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National Security Investigations and Prosecutions

By David Kris, J. Douglas Wilson

Last Updated: 10/31/2007

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Description

This treatise presents the law governing, and related to, national security investigations (NSIs). An NSI is an investigation conducted by the United States government to acquire information about foreign threats to the national security, e.g., international terrorism. National security law is often inaccessible, and can be particularly hard to follow when divorced from the context of historical tradition, governmental structures, and operational reality in which it functions. This treatise explores the full background of NSIs, both from a pre-911 and a post-911 perspective, providing a powerful tool for any attorney handling a case involving a national security investigation or prosecution.

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Features

Covers laws that apply, and issues that arise, when national security investigation leads to prosecution or other litigation
Describes the investigative tools available to the government, explaining how they work and how they can be challenged
Explains the federal government's power, and limits on that power, in the area of national security investigations
Provides step-by-step guidance for companies regarding civil and criminal liability for actions involving electronic surveillance

Summary Of Contents

Part 1. History
Chapter
1. An Overview and History of the U.S. Intelligence Community
2. Regulation of the Intelligence Community Resulting from a History of Abuse
3. The History of National Security Electronic Surveillance and Physical Searches
Part II. NSI Techniques
1. An Overview of FISA
2. The Foreign Intelligence Surveillance Court and the Court of Review
3. FISA Applications and Orders for Electronic Surveillance and Physical Searches
4. FISA's Definitions of Electronic Surveillance and Physical Search
5. FISA's Other Key Definitions
6. FISA Minimization
7. The Rise and Fall of the FISA Wall
8. The Constitutionality of FISA without the Wall, FISA "Probable Cause," and FISA Orders as Fourth Amendment "Warrants"
9. FISA Activity without Advance Judicial Approval
10. Congressional Oversight of FISA and Reporting
11. Civil and Criminal Penalties for Misuse of FISA
12. The President's Statutory and Constitutional Authority to Conduct Foreign Intelligence Surveillance and Searches—The NSA Surveillance Program
13. Surveillance and Searches Abroad—Section 2.5 of Executive Order 12333
14. Pen Register and Trap and Trace Surveillance
15. FISA Orders for the Production of Business Records and Tangible Things
16. National Security Letters
17. Mail Covers
18. The Grand Jury and Material Witness Warrants
Part III. NSI Litigation and Prosecutions
1. An Overview of National Security Litigation and Prosecutions
2. An Overview of CIPA
3. Discovery of Classified Information (CIPA Sections 3 and 4)
4. Use of Classified Information at Trial (CIPA Sections 5-8)
5. Use of Information Acquired from FISA
6. FISA's Notice Provisions
7. FISA's Procedures for Suppression and Discovery Motions
8. Disclosure of FISA Applications and Orders
9. Suppression of FISA Information
10. Appeal of FISA Disclosure and Suppression Orders
Appendices
1. The National Security Act of 1947 (as amended)
2. Executive Order 12333: United States Intelligence Activities (as amended)
3. The Foreign Intelligence Surveillance Act of 1978 (as amended)
4. The Attorney General's Guidelines for FBI National Security Investigations and Foreign Intelligence Collection (redacted)
5. Department of Justice Intelligence Sharing Procedures (March 6, 2002)
6. FBI Woods Procedures
7. Department of Justice Annual FISA Letters
8. Rules of the Foreign Intelligence Surveillance Court
9. The Classified Information Procedures Act (as amended)
Table of Laws and Rules
Table of Cases
Index