FISC and TECA

[Kim Lane Scheppele]

I don't read 50 USC 1806 (h) that way -- it refers back to 1806(g), and the
courts mentioned there are district courts rather than the FISC or FISCR.
As far as I understand it, FISC and FISCR are limited to granting or denying
warrant requests, and they have no general control over whether regular
Article III courts admit or suppress evidence from FISA surveillances in
criminal cases.   (This section was amended by the PATRIOT Act so perhaps
something slipped by that I didn't notice.)

I agree completely with Bill Funk's legislative history -- it's refreshing
to recall that FISA was one of the reform laws to emerge from the Church
Committee report.   But the war on drugs, and now the war on terrorism, have
made FISA much less about bringing some legal discipline to domestically
based espionage and much more about finding ways to circumvent the
relatively rigorous requirements of Title III searches.    It was during the
1990s that the use of FISA skyrocketed so that by the end of the decade
there were more FISA warrants granted by the FISC than there were TItle III
warrants granted in all of the federal courts combined.  And that was BEFORE
9/11.

--kim


Kim Lane Scheppele
Professor of Law and Sociology
University of Pennsylvania
3400 Chestnut Street, Philadelphia PA 19104
Phone:  215-898-7674   Fax 215-573-2025
Email:  kimlane at law.upenn.edu
----- Original Message -----
From: "William Funk" <funk at LCLARK.EDU>
To: <CONLAWPROF at listserv.ucla.edu>
Sent: Monday, November 25, 2002 9:22 PM
Subject: Re: FISC and TECA


> Kim Lane Scheppele wrote:
>
> >One question to Eddie on Article III court status:  What would your guess
be
> >as to the likely influence of the FISCourt of Review's opinion on other
> >courts?
> >
> The first question is how either the FISC or the FISCR decision could
> ever be considered by another court.  FISA goes to great lengths to
> provide that attempts to suppress information or otherwise challenge
> surveillances under FISA be considered only by the FISC or FISCR, by
> providing for removal of those questions to those courts, the decisions
> by which are "binding upon all courts of the United States and the
> several States except the [FISCR] and the Supreme Court."  See 50 USC
> 1806 (h).
>
> Bill Funk