Reaction Of Judiciary Chairman Patrick Leahy (D-Vt.)
To The FISA Review Court’s Ruling
On FISA’s Scope
Nov. 18, 2002

“In listening to some of the Justice Department’s interpretation of this decision you would think that the review court had thrown out the constitutional restraints and thrown open everyone’s doors to government snooping.  That is not the case, and it would be wise for the Justice Department to read the decision more closely. 

“Importantly, the review court’s opinion recognizes a key principle that the Justice Department tried valiantly to persuade the court to ignore -- that the USA PATRIOT ACT made clear that the Justice Department may use FISA only to collect foreign intelligence information, and not for general law enforcement purposes.  As I pointed out to Justice Department officials at the Judiciary Committee's September 10 hearing, we have not given them authority to use FISA for the primary purpose of bringing a criminal prosecution for non-foreign intelligence crimes, such as crimes other than sabotage, espionage or international terrorism.

“The review court also sounded another important warning that Congress should heed before jumping on new proposals by the Justice Department to weaken FISA requirements.  Specifically, the court cited the importance of the FISA requirement of a connection to a foreign power to support the constitutionality of the overall statutory scheme.  Justice Department invitations to Congress to eliminate that connection are risky and could put this important statute in constitutional peril. 

“Unfortunately, the court's view that FISA gets ‘close and continuing oversight by Congress as a check against Executive Branch abuses’ is wishful and does not reflect today’s reality.  Under current law and under today’s lack of oversight cooperation from the Justice Department, the secret FISA process is so closed that Congress barely even heard about this very case, and it took repeated requests by the Judiciary Committee to even see the lower court's opinion.  But this opinion does underscore the importance of increased oversight in the future, and also of enhanced reporting of unclassified information so that Congress has at least basic information about how well or how poorly the law is working."

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