Foreign Intelligence Surveillance Act of 1978

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The Foreign Intelligence Surveillance Act (FISA) of 1978 prescribes procedures for the physical and electronic surveillance and collection of "foreign intelligence information" between or among "foreign powers".

FISA is codified in 50 U.S.C. §§1801-1811, 1821-29, 1841-46, and 1861-62.[1] The subchapters of FISA provide for:

  • Electronic Surveillance
  • Physical Searches
  • Pen Registers and Trap & Trace Devices for Foreign Intelligence Purposes
  • Access to certain Business Records for Foreign Intelligence Purposes

The Act was amended by the USA Act (part of the USA PATRIOT Act) of 2001, primarily to include terrorism on behalf of groups that are not specifically backed by a foreign government.

Contents

[edit] History

The Foreign Intelligence Surveillance Act resulted from extensive investigations into domestic intelligence activities by Senate Committees, led separately by Sam Ervin and Frank Church in the 1970s (see the Church Committee report).

The Act came into public prominence in December 2005 following publication by the New York Times of an article[2] that described a program of warrantless domestic wiretapping ordered by the Bush administration and carried out by the National Security Agency since 2002 (a subsequent Bloomberg article[3] suggested that this may have already begun by June 2000). Many critics, including some Republicans, have asserted that the Administration's warrantless spying program is a criminal violation of FISA. The Bush administration, while conceding that it does not follow FISA, asserts that the program is nonetheless legal on the grounds that FISA is an unconstitutional infringement of executive power and/or FISA was implicitly amended or abrogated by the Authorization for Use of Military Force resolution passed by Congress.

The Attorney General Gonzales in a speech at Georgetown University on January 24, 2006 said:[4]

“ Just a few days after the events of September 11th, Congress enacted a joint resolution to support and authorize a military response to the attacks on American soil. In this resolution, the Authorization for Use of Military Force, Congress did two important things. First, it expressly recognized the President’s “authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States.” Second, it supplemented that authority by authorizing the President to, quote, “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks” in order to prevent further attacks on the United States. ”

[edit] Scope and limits

For most purposes, including electronic surveillance and physical searches, "foreign powers" means a foreign government, any faction(s) or foreign governments not substantially composed of US persons, and any entity directed or controlled by a foreign government. §§1801(a)(1)-(3) The definition also includes groups engaged in international terrorism and foreign political organizations. §§1801(a)(4) and (5). The sections of FISA authorizing electronic surveillance and physical searches without a court order specifically exclude their application to groups engaged in international terrorism. See §1802(a)(1) (referring specifically to §1801(a)(1), (2) and (3)).

The statute limits its application to US persons. A US person includes citizens, lawfully admitted permanent resident aliens, and corporations incorporated in the US.

The code defines "foreign intelligence information" to mean information necessary to protect the United States against actual or potential grave attack, sabotage or international terrorism.[5]

[edit] Provisions

[edit] Electronic surveillance

Generally, the statute permits electronic surveillance in two scenarios.

[edit] Without a court order

The President may authorize, through the Attorney General, electronic surveillance without a court order for the period of one year provided it is only for foreign intelligence information [5]; targeting foreign powers as defined by 50 U.S.C. §1801(a)(1),(2),(3) [6] or their agents; and there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party.[7]

The Attorney General is required to make a certification of these conditions under seal to the Foreign Intelligence Surveillance Court[8], and report on their compliance to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence. [9]

Since 50 U.S.C § 1802 (a)(1)(A) of this act specifically limits warrantless surveillance to foreign powers as defined by 50 U.S.C. §1801(a) (1),(2), (3) and omits the definitions contained in 50 U.S.C. §1801(a) (4),(5),(6) the act does not authorize the use of warrantless surveillance on: groups engaged in international terrorism or activities in preparation therefore; foreign-based political organizations, not substantially composed of United States persons; or entities that are directed and controlled by a foreign government or governments. [10] Under the FISA act, anyone who engages in electronic surveillance except as authorized by statute is subject to both criminal penalties [11] and civil liabilities. [12]

[edit] With a court order

Alternatively, the government may seek a court order permitting the surveillance using the FISA court.[13] Approval of a FISA application requires the court find probable cause that the target of the surveillance be a "foreign power" or an "agent of a foreign power", and that the places at which surveillance is requested is used or will be used by that foreign power or its agent. In addition, the court must find that the proposed surveillance meet certain "minimization requirements" for information pertaining to US persons[14].

[edit] Physical Searches

In addition to electronic surveillance, FISA permits the "physical search" of the "premises, information, material, or property used exclusively by" a foreign power.

The requirements and procedures are nearly identical to those for electronic surveillance.

[edit] FISA court

Main article: United States Foreign Intelligence Surveillance Court

The Act created the Foreign Intelligence Surveillance Court (FISC) and enabled it to oversee requests for surveillance warrants by federal police agencies (primarily the F.B.I.) against suspected foreign intelligence agents inside the U.S. The court is located within the Department of Justice headquarters building. The court is staffed by eleven judges appointed by the Chief Justice of the United States to serve seven year terms.

