enhancing" advice (App. 5 at
     2-6), the FISC reaffirmed its reliance on the distinction (App.
     6:1 at 1-2). (U)

          [approx. 1-1/2 pages deleted]

     2. The Chaperone Requirement. (U)

          [approx. 2-1/2 pages deleted]

     In sum, the FISC has misinterpreted FISA, and has done so in a way
     that inhibits necessary coordination. The USA Patriot Act, which
     the FISC effectively ignored, expressly authorizes coordination
     between intelligence and law enforcement officials. The Act
     reflects Congress' recognition that the country and its people can
     no longer afford a fragmented, blinkered, compartmentalized
     response to international terrorism and espionage. The FISC has
     refused to give effect to the Act and the changes it made. This
     Court should not allow that refusal to stand. (U)

     III. AS AMENDED BY THE USA PATRIOT ACT, FISA IS CONSTITUTIONAL (U)

          A. FISA May Be Used Primarily, or Exclusively, to Obtain
          Evidence for a Prosecution Designed to Protect the United
          States Against Foreign Spies and Terrorists. (U)

     1. When Congress enacted FISA in 1978, it understood the
     constitutional significance of authorizing surveillance for the
     purpose of obtaining evidence to be used against foreign spies and
     terrorists. The Senate Intelligence Committee's Report on FISA
     gave the constitutional question "close scrutiny" because the
     Committee recognized that FISA "departs from ordinary criminal law
     in several ways." Senate Intelligence Report at 11. 15 The
     Committee concluded, however, that those departures were
     "‘reasonable both in relation to the legitimate need of Government
     for intelligence information and the protected rights of our
     citizens,' as required by the Supreme Court's leading decision in
     this field, United States v. United States District Court (Keith),
     407 U.S. 297, 323." Id. at 14. (U)

          15 Similarly, Members of Congress understood that the USA
          Patriot Act could raise constitutional questions, and
          intended for the courts to resolve the meaning of the statute
          as written. See 147 Cong. Rec. S10547-01, at S10589 (Oct. 11,
          2001) (statement of Senator Edwards); id. at S10593
          (statement of Senator Cantwell). As Senator Leahy put the
          matter, the USA Patriot Act "adopts ‘significant purpose,'
          and it will be up to the courts to determine how far law
          enforcement agencies may use FISA for criminal investigation
          and prosecution beyond the scope of the statutory definition
          of ‘foreign intelligence information.'" Id. at S11004 (Oct.
          25, 2001). (U)

     Today, as in 1978 the Keith case remains the leading decision of
     the Supreme Court in this area. In Keith, the Court addressed the
     "delicate question of the President's power, acting through the
     Attorney General, to authorize electronic surveillance in internal
     security matters without prior judicial approval." 407 U.S. at
     299. The defendants in Keith were domestic terrorists, and the
     Court therefore did not address "the scope of the President's
     surveillance power with respect to the activities of foreign
     powers, within or without this country." Id. at 308. Nor did Keith
     involve "any question or doubt as to the necessity of obtaining a
     warrant in the surveillance of crimes unrelated to the national
     security interest" under Title III. Ibid. Thus, Keith addressed
     the validity of warrantless electronic surveillance for the
     purpose of protecting against domestic threats to national
     security (e.g., Timothy McVeigh). 16 (U)

          16 In Keith itself, the prosecution stemmed from "the
          dynamite bombing of an office of the Central Intelligence
          Agency in Ann Arbor, Michigan." 407 U.S. at 299. (U)

     The Court in Keith held that a warrant is required for domestic
     security surveillance, but that more flexible standards could
     apply to the issuance of such a warrant. The Court explained the
     reasons for its conclusion (407 U.S. at 322):

          We recognize that domestic security surveillance may involve
          different policy and practical considerations from the
          surveillance of "ordinary crime." The gathering of security
          intelligence is often long range and involves the
          interrelation of various sources and types of information.
          The exact targets of such surveillance may be more difficult
          to identify than in surveillance operations against many
          types of crimes specified in Title III. Often, too, the
          emphasis of domestic intelligence gathering is on the
          prevention of unlawful activity or the enhancement of the
          Government's preparedness for some possible future crisis or
          emergency. Thus, the focus of domestic surveillance may be
          less precise than that directed against more conventional
          types of crime.

     In light of these "potential distinctions between Title III
     criminal surveillances and those involving the domestic security,"
     the Court suggested that "Congress may wish to consider protective
     standards for the latter which differ from those already
     prescribed for specified crimes in Title III." Ibid. (U)

     Keith's emphasis on the need for flexibility applies with even
     greater force to surveillance (or searches) directed at foreign
     threats to national security. As the Senate Intelligence Committee
     Report on FISA explained, quoting from Keith, "[f]ar more than in
     domestic security matters, foreign counterintelligence
     investigations are ‘long range' and involve ‘the interrelation of
     various sources and types of information.'" Senate Intelligence
     Report at 16. Surveillance directed at foreign threats also
     requires deferential standards of judicial review because it
     involves an area in which the President, as "Commander-in-Chief
     and as the Nation's organ for foreign affairs," Chicago & Southern
     Air Lines v. Waterman, 333 U.S. 103, 109 (1948), exercises "very
     delicate, plenary and exclusive power," United States v.
     Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936), and in
     which judicial intervention "is rarely proper." Haig v. Agee, 453
     U.S. 280, 293 (1981). 17 (U)

