Foreign Intelligence Surveillance

The Foreign Intelligence Surveillance Act (FISA), as amended, in pertinent part, authorizes electronic surveillance, physical searches, and the use of pen registers and trap and trace devices to gather foreign intelligence information and sets out the procedures and circumstances under which each of these investigative tools may be used.108 In the event of a declaration of war, FISA authorizes the use of each of these investigative tools to gather foreign intelligence for up to 15 days without a court order. For electronic surveillance subsequent to a declaration of war, FISA provides, at 50 U.S.C.A. § 1811, that:

Notwithstanding any other law, the President, through the Attorney
General, may authorize electronic surveillance without a court order under
this subchapter to acquire foreign intelligence information for a period not
to exceed fifteen calendar days following a declaration of war by the
Congress.

In the context of physical searches, 50 U.S.C.A. § 1829 includes language similar to that in § 1811:

Notwithstanding any other provision of law, the President, through the
Attorney General, may authorize physical searches without a court order
under this subchapter to acquire foreign intelligence information for a
period not to exceed 15 calendar days following a declaration of war by the
Congress.

For pen registers and trap and trace devices, 50 U.S.C.A. § 1844 provides that

Notwithstanding any other provision of law, the President, through the
Attorney General, may authorize the use of a pen register or trap and trace
device without a court order under this subchapter to acquire foreign
intelligence information for a period not to exceed 15 calendar days
following a declaration of war by Congress.

None of these provisions appears to be triggered by an authorization for the use of force.

In addition to the foregoing provisions, FISA has been amended to authorize the use of these investigative tools without a court order for foreign intelligence purposes in "emergency" circumstances as determined by the Attorney General. To do so the Attorney General must (1) find that an emergency exists, (2) determine that the factual basis for the issuance of an order to approve such surveillance, physical search, or pen register or trap and trace device also exists, (3) advise a judge of the U.S. Foreign Intelligence Surveillance Court (FISC) that a decision to use the emergency authority has been made, and (4) apply to the FISC judge so notified for a court order as soon as practicable (but no later than within 72 hours in the case of an electronic surveillance or physical search or 48 hours in the case of a pen register or trap and trace device).109 These provisions do not expressly address the question of whether such emergency procedures might be triggered either by an authorization for the use of force or by a Congressional declaration of war. However, depending upon the circumstances involved, these emergency powers, or other provisions within FISA,110 might be utilized.


Endnotes

108
Electronic surveillance under FISA is addressed at 50 U.S.C.A. §§ 1801 et seq.; foreign intelligence physical searches are addressed at 50 U.S.C. §§ 1821 et seq.; and pen registers and trap and trace devices under FISA are dealt with at 50 U.S.C. §§ 1841 et seq.
109
For pertinent criteria and procedures applicable to such emergency situations, see 50 U.S.C. §§ 1805(f) (electronic surveillance), 1824(e) (physical search), or 1843 (pen register or trap and trace device. This authority is applicable only to gathering foreign intelligence information not concerning a United States person or information to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a U.S. person may not be conducted solely on the basis of First Amendment protected activities).
110
See, e.g., 50 U.S.C. § 1802 (electronic surveillance directed solely at acquisition of communications, not involving U.S. persons, of a foreign government or governments or components thereof, factions of a foreign nation or nations not substantially composed of U.S. persons, or entities openly acknowledged to be directed and controlled by a foreign government or governments, without a court order for periods up to one year in specific circumstances; this provision also covers electronic surveillance directed solely at acquisition of technical intelligence, other than spoken communications of individuals, from property or premises of such foreign governments, factions, or entities). For a more detailed discussion of FISA, see CRS, The Foreign Intelligence Surveillance Act: An Overview of the Statutory Framework and Recent Judicial Decisions (RL30465), by Elizabeth B. Bazan.