Approved For Release 2008/09/15 : CIA-RDP86B00338R000200330014-1
APPENDIX D
U.S. DEPARTMENT OF JUSTICE,
OFFICE OF LEGISLATIVE AFFAIRS,
Washington, D.C., September 26, 1982.
Hon. Ropert W. KAsTENMEIER,
Chairman, Subcommittee on Courts, Civil Liberties and the Administration of Justice, Committee on the Judiciary, House of Representatives, Washington, D.C.
Dear Mr. CHAIRMAN: In response to the questions attached to
your letter of August 17, 1983, concerning the Foreign Intelligence
Surveillance Act, we are forwarding the attached answers.
Please let us know if we can be of any further assistance regarding this matter.
Sincerely,
Rogpert A. McConnNeELL,
Assistant Attorney General.
Attachment.
3. It is our view that the logic of United States v. Truong, 629
F.2d 908 (4th Cir. 1980) has little vitality after the enactment of the
Foreign Intelligence Surveillance Act. In Truong the Court held a
warrantless foreign intelligence electronic surveillance was lawful
only when the purpose of the surveillance was “primarily” for foreign intelligence purposes. In so holding the court recognized that,
in view of the warrantless nature of pre-FISA foreign intelligence
electronic surveillances, there was no opportunity for an impartial
magistrate to review the probable cause for a surveillance until
after the surveillance had been implemented and a party who has
been overheard challenged the legality of the surveillance in litigation. Under FISA the probable cause for a surveillance is reviewed
by a Federal District Court judge prior to implementation, at
which time the purpose of the surveillance is also reviewed—thus,
the Truong rationale would no longer apply.
Since
the
enactment
of FISA,
the
two
courts
which
have
ad-
dressed the issue of whether the Truong primary purpose test still
applies in the context of a FISA surveillance appear to have
reached somewhat different conclusions. In United States v. Falvey,
540 F. Supp. 1306 (E.D.N.Y. 1982), Judge McLaughlin held that the
Truong primary purpose test no longer applied, since a FISA surveillance is authorized by court order.
What the defendants steadfastly ignore, however, is that
in this case—unlike Truong—a court order was obtained
authorizing the surveillance. After the surveillance was
conducted in Truong (without a warrant), Congress enacted
FISA,
imposing
intelligence
a warrant
information.
requirement
See
pp.
to obtain
1312-1813,
foreign
supra.
An
(14)
Approved For Release 2008/09/15 : CIA-RDP86B00338R000200330014-1