          17 Both before and after Keith, every federal court of
          appeals squarely to consider the question held that the
          government may conduct warrantless foreign intelligence
          surveillance. See, e.g., Truong, supra. The constitutionality
          of FISA has also been upheld by every court to consider the
          issue. See, e.g., Duggan, supra. (U)

     These concerns, which justify the use of FISA's different
     standards, do not recede merely because the government intends to
     protect national security through law enforcement rather than
     non-law enforcement efforts. On the contrary, Keith makes clear
     that it is the nature of the threat, not the nature of the
     government's response to the threat, that determines the
     constitutionality of national security surveillance. Whether the
     government intends to prosecute a foreign spy or recruit him as a
     double agent (or use the threat of the former to accomplish the
     latter), the investigation will often be long range, involve the
     interrelation of various sources and types of information, and
     present unusual difficulties because of the special training and
     support available to foreign enemies of this country. As the
     Senate Intelligence Committee's Report explained, quoting from a
     1955 study on espionage:

          The problems of crime detection in combating espionage are
          not ordinary ones. Espionage is a crime which succeeds only
          by secrecy. Moreover, spies work not for themselves or
          private organized crime "syndicates," but as agents of
          national states. Their activities are therefore likely to be
          carefully planned, highly organized, and carried on by
          techniques skillfully designed to prevent detection.

     Senate Intelligence Report 13 (quoting Fund for the Republic,
     Digest of the Public Record of Communism in the United States 29
     (New York 1955)). As the country learned on September 11, the same
     is true of many international terrorist groups. (U)

     Nothing in Keith suggests that the availability of more relaxed
     constitutional standards for a search or surveillance depends on
     the absence of a law enforcement purpose. On the contrary, the
     contrast drawn by the Court between domestic security surveillance
     and surveillance of "ordinary crime" or "more conventional types
     of crime" shows that the Court understood that domestic security
     surveillance focuses on crime, albeit crime of an unusual sort.
     See also 407 U.S. at 308, 310 (contrasting surveillance of "crimes
     unrelated to the national security interest," which are governed
     by Title III, with surveillance "of those who plot unlawful acts
     against the Government"). The Court's statement that the
     "emphasis" of security surveillance is "often" on "prevention" is
     factually accurate, but also allows for the possibility of an
     emphasis on prosecution, at least where the prosecution will
     protect against a "future crisis or emergency." As the Senate
     Intelligence Report put it, FISA surveillance "need not stop once
     conclusive evidence of a crime is obtained, but instead may be
     extended longer where protective measures other than arrest and
     prosecution are more appropriate." Senate Intelligence Report at
     11; see also House Report at 24 n.20, 89. (U)

     2. The foregoing analysis is consistent with more recent Supreme
     Court decisions addressing searches conducted for "special needs."
     In City of Indianapolis v. Edmond, 531 U.S. 32 (2000), the Court
     struck down suspicionless highway checkpoints designed to
     apprehend drug dealers, holding that the government's "general
     crime control ends" in fighting drug trafficking are not a
     "special need" justifying lower Fourth Amendment standards. Id. at
     40, 43. The Court made clear, however, that there are "special"
     law-enforcement needs that may justify more relaxed standards. (U)

     For example, the Court in Edmond reviewed and approved prior
     decisions upholding special needs seizures conducted for the
     purposes of capturing illegal immigrants and stopping intoxicated
     motorists, despite the fact that "[s]ecuring the border and
     apprehending drunk drivers are, of course, law enforcement
     activities, and law enforcement officers employ arrests and
     criminal prosecutions in pursuit of these goals." 531 U.S. at 42
     (citing Michigan Dept. of State Police v. Sitz, 496 U.S. 444
     (1990), and United States v. Martinez-Fuerte, 428 U.S. 543
     (1976)). Indeed, in response to criticism from the dissent, the
     Court made the point more explicitly:

          THE CHIEF JUSTICE's dissent erroneously characterizes our
          opinion as resting on the application of a
          "non-law-enforcement primary purpose test." Our opinion
          nowhere describes the purpose of the Sitz and Martinez-Fuerte
          checkpoints as being "not primarily related to criminal law
          enforcement." Rather, our judgment turns on the fact that the
          primary purpose of the Indianapolis checkpoints is to advance
          the general interest in crime control.

