United States v. Rosen

In 1978, Congress responded to concerns about a foreign intelligence exception to the Fourth Amendment’s warrant requirement by implementing the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. § 1801. The Act authorized certain searches and electronic surveillance, and instituted specific steps that the government had to follow in acquiring approval for those activities, including minimization procedures meant to protect against procurement and dissemination of unnecessary information collected during surveillance. The procedures called for a Foreign Intelligence Surveillance Court (FISC) judge to make a probable-cause determination based upon the government’s application and issue an order in compliance with FISA. Some time after FISA’s enactment, Steven Rosen and Keith Weissman (defendants) were charged with conspiracy to communicate national defense information in violation of federal law. It was alleged that Lawrence Franklin, a Department of Defense employee who had access to classified information, communicated that information to Rosen and Wiessman, who were lobbyists for the American-Israel Public Affairs Committee (AIPAC). Rosen and Wiessman then communicated the information to unauthorized persons, including members of the media and foreign officials. To carry out its investigation, the government obtained orders from the FISC, pursuant to FISA. Because the investigation was related to national security, the orders were classified. Rosen and Wiessman moved to obtain disclosure of the applications and suppress evidence obtained based on arguments that FISC incorrectly determined that the defendants were agents of a foreign power and that the government failed to comply with FISA minimization procedures.