Ultimately, the question becomes whether FISA, as amended by the Patriot Act, is a reasonable response based on a balance of the legitimate need of the government for foreign intelligence information to protect against national security threats with the protected rights of citizens. Cf.
Keith, 407 U.S. at 322-23 (in domestic security context, holding that standards different from those in Title III “may be compatible with the Fourth Amendment if they are reasonable both in relation to the legitimate need of the government for intelligence information and the protected rights of our citizens”). To answer that question–whether the Patriot Act’s disavowal of the primary purpose test is constitutional–besides comparing the FISA procedures with Title III, it is necessary to consider carefully the underlying rationale of the primary purpose test. It will be recalled that the case that set forth the primary purpose test as
constitutionally required was
Truong. The Fourth Circuit thought that
Keith’s balancing standard implied the adoption of the primary purpose test. We reiterate that
Truong dealt with a pre-FISA surveillance based on the President’s constitutional responsibility to conduct the foreign affairs of the United States. 629 F.2d at 914. Although
Truong suggested the line it drew was a constitutional minimum that would apply to a FISA surveillance, see id. at 914 n.4, it had no occasion to consider the application of the statute carefully.
The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.26 It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power. The question before us is the reverse, does FISA amplify the President’s power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government’s contention that FISA searches are constitutionally reasonable.
