FISA Improving Counterterrorism Through Modernization

FISA

Improving Counterterrorism through Modernization of the Foreign Intelligence Surveillance Act (FISA)

The Foreign Intelligence Surveillance Act (FISA) has long been a part of the toolkit of the U.S. executive branch for responding to threats to national security from foreign powers. However, in recent decades, the greatest threats to the security of the nation have not come from single foreign powers but rather from loosely allied groups and organizations that employ terrorist tactics to achieve their agendas. Intelligence gathering is a crucial component in effectively responding to any national security threats, including the threat of terrorism. Therefore, it stands that modernizing FISA to better allow for intelligence gathering of terrorist organizations is necessary in the interests of national security.

With that in mind, it is nonetheless important to assert that amending FISA to grant the executive branch unchecked authority in international and domestic spying is far from a responsible decision. Yes, changes should be incorporated into FISA in order to account for the changing nature of national threats and the ways in which information is exchanged, transmitted, and stored. However civil liberty issues must also be adequately incorporated into any alterations of FISA in order to make certain that the changes to the Act do not undermine the basic freedoms and Constitutional protections currently afforded to all U.S. citizens. To do any less is to grant the U.S. government excessive power to monitor the actions and communications of U.S. citizens, information that could be later used to oppress and abuse said same citizenry.

The scope of this study will be to evaluate the historical development of FISA in order to highlight the reality that without recent legislative changes -- such as the Patriot Act (2001) and the Terrorist Surveillance Program of 2006 -- the Act was significantly deficient in providing useful intelligence for counterterrorism efforts. The modernization of FISA has been necessary after September 11, 2001 in order to help prevent further acts of terrorism in the United States. Additionally, however, this study will touch upon some of the key criticisms leveled at FISA modernization from a civil liberties perspective. No matter the potential gains in national security that might arise from changes to FISA, it is important to balance those possible gains with the potential for harm to U.S. citizens though the violation of Constitutionally guaranteed civil liberties. Striking this balance is the difficult row that must be hoed when considering how FISA can be modernized to account for national security threats from terrorism.

What is FISA?

The Foreign Intelligence Surveillance Act of 1978 was drafted in response to executive abuses of domestic spying by the Nixon Administration, which was using federal resources to spy on political and activist groups within the United States. Obviously, this is a clear violation of the Fourth Amendment of the U.S. Constitution, which prohibits unreasonable search and seizures of U.S. citizens. FISA was written to codify the limitations Congress then deemed necessary to balance the need for national security against the civil liberties of U.S. citizens. FISA establishes a legal framework for how intelligence can be gathered against or about foreign powers that might represent a threat to national security. The rules applied in FISA differ from those that apply in ordinary law enforcement surveillance, such as those that might be employed by police officers (Tien, 2001). Nonetheless, FISA does place restrictions on how federal surveillance can be enacted against foreign powers, even when such surveillance might involve U.S. citizens.

To some extent the executive branch of the U.S. government has long had the Constitutional authority to engage in surveillance activities against foreign powers in the interest of national security. FISA does not so much authorize the government to employ such methods, but rather places some limitations on how that information can be gathered and what types of groups or individuals constitute a legitimate target of federal surveillance tactics. Specifically, FISA articulates how the government may use electronic surveillance against any individual, including Americans, with the judicial okay that said person is the target or agent of a foreign power (USA PATRIOT, 2005). The intention is to allow intelligence agencies in the U.S. To act relatively quickly to secure important intelligence information, however with some judicial oversight. FISA established a judicial oversight system for intelligence gathering directed at foreign powers, though for obvious reasons that oversight is not open to public scrutiny. FISA's aim has always been to limit and better control governmental abuse of electronic surveillance, especially when directed against American citizens.

FISA's purpose is to regulate how foreign intelligence data is collected, then, without overly crippling the efforts of intelligence agencies to protect national security. Specifically, the type of information that most intelligence agencies are interested in is that which might be used to protect against national security threats. Thus, this information might protect against hostile attacks by a foreign nation, sabotage or terrorism by a foreign nation, or clandestine intelligence by a foreign nation (Tien, 2001). Obviously, then, FISA was formulated with the traditional national security threats in mind, namely those that might be leveled at the United States by another nation. This should not be entirely surprising. After all, in 1978 when the Act was drafted, the United States was still very much in the midst of its Cold War with the Soviet Union. Intelligence threats were primarily viewed in terms of those that would originate with a foreign national power. FISA was appropriately written with this in mind in order to best limit the actions of the U.S. intelligence community to those activities that would best protect the nation from those types of typical national security threats.

