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In Re Appeal from July 19, 2002 Decision of the United States Foreign Intelligence Surveillance Cour
Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of a 2002 decision of the United States Foreign Intelligence Surveillance Court imposing certain “minimization requirements” on an order authorizing electronic surveillance of an “agent of a foreign power” who is a American citizen.
Argument: The Fourth Amendment requires a warrant and probable cause to conduct electronic surveillance of an American citizen where the “primary” purpose of the surveillance is criminal investigation, even if the collection of foreign intelligence information is a “significant” secondary purpose. The USA PATRIOT Act in 2001 unconstitutionally amends the Foreign Intelligence Surveillance Act (FISA) to permit the Department of Justice (DOJ) to conduct warrantless electronic surveillance of an American citizen when foreign intelligence is a “significant purpose” rather than the “primary purpose.” FISA’s so-called “privacy protections” are “illusory” and do not “justify abandoning the Fourth Amendment warrant and probable cause requirements.”