FISA Improving Counterterrorism Through Modernization Term Paper

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FISA's recent rise to fame has been due to attempts by the Bush Administration to apply the law as justification for warrant-less wiretaps of U.S. citizens in apparent disregard of their Fourth Amendment protections. This issue will be examined in more detail below, however, it is important to first discuss some of the key court cases that help establish the Constitutionality of FISA. Specifically, this report will address three cases that directly feed into the Constitutional requirements of FISA: Olmstead v. U.S. (1928), Katz v. U.S. (1967), and U.S. v. U.S. (1972).

Olmstead v. U.S. (1928)

For the civil libertarian, the case of Olmstead v. U.S. (1928) is a nightmare violation of constitutionally guaranteed Fourth and Fifth Amendment rights. In the case, Roy Olmstead was convicted of bootlegging during the Prohibition years of U.S. history. Without obtaining any kind of judicial approval, federal agents placed wiretaps in the building Olmstead kept an office in, as well as in the streets near his home. Their purpose was obvious: catch Olmstead in a conversation that would clearly identify him as a bootlegger and in violation of the National Prohibition Act (Olmstead, 1928).

The finding of the court was that the evidence federal agents obtained in this manner was entirely admissible and could be used to convict Olmstead of bootlegging. The Court concluded that the Fourth Amendment, which protects against unreasonable searches, was not violated because the Amendment protected against physical searches, not eavesdropping. Similarly, the Court believed that the Firth Amendment, which protects against self-incrimination, was not violated because Olmstead had not been forced or coerced in any way to reveal the information that led to his conviction (Olmstead, 1928). The relevance of this case should be apparent when we later consider the NSA's warrant-less wiretapping program in 2006. Suffice to say that Olmstead v. U.S. illustrates the dangers that can arise when there is no clear legislative limits or guidelines placed on the use of electronic surveillance against U.S. citizens. FISA was designed to offer guidelines in certain kinds of instances -- when foreign powers are involved -- but not in more ambiguous cases such as those involving unaffiliated terrorist organizations.

Katz v. U.S. (1967)

The ruling in Olmstead v. U.S. was ultimately overturned by the decision in Katz v. U.S. (Olmstead, 1967). In Katz v. U.S., a conviction was achieved because federal agents gathered information from the defendant, Katz, by placing electronic listening devices on the outside of a telephone booth that Katz used to call in gambling wagers across state lines. The FBI had placed these devices on the phone booth without a warrant and argued that the information they recorded that led to a conviction was not a violation of civil liberties because the devices were not placed inside the area occupied by the defendant. The original Court and the Court of Appeals both upheld this argument and kept Katz imprisoned (Katz, 1967).

However, a Supreme Court examination of the issue ultimately overturned the conviction. Unlike Olmstead v. U.S., the Supreme Court concluded that the Fourth Amendment could be violated by electronic surveillance, even though information gathered in this way is not physical in nature. The defendant's justifiable expectation of privacy in a telephone booth was violated. The Fourth Amendment, then, can apply not only to the seizure of tangible goods, but also to the recording of oral statements (Katz, 1967). If a warrant had been issued before the tap was placed on the phone booth, there wouldn't have been an issue. However, without said warrant the Court concluded that the Government could not convict Katz on the basis of illegally obtained information.

In terms of FISA, the Katz decision is especially important. It clearly suggests that while warrant-less wiretaps may be justifiable against foreign powers, they are violations of basic civil liberties protected by the U.S. Constitution. Katz v. U.S. found that federal agents could not use electronic surveillance to spy on U.S. citizens without a warrant. But FISA is unclear on this issue, because of ambiguous language about who constitutes a foreign power, an agent of said power, and the degree to which intelligence agencies can employ surveillance tactics to monitor for potential national security threats. Without clear guidelines on the issue, it seems evident that FISA will be ineffective at improving national security or protecting civil liberties.

U.S. v. U.S. (1972)

Similarly, in this case, the Court was asked to decide whether or not the President had the authority to issue orders for wiretaps in domestic cases without previous judicial approval.

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The Court found that in those cases the President does not have that authority (United States, 1972). The case specifically involved domestic terrorism by three U.S. citizens who had been charged with conspiracy to destroy government property. One of the defendants had also been charged with bombing a CIA office in Michigan. The defendants argued that they should be given access to the electronic surveillance that had been used to charge them, and the nature of how that surveillance was obtained. Their position was that if the surveillance had been obtained outside of their Constitutional protections, then it could not be used to convict them of a crime, even one that arguably threatened national security.

The judges on the Court agreed with this position and compelled the government to release details about the surveillance to the defense. Specifically, the Court found that while the President has a duty to protect the Constitution and the nation, implicitly from those who would seek to overthrow it, that does not grant the President the authority to circumvent the Constitution itself. It may be necessary at times to use electronic surveillance information in order to protect national security and defend against potential threats. However, the Court believed that this cannot be done outside the ordinary strictures of the checks and balances system laid out in the Constitution. In other words, without judicial oversight and a proper warrant, the President has no authority to spy on U.S. citizens in the interest of national security. The Court was especially concerned that ruling in favor of the government could easily lead to abuses of this Presidential authority and the targeting of individuals and groups for surveillance that express views contrary to the interests of the Presidential Administration and the government (United States, 1972). In other words, without judicial oversight of the process of domestic spying, the possibility for the violation of civil liberties is too great. The decision in United States v. United States quite literally led directly into the drafting of FISA by attaching judicial oversight, albeit free of public scrutiny, to the process of obtaining electronic surveillance warrants for spying.

FISA, Modernization, and the Specter of Terrorism

Since FISA was originally passed in 1978, it has been amended several times to help the law adapt to changing times and new pressures for electronic surveillance. At least two of these changes were directly the result of the September 11, 2001 terrorist attacks. All amendments were added to FISA in order to help intelligence agencies better utilize the law in order to collect meaningful surveillance information about potential national security threats. The three major changes that have been made to FISA are the 1994 Amendment, the U.S.A. PATRIOT Act (2001), and the Terrorist Surveillance Program of 2006.

1994 Amendment

When FISA was originally passed in 1978, its initial intent was to establish a set of procedures and policies that guide law enforcement in setting up foreign intelligence surveillance. Specifically, the act created a secret court within the judiciary that oversees all requests for wiretaps in foreign surveillance cases (Malolly, 1998). The purpose of this court was to provide some judicial oversight to the executive branch and make certain that the domestic spying abuses of the Nixon Administration were not repeated.

Despite the oversight established by the secret court, there were some concerns within the Government in the early 1990s that FISA did not include physical searches in its precepts, but only electronic surveillance. Intelligence agencies agreed that sometimes surveillance of foreign agents and powers would involve physical searches and even seizures of items. Because FISA did not specifically allow for this, there was some concern that challenges could be made to routine foreign intelligence operations on Fourth Amendment grounds. To avoid this situation and potentially endanger sensitive intelligence operations, a 1994 amendment was made to FISA that extended the law to allow for physical searches in cases of foreign intelligence operations. The amendment stated that the President, through the Attorney General, could petition the FISA court for authorization to conduct physical searches for this purpose (Malooly, 1998).

The Constitutionality of this amendment has been debated to some degree, but is ultimately legal. Because all requests for physical searches under FISA must be aired through the FISA court and then approved by that court, significant judicial oversight is incorporated into the process. The potential for abuse of domestic….....

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