FISA
Posted: Wed Dec 16, 2009 4:46 pm
As Mr. Fenster and Ms. Morrison mentioned in Debate today, we haven't been doing much Debate on the forums. FISA is a really interesting and controversial topic so get debating! Here's the brief:
Model Congress
Foreign Intelligence Surveillance Act
January 6
One of the primary roles of government is to protect its citizens from foreign invasion or attacks on their safety. As Sun Tzu said, “All warfare is based on deception.” Intelligence gathering, dissemination, and exploitation are of the utmost importance in national security matters. In the pre-Cold War era this focused on troop movements and supply trains; then, nuclear stockpiles were added to the mix; now, the priority is preventing the next terrorist attack. Unfortunately, intelligence, though vital, is by its nature something that must generally be sought through covert means, and the government must do its utmost to protect both the bodies and civil liberties of Americans. Both a police state and an absence of defenses are unacceptable.
The Foreign Intelligence Surveillance Act, first passed by Congress in 1978, was one of the first pieces of legislation designed to regulate advanced espionage, including electronic surveillance. At first the act only covered the communications foreign powers or agents of foreign powers, which included spies and terrorist groups but which made sure to minimize the targeting of United States nationals. FISA primarily covered activities such as wiretapping. At the time of its passage, President Carter hailed it as striking a remarkable balance between civil rights and security.
The procedure for wiretapping outlined in FISA is designed to combine flexibility with oversight. Warrants are needed to surveil a target, and the warrant must come from the Foreign Intelligence Surveillance Court. FISC is a secret court, and at the time of its creation it consisted of seven federal district judges, appointed by the Chief Justice of the Supreme Court, who each served a term of 7 years and could not serve again. The office of the Attorney General collects requests for electronic surveillance from the appropriate federal officers or the President. The requests are then sent for modification or approval. Warrants are given for the acquisition of technical intelligence. They last for five years.
Although ideally surveillance would involve a warrant obtained beforehand, the nature of intelligence is that a lot of it is opportunistic and based in small periods of time. There is always the danger that during the time it takes to acquire a FISA warrant from FISC, crucial last-minute information about an attack could be relayed and made available for interception. Because of this, there are procedures for controlled warrantless wiretapping in place. If the Attorney general can show that surveillance is only directed at foreign powers, the President can authorize that surveillance. In a second circumstance, the federal government can engage in surveillance in an emergency situation only if the Attorney General feels that a warrant could have been obtained anyway. Finally, the federal government can engage in surveillance in the first 15 days after a declaration of war by Congress.
The preservation of the warrant system is important due to the need to protect American civil liberties and thus justify the continued existence of and loyalty to the state, while actually maintaining protection of the United States and its interests. The Fourth Amendment to the Constitution protects against “unreasonable searches and seizures” and demands warrants when searches are carried out. For years this was not highly considered and presidential power was extensive and without regulation. The Church Committee, for example, uncovered several instances of abuse of power and surveillance by the various intelligence agencies and the President. Those involved with electronic surveillance included spying on individuals such as Civil Rights activists, Vietnam War protesters, and others; spying on religious and academic organizations in the United States; and the passing of a document to President Kennedy essentially telling him to ignore certain parts of the Constitution in order to defeat enemies of the nation in matters of intelligence. Revelations such as this and the Watergate Scandal made the citizens of America want more oversight of their elected officials, leading to the creation of FISA. After all, in the Supreme Court’s decision in Katz v. United States, the Fourth Amendment protected “people, not places”, when the person had a “reasonable expectation of privacy”.
Following the events of September 11, 2001, American support for counterterrorism surged. In the heat of the moment, the PATRIOT ACT passed, which strengthened the federal government’s powers in FISA, among other things. One of its more significant changes was to change the purpose of electronic surveillance. At first “the purpose” had been to collect foreign intelligence; now this was “a significant purpose”. Also, intelligence agencies could share information with law enforcement and look for information in emails. Roving wiretaps were permitted, and the amount of FISC judges was raised to eleven. In 2008 the FISA Amendments Act raised the time in which warrantless wiretapping could take place to one year.
A public backlash against electronic surveillance came with the 2005 discovery of the Terrorist Surveillance Program. It was revealed that President Bush had authorized massive amounts of wiretaps by the National Security Agency in the fall of 2001, without bothering with the use of FISC. The questions of the programs constitutionality and effectiveness are up for debate. Another thing that worries opponents of the current system is the idea that FISC only serves as a rubber stamp for federal decisions. Between 1997 and 2002, FISC approved 5335 surveillance requests and denied only one. Of course, the argument could be made that this was because good evidence was presented, and it would be hard to prove otherwise, as the records are kept secret. There have also been occurrences of NSA employees abusing their power to listen to personal conversations, which ought to be addressed.
The overall issue for Congress now is how to protect the nation while protecting civil liberties. There are many different angles to approach this issue on that could sustain hours of debate: FISC judges, the warrant process, the time allowed for warrantless wiretaps, the minimization procedures, etc. This is a vital issue, as it covers the area between a lack of safety and a lack of freedom. The nation needs to protect both.
Further Study
http://idia.net/Files/ConferenceCommitt ... ngFISA.pdf
http://abcnews.go.com/Blotter/story?id=5987804&page=1
http://en.wikisource.org/wiki/Foreign_I ... ct_of_1978
I'd also like to remind Senators Otrimski and Skeele that bills should be up two weeks prior to the pertinent meeting. That means the FISA bill needs to be posted by next Wednesday (12/23).
