Shu’ubiyya or Security? Preserving Civil Liberties by Limiting FISA Evidence to National Security Prosecutions
Part I of this Note addresses the restrictions on intelligence gathering under FISA prior to 9/11 and the motivations underlying the Patriot Act’s revisions to FISA. Part II discusses the problems with the “primary purpose” test, which was in effect prior to the Patriot Act’s revisions to FISA. Part III reviews the various policy and constitutional arguments made against the Patriot Act’s “significant purpose” test. Part IV proposes that Congress enact a new “inextricably intertwined” test to govern the admission of FISA material in criminal prosecutions. Specifically, this Part looks at sixty criminal cases in which FISA material was admitted and evaluates how the “inextricably intertwined” test would play out in those cases. Part V examines the arguments in favor of the inextricably intertwined test. Finally, Part VI counters the argument that the inextricably intertwined test violates the plain view doctrine.