The FISA Wall and Federal Investigation
The Foreign Intelligence Surveillance Act of 1978 (“FISA”) governs federal collection of foreign intelligence information, though there is an ongoing and critical debate about what the law means and how best to implement it. Much of the debate centers on a set of regulations, commonly referred to as “The Wall,” which limit the ability of law enforcement officials within the federal government to cooperate with intelligence officials involved in FISA investigations. Congress intended to dismantle The Wall with the USA PATRIOT Act, but one federal court has taken steps that may lead to The Wall being rebuilt.
Rebuilding The Wall would be a mistake. Ample and convincing evidence, largely in the form of government reports investigating specific intelligence failures, shows that The Wall was a disastrous policy. The arguments against The Wall exist mostly in case-study contexts responding to intelligence failures preceding events such as the Wen Ho Lee investigation or the September 11 attacks. This note aims to tie together the varied and isolated statements of government actors who were frustrated with the rules as they existed prior to the USA PATRIOT Act. If Congress rebuilds The Wall or if courts decide that certain aspects of The Wall are constitution-ally compelled, they should do so with the knowledge that they will be significantly hampering the ability of federal investigators to protect national security.
