End run around the Fourth

The Patriot Act blurred the key contrasts between foreign-intelligence-gathering and domestic law enforcement. Now, intelligence-gathering need not be the sole purpose of FISA-warrant-authorized surveillance.

Instead, as a result of Section 218 of the Patriot Act, intelligence-gathering need only be "a significant purpose" of FISA-authorized surveillance.

The result has been that not just CIA agents, but FBI agents as well -- or even state police, cooperating with the CIA and FBI -- have the ability to utilize FISA's secrecy and lower legal standards. No longer must they prove "probable cause" that a crime has been, or is being, committed -- as the Fourth Amendment requires.

Instead, all they have to prove is that foreign intelligence is a "significant" purpose of the surveillance. Another purpose can be domestic law enforcement.

As I pointed out in an earlier column, the result is to to open the door to an end run around Americans' Fourth Amendment rights. Unable even to see the basis for the secret FISA warrant that authorized a search of their home or business, Americans may not be able to challenge that warrant in a criminal proceeding.

Given that FISA warrants allow federal agents to avoid Fourth Amendment challenges, its no surprise that they are being used more and more frequently. Indeed, some data indicates that there is now more surveillance being authorized by the FISA court, than by all the other federal courts, in the 50 states, combined.

[ More from Findlaw / CNN ]