In re: Sealed Case No. 02-001

In re: Sealed Case No. 02-001, 310 F.3d 717 (2002), is a per curiam decision by the United States Foreign Intelligence Surveillance Court of Review in which it reviewed restrictions that were placed upon a Foreign Intelligence Surveillance Act (FISA) application by the Foreign Intelligence Surveillance Court (FISC) on May 17, 2002. The Court of Review reversed the FISC's restrictions, stating that they "are not required by FISA or the Constitution". This opinion represents the first meeting of and first opinion by the Court of Review. For the purposes of review, the FISC's modification of the requested application worked as a "denial", thus giving the Court of Review jurisdiction to take the case.

The Court noted that the case raised important questions of statutory interpretation and the constitutionality of provision of FISA. In particular, the opinion addressed changes made in the act due to the passage of the Patriot Act. The Court addressed these questions in the context of a single request for an order authorizing electronic surveillance made by the government to the FISC. The FISC approved the requested order but "imposed certain requirements and limitations" on the government. The government appealed to the Court of Review.

The Court first stated that there appeared to be no disagreement between the government and the FISC as to the propriety of the requested surveillance because the FISC found that the government had shown probable caused to believe that the target is an agent of a foreign power. The government therefore only appealed the restrictions imposed. The restrictions include orders that

law enforcement officials shall not make recommendations to intelligence officials concerning the initiation, operation, continuation or expansion of FISA searches or surveillances. Additionally, the FBI and the Criminal Division [of the Department of Justice] shall ensure that law enforcement officials do not direct or control the use of the FISA procedures to enhance criminal prosecution, and that advice intended to preserve the option of a criminal prosecution does not inadvertently result in the Criminal Division’s directing or controlling the investigation using FISA searches and surveillances toward law enforcement objectives.

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