FISA modernization and the balance between counterterrorism and civil liberties

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.

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).

The PATRIOT ACT expanded the range and authority of FISA in a number of specific ways. Five major changes were made to FISA through the PATRIOT ACT (USA PATRIOT, 2005):

Section 201 of the PATRIOT ACT: Terrorism becomes a predicate offense, enabling the government to obtain wiretaps on suspicion of offense alone. Because FISA already allowed for wiretaps on foreign citizens, this amendment opened the door for wiretaps on U.S. citizens suspected of terrorism, domestic or otherwise.

Section 205: Five more judges appointed to the FISA court, raising the total to eleven judges. The intention here is to provide greater judicial oversight of the enhanced FISA powers. This is a welcome addition to FISA, which has already been criticized for weak civil liberties protections.

Section 206: Expands FISA to include roving wiretap authority. This allows for the interception of any communication made by an intelligence target without the need to specify the communication medium to be monitored.

Section 214: The obligation to demonstrate the intelligence target is the agent of a foreign power under FISA has been removed. This change to FISA means that intelligence agencies have greater authority to perform surveillance on a wider range of individuals, including U.S. citizens.

Section 218: FISA can be applied in intelligence situations when surveillance is only a significant, not the primary, portion of the investigation. This change greatly expands the power of intelligence agencies to conduct surveillance for investigations, no matter the specifics of the situation.

NSA Surveillance Program

The Terrorist Surveillance Program of 2006 is less a change to FISA than an attempt to modify FISA through direct action and Presidential fiat. The Bush Administration claimed, once the program came to light, that the NSA had the imperative and Constitutional right to conduct warrant-less wiretaps and physical searches -- through the NSA -- of American citizens on American soil (Fein, 2007). This determination is in obvious conflict with the original precepts of FISA as it was written in 1978, the bulk of the judicial rulings on the subject, and even the specific changes made to FISA by the U.S.A. PATRIOT Act. Though the PATRIOT Act greatly enhanced the scope (and ambiguity) of FISA with regard to its application against American citizens, the lengths to which the NSA went in the Terrorist Surveillance Program of 2006 defied even the loose boundaries of the modernized FISA.

The Terrorist Surveillance Program is a prime example of how FISA must be reworked to prevent such civil rights abuses by incorporating or accounting for these possibilities before the rights of American citizens are violated. In the extreme climate of fear of terrorism and dogmatic call for greater national security, it is little wonder that the Bush Administration capitalized on this situation to expand the use of electronic surveillance to target U.S. citizens. However, without making specific changes to FISA, to the law, these actions cannot be justified. If it is necessary to modernize FISA in order to combat terrorism -- and this study argues that this is the case -- then such modernization must occur within the structure of the law. The NSA Terrorist Surveillance Program was an example of the executive branch of the U.S. government attempting to make such changes without legislative or judicial oversight or input, placing undue power in that branch of the government and undermining our Constitutional system of checks and balances.

Conclusion

There can be little doubt that FISA must be changed, modernized, in order to more effectively combat the threat of international terrorism and ensure the security of the nation. Dramatic changes in communication technologies in the last thirty years have made many of the preconceptions FISA was based on utterly obsolete. Without adapting to the changes in technology, as well as changes in the sources of threats to national security, FISA might be reduced to little more than another anachronistic law. It is important, then, that FISA be critically examined and updated so that it can better respond to the threat of international terrorism and the means of communication that terrorists will inevitable utilize to further their goals.

However, at the same time, it is crucially important that a balance be struck between the need for greater security and the protection of basic civil liberties such as the Fourth and Fifth Amendments of the U.S. Constitution. These Amendments are in place to protect U.S. citizens from abuses by their government, and must be protected at all costs lest the power of the government to investigate foreign agents be turned against domestic groups, organizations, and individuals. Ultimately, achieving this balance should be the primary goal of any effort to modernize FISA and provide intelligence agencies with the added investigative tools they need to combat terrorism. Fear of terrorism should not be employed as an excuse to undermine the Constitutional right afforded to all American citizens.