RONALD W. PELTON, PETITIONER V. UNITED STATES OF AMERICA No. 87-6433 In the Supreme Court of the United States October Term, 1987 Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1-20) is reported at 835 F.2d 1067. JURISDICTION The judgment of the court of appeals was entered on December 18, 1987. The petition for a writ of certiorari was filed on February 13, 1988. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the district court properly admitted evidence obtained through electronic surveillance conducted pursuant to the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. 1801 et seq. STATEMENT Following a jury trial in the United States District Court for the District of Maryland, petitioner was convicted of conspiracy to commit espionage (18 U.S.C. 794(c)), espionage and attempted espionage (18 U.S.C. 794(a)), and unauthorized disclosure of classified information (18 U.S.C. 798(a)). /1/ He received concurrent life terms on the espionage and conspiracy counts, and a concurrent ten-year term on the unauthorized-disclosure count. 1. In January 1980, petitioner, a former employee of the National Security Agency (NSA), decided to sell classified information concerning NSA programs to the Soviet Union. Through a series of telephone calls, intercepted by electronic surveillanc authorized by the Foreign Intelligence Surveillance Act (FISA), 18 U.S.C. 1801 et seq., he contacted Soviet officials and arranged a meeting for that purpose. For the following three years, petitioner furnished the Soviets information about several classified NSA operations and received more than $35,000 for his services. Petitioner's activities were discovered when a Soviet defector exposed him and NSA officials recognized petitioner's voice on the recorded conversations. During the ensuing investigation in 1985, the FBI conducted electronic surveillance of petitioner pursuant to a new FISA authorization. Pet. App. 3-4. On November 24, 1985, FBI agents interviewed petitioner after he agreed to meet with them to discuss a "national security matter." During the interview, the agents recounted to petitioner a "hypothetical" story concerning a former NSA employee who sold secrets to the Soviets. The details of the story reflected petitioner's activities. Petitioner initially denied that he was involved with the Soviets. Later, however, he responded in detail to the FBI agents' questions concerning the procedures he used in contacting the Soviets and receiving payment from them. Petitioner also discussed his tax and drug abuse problems with the FBI agents, but he refused to reveal the specific classified information he gave to the Soviets without "guarantees" that he would not be prosecuted. Pet. App. 4-6. The agents met with petitioner again later that evening. During the interview, petitioner discussed the details of a classified project that he had revealed to the Soviets. After being advised of his Miranda rights, petitioner acknowledged that his actions in selling information to the Soviets had harmed the United States. The agents then arrested petitioner on the instruction of their superiors. Pet. App. 6-8. 2. The court of appeals affirmed petitioner's convictions. The court rejected his claim that FISA is unconstitutional. The court aligned itself with the unanimous view of other circuits and held that "FISA's numerous safeguards provide sufficient protection for the rights guaranteed by the Fourth Amendment within the context of foreign intelligence activities" (Pet. App. 18). The court of appeals also rejected petitioners' claim that the government's surveillance in 1985 was, in fact, conducted primarily for the purpose of a criminal prosecution rather than to obtain foreign intelligence information. After reviewing the certifications made by government officials in applying for foreign-surveillance authorization, the court of appeals concluded that the district court correctly found that the primary purpose of the investigation was to gather foreign intelligence information. Finally, the court held that an otherwise valid FISA surveillance is not illegal simply because the government can anticipate that its fruits may later be used as evidence in a criminal trial. ARGUMENT Petitioner contends (Pet. 5-9) that FISA violates the Fourth Amendment. This claim has been rejected by every court of appeals to have considered it. Moreover, petitioner's claim is meritless. Accordingly, no further review is warranted. 1.a. FISA was enacted in 1978 "to create a 'secure framework by which the Executive Branch may conduct legitimate electronic surveillance for foreign intelligence purposes within the context of this Nation's commitment to privacy and individual rights.'" See United States v. Pelton, 835 F.2d 1067, 1074 (4th Cir. 1987), quoting S. Rep. 95-604, 95th Cong., 1st Sess. 15 (1977). The elaborate procedures in FISA reflect Congress's balance of the competing considerations in this sensitive area of national security. The statute was enacted only after exhaustive study by Congress and the Executive Branch. See S. Rep. 95-604 at 3-4; S. Rep. 95-701, 95th Cong., 2d Sess. 13-14 (1978). Prior to the enactment of FISA, virtually every court to consider the question had held that the President has inherent authority to conduct electronic surveillance to collect foreign intelligence information and that there is an exception to the Fourth Amendment's warrant requirement for such surveillance. See United States v. Duggan, 743 F.2d 59, 72 (2d Cir. 1984) (collecting