     Id. at 44 n.1 (emphasis added). Thus, while the "general interest
     in crime control" does not justify a departure from ordinary
     Fourth Amendment standards, a "special" interest concerning a
     particular type of crime may do so. As explained above, crimes
     such as espionage and international terrorism, which represent
     foreign threats to national security, are "special" in the
     constitutional sense.18 (U)

               18 In Ferguson v. City of Charleston, 121 S. Ct. 1281
               (2001), the Supreme Court struck down a non-consensual
               drug testing policy that applied to pregnant women
               seeking medical care at a State hospital. It relied on
               the fact that the "primary purpose of the [drug testing]
               program [] was to use the threat of arrest and
               prosecution in order to force women into treatment" for
               cocaine abuse. Id. at 1292. But the Court did not
               disapprove Edmond, or retreat from the statement in
               Edmond that there may be "special law enforcement needs"
               that justify more relaxed Fourth Amendment standards.
               (U)

          B. FISA May Be Used Primarily to Obtain Evidence for a
          Prosecution if the Government Also Has a Significant Non-Law
          Enforcement Foreign Intelligence Purpose. (U)

     In light of the foregoing argument, it is crystal clear that the
     Constitution permits FISA to be used where a "significant purpose"
     of the search or surveillance is to protect national security from
     foreign threats through non-law enforcement efforts. The
     Department explained that constitutionality of the "significant
     purpose" test for FISA in a letter sent to Congress in support of
     the USA Patriot Act. The letter is included as an attachment to
     the Memorandum of Law at App. 1:3, and is summarized below. (U)

     Relying on Keith and other decisions of the Supreme Court, the
     Department's letter maintains that "the primary purpose test is
     more demanding than that called for by the Fourth Amendment's
     reasonableness requirement." Letter 13. It explains that "because
     the executive can more fully assess the requirements of national
     security than can the courts, and because the President has a
     constitutional duty to protect the national security, the courts
     should not deny him the authority to conduct intelligence searches
     even when the national security purpose is secondary to criminal
     prosecution." Ibid. Thus, although most courts have adopted the
     primary purpose test "to police the line between legitimate
     foreign intelligence searches and pure domestic law enforcement
     operations," the letter concludes that the test is too strict in
     part because "the concerns of government with respect to foreign
     policy will often overlap with those of law enforcement." Letter
     11, 12. (U)

     The letter closes by observing that "[e]ven at the time of
     [FISA's] passage in 1978," there was a "growing realization that
     ‘intelligence and criminal law enforcement tend to merge in [the]
     area' of foreign counterintelligence and counterterrorism." Letter
     14 (quoting Senate Intelligence Report at 11). The letter opines
     that that merger has continued to the point where "the fine
     distinction between foreign intelligence gathering and domestic
     law enforcement has broken down" (ibid.):

          Terrorists, supported by foreign powers or interests, had
          lived in the United States for substantial periods of time,
          received training within the country, and killed thousands of
          civilians by hijacking civilian airliners. The [September 11]
          attack, while coordinated from abroad, was carried out from
          within the United States itself and violated numerous
          domestic criminal laws. Thus, the nature of the national
          security threat, while still involving foreign control and
          requiring foreign counterintelligence, also has a significant
          domestic component, which may involve domestic law
          enforcement.

     Based on these developments, the letter concludes that "Fourth
     Amendment doctrine, based as it is ultimately upon reasonableness,
     will have to take into account that national security threats in
     the future cannot be so easily cordoned off from domestic criminal
     investigation." Ibid. (U)

     Finally, there is one additional reason why the letter's
     conclusion is not in tension with the result in decisions such as
     Truong, which adopted the "primary purpose" test for warrantless
     surveillance conducted prior to the enactment of FISA. 629 F.2d at
     914 n.4. Even if Truong was correctly decided, and the
     Constitution requires a "primary" intelligence purpose for
     unilateral Executive Branch surveillance, a "significant"
     intelligence purpose for FISA surveillance conducted with the
     prior approval of an Article III court would be reasonable and
     therefore constitutional under the Fourth Amendment. The
     reasonableness standard depends on all of the protections for
     privacy afforded as part of a search or surveillance. Assuming
     that restrictions on the government's purpose for conducting a
     search do serve to protect privacy,19 reductions in those
     purpose-related protections are reasonable given the added
     protections afforded by FISA. (U)

          19 The assumption that restrictions on the purpose of FISA
          searches or surveillance protect privacy is open to question
          in light of the fact that intelligence and law enforcement
          officials seek the same information. Cf. Chagnon v. Bell, 642
          F.2d 1248, 1262 n.25 (D.C. Cir. 1980) ("Official
          surveillance, whether its purpose be criminal investigation
          or intelligence gathering, risks infringement of
          constitutional interests"). (U)

                               CONCLUSION (U)

     It is respectfully submitted that the judgment of the FISC in this
     case, including its adoption of the opinion and order of May 17,
     2002, and its new Rule 11, should be vacated, and the case
     remanded with directions to the FISC to grant the FISA application
     as submitted. (U)

          [signed: John Ashcroft]
          JOHN ASHCROFT
          Attorney General

          LARRY D. THOMPSON
          Deputy Attorney General

          THEODORE B. OLSON
          Solicitor General

          DAVID S. KRIS
          Associate Deputy Attorney General

          JAMES A. BAKER
          Counsel for Intelligence Policy

          JONATHAN L. MARCUS
          Attorney Advisor
          Department of Justice
          950 Pennsylvania Avenue, NW
          Washington, D.C. 20530
          (202)514-2882

     Dated: August 21, 2002