Model Congress
Foreign Intelligence Surveillance Act
January 6
One of the primary roles of government is to protect its citizens from foreign invasion or attacks on their safety. As Sun Tzu said, “All warfare is based on deception.” Intelligence gathering, dissemination, and exploitation are of the utmost importance in national security matters. In the pre-Cold War era this focused on troop movements and supply trains; then, nuclear stockpiles were added to the mix; now, the priority is preventing the next terrorist attack. Unfortunately, intelligence, though vital, is by its nature something that must generally be sought through covert means, and the government must do its utmost to protect both the bodies and civil liberties of Americans. Both a police state and an absence of defenses are unacceptable.
The Foreign Intelligence Surveillance Act, first passed by Congress in 1978, was one of the first pieces of legislation designed to regulate advanced espionage, including electronic surveillance. At first the act only covered the communications foreign powers or agents of foreign powers, which included spies and terrorist groups but which made sure to minimize the targeting of United States nationals. FISA primarily covered activities such as wiretapping. At the time of its passage, President Carter hailed it as striking a remarkable balance between civil rights and security.
The procedure for wiretapping outlined in FISA is designed to combine flexibility with oversight. Warrants are needed to surveil a target, and the warrant must come from the Foreign Intelligence Surveillance Court. FISC is a secret court, and at the time of its creation it consisted of seven federal district judges, appointed by the Chief Justice of the Supreme Court, who each served a term of 7 years and could not serve again. The office of the Attorney General collects requests for electronic surveillance from the appropriate federal officers or the President. The requests are then sent for modification or approval. Warrants are given for the acquisition of technical intelligence. They last for five years.
Although ideally surveillance would involve a warrant obtained beforehand, the nature of intelligence is that a lot of it is opportunistic and based in small periods of time. There is always the danger that during the time it takes to acquire a FISA warrant from FISC, crucial last-minute information about an attack could be relayed and made available for interception. Because of this, there are procedures for controlled warrantless wiretapping in place. If the Attorney general can show that surveillance is only directed at foreign powers, the President can authorize that surveillance. In a second circumstance, the federal government can engage in surveillance in an emergency situation only if the Attorney General feels that a warrant could have been obtained anyway. Finally, the federal government can engage in surveillance in the first 15 days after a declaration of war by Congress.
The preservation of the warrant system is important due to the need to protect American civil liberties and thus justify the continued existence of and loyalty to the state, while actually maintaining protection of the United States and its interests. The Fourth Amendment to the Constitution protects against “unreasonable searches and seizures” and demands warrants when searches are carried out. For years this was not highly considered and presidential power was extensive and without regulation. The Church Committee, for example, uncovered several instances of abuse of power and surveillance by the various intelligence agencies and the President. Those involved with electronic surveillance included spying on individuals such as Civil Rights activists, Vietnam War protesters, and others; spying on religious and academic organizations in the United States; and the passing of a document to President Kennedy essentially telling him to ignore certain parts of the Constitution in order to defeat enemies of the nation in matters of intelligence. Revelations such as this and the Watergate Scandal made the citizens of America want more oversight of their elected officials, leading to the creation of FISA. After all, in the Supreme Court’s decision in Katz v. United States, the Fourth Amendment protected “people, not places”, when the person had a “reasonable expectation of privacy”.
Following the events of September 11, 2001, American support for counterterrorism surged. In the heat of the moment, the PATRIOT ACT passed, which strengthened the federal government’s powers in FISA, among other things. One of its more significant changes was to change the purpose of electronic surveillance. At first “the purpose” had been to collect foreign intelligence; now this was “a significant purpose”. Also, intelligence agencies could share information with law enforcement and look for information in emails. Roving wiretaps were permitted, and the amount of FISC judges was raised to eleven. In 2008 the FISA Amendments Act raised the time in which warrantless wiretapping could take place to one year.
A public backlash against electronic surveillance came with the 2005 discovery of the Terrorist Surveillance Program. It was revealed that President Bush had authorized massive amounts of wiretaps by the National Security Agency in the fall of 2001, without bothering with the use of FISC. The questions of the programs constitutionality and effectiveness are up for debate. Another thing that worries opponents of the current system is the idea that FISC only serves as a rubber stamp for federal decisions. Between 1997 and 2002, FISC approved 5335 surveillance requests and denied only one. Of course, the argument could be made that this was because good evidence was presented, and it would be hard to prove otherwise, as the records are kept secret. There have also been occurrences of NSA employees abusing their power to listen to personal conversations, which ought to be addressed.
The overall issue for Congress now is how to protect the nation while protecting civil liberties. There are many different angles to approach this issue on that could sustain hours of debate: FISC judges, the warrant process, the time allowed for warrantless wiretaps, the minimization procedures, etc. This is a vital issue, as it covers the area between a lack of safety and a lack of freedom. The nation needs to protect both.
Further Study
http://idia.net/Files/ConferenceCommitt ... ngFISA.pdf
http://abcnews.go.com/Blotter/story?id=5987804&page=1
http://en.wikisource.org/wiki/Foreign_I ... ct_of_1978
I'd also like to remind Senators Otrimski and Skeele that bills should be up two weeks prior to the pertinent meeting. That means the FISA bill needs to be posted by next Wednesday (12/23).