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SOLICITOR GENERAL THEODORE OLSON: [Criminal prosecution] is one important tool because we know from events that have occurred in the past, that disrupting a cell of terrorists or disrupting a potential conspiracy by taking people off the street, certain people off the street, taking them into custody, may interrupt or interfere with the contemplated act, thus sparing the nation devastating consequences. OLSON: At some point a dichotomy developed, and I say it’s a false dichotomy, between the notion of foreign intelligence and law enforcement purposes. OLSON: To the extent that a FISA-approved surveillance uncovers information that’s totally unrelated — let’s say that a person who is under surveillance has also engaged in some illegal conduct, cheating. JUDGE EDWARD LEAVY: Income tax. OLSON: Income tax. What we keep going back to is practically all of this information might in some ways relate to the planning of a terrorist act or facilitation of it. JUDGE LAURENCE SILBERMAN: Try rape. That’s unlikely to have a foreign intelligence component. OLSON: It’s unlikely, but you could go to the individual and say we’ve got this information and we’re prosecuting and you might be able to help us. I don’t want to foreclose that. SILBERMAN: It’s a stretch. OLSON: It’s a stretch but it’s not impossible either. JUDGE RALPH GUY: This is, as I said at the outset, our first appeal. So along comes the Patriot Act which clearly and I think beyond peradventure expands government’s powers, not contracts it. And here we have the first appeal. So there’s kind of a touch of irony in that. GUY: Isn’t it partially your position that the FISA court by, in effect, packaging its opinion in terms of minimization was indirectly reinserting the “primary purpose” standard back into the whole process? OSLON: Exactly. And they said so. SILBERMAN: Is it your view the government’s motivation in constitutional terms, not statutory, but in constitutional terms the government’s motivation, the degree of interest in the government seeking criminal prosecution is wholly irrelevant in constitutional terms? OLSON: Well, I hate — whenever I’m faced with that kind of question, wholly irrelevant, I hate to say so because I don’t know how we can conceive – SILBERMAN: Excuse me, Mr. Olson, your brief actually says that motivation is irrelevant. OLSON: And I believe that is the case. Whether one could come up with a conceivable concept in which someone is out to get someone, or something like that, I don’t know but I believe that with respect to FISA the motivation needs to be to collect information to protect the public and to protect the Republic. That’s what the definition of foreign intelligence is. SILBERMAN: I’m talking constitutional. OLSON: I understand that and I agree with what is said in the brief. GUY: Nobody ever maintained, that I know of, never successfully maintained, or there’s a court decision challenged successfully the president’s right, for example, to do this kind of warrantless activity in terms of true foreign intelligence. And the concern that the FISA court I think is wrestling with is to keep FISA from swallowing Title III. That’s the concern. SILBERMAN: Isn’t it clear as well though that Congress had to mean that the other purpose would be criminal when it said that if a significant purpose of surveillance is to obtain foreign intelligence information, it had to mean that the other purpose would be criminal? GUY: If they [lower court] were here today I suspect that they might say something like the difficulty with the change in the statute going to “significant purpose” is that the standard is no longer quantifiable in any reasonable means, that any fool who has done this for years can prepare an application that would set forth prima facie material to indicate that there’s a significant purpose because significant purpose, like the substantial evidence standard, doesn’t foreclose the fact that there is substantial evidence on the other side. � I’m now speaking as � the [FISA court] representative. Given the fact that we have this situation and given the fact that we see our charge partially to protect U.S. persons, to extend them the same protections they would have under Title III and the Fourth Amendment except insofar as those protections would intrude on the foreign intelligence gathering ability, we feel that these procedures we’ve put in place to the best of our ability are the only things we can think of to guarantee that there will be some meaningful requirement that this really be a foreign intelligence matter. OLSON: There are several protections and the Congress was aware of them. One, by making the attorney general and high level official � sign their name. That is one assurance. Another is that to the extent that this information is to be used at all in a criminal procedure, the attorney general must approve that. Number three, notification is appropriate at that point to an Article III judge who is in charge of that. And there may be suppression motions and legitimate — and proceedings with respect to the application of those individual rights under those circumstances, and then there can be a review up the line from the district court’s decision. � And we submit that this process here by which the court is going to regularly receive these applications, it’s going to see how they’re done, it’s going to see the people that are applying them and is going to see the attorney general’s signature, we submit both of them from a constitutional standpoint and from a statutory standpoint, that those protections exist.

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