Of course, such a definition does not adequately address the national security threats faced by the United States today. Rather than facing immediate threats from foreign powers, i.e. nations, the greatest perceived national security threat for the United States is the danger of international terrorism. Loosely, we could consider FISA to include terrorist organizations under the classification of a foreign power. To be so defined, said terrorist organization must be under at least partial acknowledged control of a foreign national power. Terrorist groups such as the Irish Republican Army or Hezbollah would qualify under this definition (Tien, 2001). Unfortunately, FISA as it was originally drafted does not include any clear accommodation for unaffiliated terrorist organizations such as al-Qaeda or Aum Shinrikyo. Terrorist groups without clear nationalist loyalties, and there are many to choose from, are not neatly accounted for under the precepts of FISA as it stood at the law's inception. This puts the U.S. intelligence community and U.S. citizens in two specific and somewhat related binds.

For the U.S. intelligence community, this means that there is not clear-cut legislative guide for how to proceed with the investigation of intelligence related to terrorist organizations that are not affiliated with foreign national powers. This means that FISA is not designed to provide the intelligence community with the tools, or the limitations, necessary to adequately investigate and respond to potential national security threats from terrorist organizations. For U.S. citizens, this legal ambiguity presents another kind of problem, arguably one that is more important. Attempts to apply FISA to terrorist organizations without clear definitions of what constitutes a terrorist organization or how such investigations can legally proceed opens U.S. citizens to all manner of potential civil liberty violations. In the context of FISA as it is written, what do terms like "foreign-based," "political," or "organization" actually mean? Can they be legally applied to foreign nationals in the United States as students who are engaged in political activism? What about political dissidents who exchange opinions and ideas via email with some people who live outside of the United States? Without being able to clear up such ambiguities, FISA is unable to protect U.S. citizens from civil rights violations by the intelligence community, which can apparently apply the ambiguous language of FISA to any group that they might desire to target for surveillance.

Accordingly, FISA has been in desperate need of modernization since the primary threats to national security shifted from national powers to unaffiliated terrorist organizations in the course of the past twenty years. Critics of changes to FISA suggest that modernization will only result in looser controls on U.S. intelligence agencies and further erode oversight and civil liberties protections for U.S. citizens. However, contrary to this position, it will become evident that without modernization to FISA it will be equally difficult to either protect national security or protect the civil rights of U.S. citizens. In order to pursues both these goals, it is crucial that the modernization of FISA continue so that the law can better pursue these challenges.

FISA and Relevant Court Rulings before September 11, 2001

For said same critics of FISA who would have us eliminate the act altogether, unfortunately court rulings have consistently found that FISA is a Constitutionally justified with regard to the executive branch's ability to conduct surveillance on foreign powers (Tien, 2001). Of course, whether or not FISA allows for Constitutionally appropriate surveillance of foreign powers is somewhat beside the point. 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. 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 spying operations is thus dramatically reduced. By providing a judicial forum for all surveillance and search requests, FISA creates a reasonable atmosphere for approving such measures while still protecting the sensitive nature of foreign intelligence operations. FISA, as a consequence, directly protects the rights of citizens -- specifically their Fourth Amendment rights -- by forcing intelligence agencies to petition for and receive approval for operations from neutral third party judges (Malooly, 1998). This modernizing amendment to FISA not only expanded the power of intelligence agencies to conduct surveillance and searches in the name of national security, but also enhanced the civil rights protections afforded to U.S. citizens under the law.

PATRIOT ACT

The PATRIOT ACT was the first major revision to FISA since it was drafted. The PATRIOT ACT was signed into law immediately after the September 11, 2001 attacks. The revisions the law made to FISA were extensive and were designed specifically to bring the aging act into the modern era by adapting it to the threat posed by international terrorism. The new tools that the PATRIOT ACT incorporated into FISA -- and other aspects of law enforcement -- were extensive and vastly extended the power of the government to respond to national security threats. If there was any deficiency to the Act it was that it placed a greater emphasis on national security than on the protection of civil liberties (USA PATRIOT, 2005).