Ever since its hurried enactment six weeks after the 9/11 terrorist attacks, the USA PATRIOT Act (1) has generated confusion and controversy. One thing about the Act upon which most people agree, however, is that it expanded government power to combat terrorism. (2) In particular, the Act supposedly tore down "the wall" between foreign intelligence and criminal law enforcement. (3) According to a recent federal court decision, however, the Patriot Act did not raze the wall; to the contrary, the Act raised, for the first time, a statutory basis for the wall. (4) On that view, the Patriot Act restricts, rather than expands, the government's power to fight terrorism. (5) This article argues that the court interpreted the Patriot Act incorrectly; but so did the federal courts that interpreted prior legislation to create the wall in the first place. The article urges Congress to clarify the matter--and truly tear down the wall--when it reauthorizes the Patriot Act. This article focuses on "one of the most important" (6) and "perhaps the most controversial" (7) provision in the Patriot Act. That provision amended the Foreign Intelligence Surveillance Act of 1978 (the FISA). (8) The FISA was enacted to regulate the executive branch's use of electronic surveillance to get foreign intelligence information. (9) The FISA generally requires the government to have advance judicial approval for such surveillance. To get judicial approval for electronic surveillance under the original FISA, a high-ranking government official with intelligence responsibilities had to certify to a court that "the purpose of the surveillance was to obtain foreign intelligence information." (10) Some lower federal courts interpreted this provision to mean that the "primary purpose" of the proposed surveillance had to be gathering foreign intelligence, rather than gathering evidence for a criminal prosecution. (11) This "primary purpose" test assumed incompatibility between the purpose of gathering foreign intelligence and the purpose of gathering evidence for a prosecution. To satisfy the primary purpose test, the Department of Justice accordingly adopted procedures limiting contact between foreign intelligence agents in the FBI and federal prosecutors. Those procedures came to be interpreted restrictively by the Justice Department and the court responsible for issuing FISA surveillance orders, the Foreign Intelligence Surveillance Court ("FISA Trial Court"). The restrictive interpretation produced what the public came to call "the wall." (12) The wall thus was mainly the result of (1) lower courts' interpretation of the original FISA's "purpose" provision; (2) the Justice Department's procedures for implementing the lower courts' interpretation; and (3) the restrictive interpretation of those procedures by Department officials and the FISA Trial Court. (13)
