Surveillance Oversight Database

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6
intercept. Finally, the NAS could review its intelligence reports to
determine if any of the concerned the target; this review would not
require a court order.
VI. LITIGATION

Since the Committee’s last report, the legality of FISA surveillances has been upheld by a federal district court in three cases:
United States v. Kozibioukian, CR. 82-460 (C.D. Cal.); United States
v. Hovsepian, CR. 82-917 (C.D. Cal.); and United States v. Harper,
CR. 83-0770 (N.D. Cal). Two other cases are pending in which FISA
is an issue: United States v. Kostadinov,

CR. 83-616 (S.D. N.Y.); and

United States v. Zehe, CR. 83-296 (D. Mass.).
There have been six instances since the inception of FISA in
which the target of a FISA surveillance has been prosecuted. Set
out at Appendix D is a statement of the Department of Justice’s position (contained in a letter from Assistant Attorney General
McConnell
committee

to Representative Robert Kastenmeier, Chairman, Subon Courts, Civil Liberties, and the Administration of

Justice, House Committee on the Judiciary) that a FISA surveillance (in contrast to a law enforcement electronic surveillance
under Title III of the Omnibus Crime Control and Safe Streets Act)
may be employed, even when prosecution is contemplated, as long
as significant foreign intelligence information is sought.
While expressing no opinion at this time as to the legal correctness

of the

Department’s

decision,

that, even if the Department’s

the

Committee

position is arguably

is of the

view

supported

by

the relevant legislative history, the wiser course is to utilize Title
Ill, rather than FISA, once prosecution is contemplated, unless ar-

ticulable reasons of national security dictate otherwise.
VII. MINIMIZATION

Central

lance

to the FISA

within

the

United

scheme

States

of authorizing
for foreign

electronic

intelligence

surveil-

purposes,

while assuring full protection for the privacy interests of U.S. persons, is the “minimization” process.®
The minimization procedures mandated by FISA provide vital
safeguards because they regulate the acquisition, retention, and
dissemination of information about U.S. persons, including persons

who are not the authorized targets of surveillance. Section 101(h) of
FISA defines “minimization procedure’ as:
(1) specific procedures, which shall be adopted by the Attorney General, that are reasonably designed in light of
the purpose and technique of the particular surveillance to
minimize the acquisition and retention, and prohibit the
dissemination, of nonpublicly available information concerning unconsenting United States persons consistent
with the need of the United States to obtain, produce, and
disseminate foreign intelligence information;
© See Appendix E and Appendix F for the NSA and FBI minimization procedures. The procedures provided in the Appendices have been subjected to security deletions which make no substantive difference.

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