TRIALS BY FIRE - Belfer Center for Science and International Affairs

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TRIALS BY FIRE - Belfer Center for Science and International Affairs

special investigative tools for prosecutors and law enforcement officials to employin terrorism cases. Some of these tools were created after 9/11, while otherspredate 2001, reflecting the evolving difficulty of prosecuting internationalterrorists in domestic criminal courts.• The Foreign Intelligence Surveillance Act (FISA): Congress recentlyamended FISA 332 to make it easier to search or conduct electronicsurveillance on “a group engaged in international terrorism or activitiesin preparation therefore.” 333 FISA lets officials apply to the specialForeign Intelligence Surveillance Court for authorization of a searchwarrant rather than having to follow the more onerous applicationprocedures necessary in a regular federal court.• National Security Letters (NSLs): NSLs provide law enforcement agentswith the power to issue administrative subpoenas for certain kinds ofinformation—such as banking and telecommunication records—withoutthe need for a court order. Section 505 of the USA-PATRIOT Actexpanded the use of these letters to terrorism investigations. 334 Andwhile “[i]nformation from national security letters most often is usedfor intelligence purposes rather than for criminal investigations,” 335 ithas also been successfully used in terrorism prosecutions. Such administrativesubpoenas are particularly useful in terrorism prosecutions becausethey grant law enforcement agencies to ability sidestep a numberof legal hurdles presented by a court-ordered subpoena.However, there is concern that law enforcement agencies haveabused their discretion to issue NSLs. For example, the FBI selfreportedand apologized in 2007 for improperly using the letters toillegally collect information. 336• Sneak and Peeks: The USA-PATRIOT Act of 2001 authorized ‘sneakand peek’ searches. In a sneak-and-peek, or ‘delayed-notice’ search,law enforcement officials can enter a location where an individualmight have an expectation of privacy, such as a car or a home, withoutimmediately notifying the owner. Law enforcement officials haveargued that the searches can be valuable when detectives do not wantthe targeted individual to know that he or she is under investigation.337 Although such searches have been challenged in the judicialsystem under the Fourth Amendment rights against illegal searchand seizure, district courts have upheld the constitutionality of thesearches. Nevertheless, these surreptitious searches are overwhelminglyused for narcotics cases. 338120 Trials by Fire: Counterterrorism and the Law

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