cases); United States v. Trung, 629 F.2d 908, 912-916 (4th Cir. 1980), cert. denied, 454 U.S. 144 (1982); cf. Mitchell v. Forsyth, 472 F.2d 511, 533 (1985). Although this Court left that question open in United States v. United States District Court, 407 U.S. 297 (1972), it suggested that a flexible approach may be appropriate in the context of foreign intelligence and that the Fourth Amendment warrant requirement "may vary according to the governmental interest to be enforced and that nature of citizen rights deserving protection." Id. at 322-323. FISA was enacted to "'remove any doubt as to the lawfulness of (foreign intelligence) surveillance.'" Duggan, 743 F.2d at 73, quoting H.R. Rep. 95-1283 (Pt. 1), at 25. FISA "provides (both) external and internal checks on the executive" in the conduct of electronic surveillance. S. Rep. 95-604 at 16. The external checks are supplied by the requirement that the Executive Branch obtain prior judicial authorization from a specially constituted FISA court for such surveillance. The internal checks are supplied by provision for certification and approval of applications for such authorizations by top-level Executive Branch officials. Congress intended that the requirement for top-level approval would serve to ensure that the applications would receive special scrutiny and that only "good applications" would be presented to the FISA court. H.R. Rep. 95-1283 (Pt. 1), at 25. The statutory requirements for a FISA application include a "statement of the facts and circumstances relied upon by the applicant to justify his belief that (A) the target of the electronic surveillance is a foreign power or an agent of a foreign power; and (B) each of the facilities or places at which the electronic surveillance is directed is being used or is about to be used by a foreign power or an agent of a foreign power" (50 U.S.C. 1804(a)(4)). In addition, the application must contain (1) a certification that the purpose of the surveillance is to secure foreign intelligence information, and (2) a statement of the basis for believing that the information sought is the type of foreign intelligence information designated and that it cannot reasonable be obtained by normal investigative techniques. 50 U.S.C. 1804(a)(7)(B) and (E). On the basis of such an application, a judge of the FISA court shall enter an order approving the surveillance if he finds that: (1) the President has authorized the Attorney General to approve applications for foreign intelligence information; (2) the application has been made by a federal officer and has been approved by the Attorney General; (3) there is probable cause to believe that the target of the surveillance is a foreign power or an agent of a foreign power and that each of the targeted places is used or is about to be used by a foreign power or agent of a foreign power; and (4) that the proposed minimization procedures meet the requirements set forth in Section 1801(h) of the statute. 50 U.S.C. 1805(a). In this case, both courts below reviewed the FISA application submitted by goverment officials and concluded that it contained each of the certifications required by FISA. b. The courts of appeals that have considered the question have rightly held that FISA satisfies the demands of the Fourth Amendment. See United States v. Cavanagh, 807 F.2d 787 (9th Cir. 1987); United States v. Duggan, 743 F.2d 59 (2d Cir. 1984). As we described above, and application may be granted only if the reviewing judge finds that there is probale cause to believe that the target is an agent of a foreign power. Moreover, the application must certify that the purpose of the surveillance is to obtain foreign intelligence information and that such information cannot be obtained by routine investigative techniques. 50 U.S.C. 1804(a). FISA also sets forth "minimization procedures" for the protection of targets (50 U.S.C. 1801), and limits the duration of of the surveillance (50 U.S.C. 1805(d)). Accordingly, the provisions of FISA are "reasonable both in relation to the legitimate need of the Government for intelligence information and the protected rights of our citizens." United States District Court, 407 U.S. at 323. 2. Contrary to petitioner's contention (Pet. 7-9), the government did not violate FISA's requirement that the electronic surveillance be "for the purpose of obtaining foreign intelligence information" (50 U.S.C. 1802(b)). Both courts below found that the "primary purpose of the surveillance, both initially and throughout, was to gather foreign intelligence information" (Pet. App. 19). This finding, closely tied to the unique circumstances of the case, does not warrant this Court's review. To be sure, information derived from the surveillance was ultimately used in the prosecution of petitioner. But as the court explained in Duggan, 743 F.2d at 78, an "otherwise valid FISA surveillance is not tainted simply because the government can anticipate that the fruits of such surveillance may later be used, as allowed by (50 U.S.C.) 1806(b), as evidence in a criminal trial." Hence, the government did not violate FISA simply because investigators may have contemplated a criminal prosecution against. petitioner. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. CHARLES FRIED Solicitor General JOHN C. KEENEY Acting Assistant Attorney General JOHN F. DE PUE Attorney APRIL 1988 /1/ The trial judge entered a verdict of not guilty on one count alleging attempted espionage, and the jury returned a verdict of not