The opinion of the court was delivered by: MCLAUGHLIN
The defendants, all of Irish ancestry and all "active in the cause of Irish unity," are accused of smuggling arms and equipment from this jurisdiction, to the Provisional Irish Republican Army ("IRA") in Ireland. Affidavit of Michael Kennedy ("Kennedy Aff."), PP 9, 10. The indictment charges conspiracy and numerous offenses relating to the purchase of arms and ammunition in violation of 18 U.S.C. § 371; 26 U.S.C. §§ 5841, 5842, 5845, 5861, 5871; and 22 U.S.C. § 2778.
The Government has informed the defendants that it engaged in electronic surveillance of some of the defendants and that it intends to introduce at trial certain tape recordings of telephone conversations that were intercepted pursuant to the procedures of the Foreign Intelligence Surveillance Act of 1978 ("FISA"), 50 U.S.C. §§ 1801-1811. The Government moves under 50 U.S.C. § 1806(f), (g) for an Order declaring that the surveillance in this case was lawfully authorized and conducted. The defendants counter with a motion to suppress all the fruits of the FISA surveillance on the grounds that FISA, on its face and as applied in this case, violates the First, Fourth, Fifth, Sixth and Ninth Amendments and Articles I and III of the Constitution.
A. The FISA Investigation
Sometime during 1980, the Federal Bureau of Investigation ("FBI") commenced a foreign counter-intelligence investigation of a "suspected international terrorist organization operating in the New York area." Affidavit of David V. Kirby ("Kirby Aff."), P 2. On April 3, 1981, as part of this investigation a judge of the Foreign Intelligence Surveillance Court authorized electronic surveillance of defendants Falvey and Harrison, both United States citizens.
Id.; Kennedy Aff., P 22. From early April 1981 until June 19 or 20, 1981, when defendants Falvey and Harrison were arrested, the FBI conducted the authorized electronic surveillance. Kirby Aff., P 2. Telephone conversations were intercepted and taped, some of which the Government states are relevant to this prosecution. Id. at PP 4, 5.
Pursuant to FISA, the Government obtained the Attorney General's approval and informed the defendants and this court of its intention to use tapes of the relevant conversations at trial. 50 U.S.C. § 1806(b), (c). It provided the defendants with copies of transcripts of conversations it deemed relevant to this case, and the minimization logs of all the wiretaps on Falvey's and Harrison's telephones, but refused to disclose any other intercepted communications.
Kirby Aff., P 5; Kennedy Aff., PP 24-26, 28, 30.
B. Pre-FISA History of Foreign Intelligence Electronic Surveillance.
To place the constitutional issues raised by these motions in focus, some appreciation of history is required. Over forty-years ago, under orders from President Franklin D. Roosevelt, the Executive branch began to conduct warrantless electronic surveillance in "grave matters involving the defense of the nation." See S.Rep.No.95-604, 95th Cong., 2d Sess., reprinted in 4 U.S.Code Cong. & Admin.News 3904, 3911 (1978) ("Legislative History").
The constitutionality of this sort of surveillance went unchallenged and successive administrations continued to broaden this amorphous "national security exception" to the warrant requirement of this Fourth Amendment. Even Congress avoided the issue of its constitutionality. Indeed, in 1968 when it enacted Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. §§ 2510 et seq., which prohibits most warrantless electronic surveillance, Congress specifically refused to regulate foreign intelligence electronic surveillance and, instead, "left presidential powers where it found them." United States v. United States District Court, 407 U.S. 297, 303, 92 S. Ct. 2125, 2129, 32 L. Ed. 2d 752 (1972) (hereinafter referred to as "Keith "). See 18 U.S.C. § 2511(3).
Since the Watergate tragedy, however, when gross abuses of the executive's presumed authority to conduct warrantless electronic surveillance in the name of national security first came to light, there has been an understandable anxiety about unrestrained electronic surveillance.
Indeed, the Watergate era spawned the first real test of the Executive's power to conduct warrantless electronic surveillance in the name of national security. See Keith, 407 U.S. at 299, 314-21, 92 S. Ct. at 2128, 2135-2138.
Distinguishing between domestic and foreign security, the Supreme Court, in Keith, held that a claim of national security would no longer justify warrantless electronic surveillance having a domestic rather than foreign focus. Id. at 323-24, 92 S. Ct. at 2139-2140. The Court was not confronted with, and accordingly failed to address, the constitutionality of warrantless electronic surveillance in cases involving a foreign power or its agents. Id at 321-22 & n.20, 92 S. Ct. at 2138-2139 & n.20. It recognized, however, that there were distinctions between Title III criminal surveillances and those involving the national security, and urged Congress to delineate an appropriate standard for issuing warrants where national security was at stake. Id. at 322-23, 92 S. Ct. at 2139.
This invitation, along with the public's concern about Executive wiretaps and the uncertainty of the law,
ultimately led in 1978 to the enactment of FISA. See S.Rep.No.95-604, Legislative History, supra at 3916-17.
Whether FISA strikes an appropriate balance between the Government's need to conduct foreign intelligence surveillance and its citizens' rights to freedom from unreasonable governmental intrusion is a matter of national concern. The resolution of this issue, a case of first impression, must begin with a brief review of the provisions of FISA.
FISA establishes standards for obtaining a court order authorizing foreign intelligence electronic surveillance.
It created a Foreign Intelligence Surveillance Court on which seven United States District Court Judges, selected by the Chief Justice of the United States, sit. 50 U.S.C. § 1803(a).
To obtain a surveillance order, a federal officer, having first obtained the Attorney General's approval, must submit an application to one of the FISA Court judges. 50 U.S.C. § 1804(a) The application must detail the identity of the target; the information relied on by the Government to demonstrate that the target is a "foreign power" or an "agent of a foreign power;" evidence that the place where the surveillance will occur is being used, or is about to be used by the foreign power or its agent; the type of surveillance to be used; the minimization procedures to be employed; and certification that the information sought is "foreign intelligence information." See 50 U.S.C. § 1804(a)(1-11).
Before issuing the order, the FISA judge must make specific findings, including that:
there is probable cause to believe that (A) the target of the electronic surveillance is a foreign power or an agent of the foreign power: Provided, That no United States person may be considered a foreign power or an agent of a foreign power solely upon the basis of activities ...