Proceedings before the FISA court are ex parte and non-adversarial. The court hears evidence presented solely by the Department of Justice. There is no provision for a release of information regarding such hearings, or for the record of information actually collected.

Main article: United States Foreign Intelligence Surveillance Court of Review

Denials of FISA applications by the FISC may be appealed to the Foreign Intelligence Surveillance Court of Review. The Court of Review is a three judge panel. Since its creation, the court has only come into session once in 2002.

[edit] Remedies for violations

Both the subchapters covering physical searches and electronic surveillance provide for criminal and civil liability for violations of FISA.

Criminal sanctions follows violations of electronic surveillance by intentionally engaging in electronic surveillance under the color of law or through disclosing information known to have been obtained through unauthorized surveillance. The penalties for either act are fines up to $10,000, up to five years in jail, or both.[11]

In addition, the statute creates a cause of action for private individuals whose communications were unlawfully monitored. The statute permits actual damages of not less than $1,000 or $100 per day. In addition, that statute authorizes punitive damages and an award of attorney's fees.[12]

Similar liability is found under the subchapter pertaining to physical searches.

In both cases, the statute creates an affirmative defense for a law enforcement agent acting within their official duties and pursuant to a valid court order. Presumably, such a defense is not available to those operating exclusively under presidential authorization.

[edit] Lone wolf amendment

In 2004, FISA was amended to include a "lone wolf" provision. 50 U.S.C. §1801(b)(1)(C). A "lone wolf" is a non-US person who engages in or prepares for international terrorism. The provision amended the definition of "foreign power" to permit the FISA courts to issue surveillance and physical search orders without having to find a connection between the "lone wolf" and a foreign government or terrorist group.[15]

[edit] Constitutionality

[edit] Before FISA

In 1967, the Supreme Court of the United States held that the requirements of the Fourth Amendment applied equally to electronic surveillance and to physical searches. Katz v. United States, 389 U.S. 347 (1967). The Court did not address whether such requirements apply to issues of national security. Shortly after, in 1972, the Court took up the issue again in United States v. United States District Court, Plamondon, where the court held that court approval was required in order for the domestic surveillance to satisfy the Fourth Amendment. 407 U.S. 297 (1972). Justice Powell wrote that the decision did not address this issues that "may be involved with respect to activities of foreign powers or their."

In the time immediately preceding FISA, a number of courts squarely addressed the issue of "warrantless wiretaps". In both United States v. Brown, 484 F.2d 418 (5th Cir. 1973), and United States v. Butenko, 494 F.2d 593 (3rd Cir. 1974), the courts upheld warrantless wiretaps. In Brown, a US citizen's conversation was captured by a wiretap authorized by the Attorney General for foreign intelligence purposes. In Butenko, the court held a wiretap valid if the primary purpose was for gathering foreign intelligence information.

A plurality opinion in Zweibon v. Mitchell, 516 F.2d 594 (D.C. Cir. 1975), held that a warrant was required for the domestic surveillance of a domestic organization. In this case, the court found that the domestic organization was not a "foreign power or their agent", and "absent exigent circumstances, all warrantless electronic surveillance is unreasonable and therefore unconstitutional."

[edit] Post FISA

There have been very few cases involving the constitutionality of FISA. In two lower court decisions, the courts found FISA constitutional. In the United States v. Duggan, the defendants were members of the Irish Republican Army. 743 F.2d 59 (2nd Cir., 1984). They were convicted for various violations regarding the shipment of explosives and firearms. The court held that their compelling considerations of national security in the distinction between the treatment of U.S. citizens and non-resident aliens.

In the United States v. Nicholson, the defendant moved to suppress all evidence gathered under a FISA order. 955 F.Supp. 588 (Va. 1997). The court affirmed the denial of the motion. There the court flatly rejected claims that FISA violated Due process clause of the Fifth Amendment, Equal protection, Separation of powers, nor the Right to counsel provided by the Sixth Amendment.

However, in a third case, the special review court for FISA, the equivalent of a Circuit Court Of Appeals, opined differently should FISA limit the President's inherent authority for warrantless searches in the foreign intelligence area. In In re Sealed Case, 310 F.3d 717, 742 (Foreign Intel. Surv. Ct. of Rev. 2002) the special court stated “[A]ll the other courts to have decided the issue [have] held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information . . . . We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.”

[edit] Foreign intelligence warrant exception

FISA regulates the surveillance and collection for foreign intelligence domestically. Notably, FISA does not control extra-territorial intelligence operations. Courts, including the District Court for the Southern District of New York, have adopted a "foreign intelligence exception" to ordinary requirements for warrants.[16]

[edit] Criticisms

K. A. Taipale of the World Policy Institute, James Jay Carafano of the Heritage Foundation[17], and Philip Bobbitt of the University of Texas Law School,[18] among others,[19] have argued that FISA may need to be amended (to include, among other things, procedures for programmatic approvals) as it may no longer be adequate to address certain foreign intelligence needs and technology developments, including: the transition from circuit-based communications to packet-based communications; the globalization of communications infrastructure; and the development of automated monitoring techniques, including data mining and traffic analysis.[20]

The need for programmatic approval of technology-enabled surveillance programs is particularly crucial in foreign intelligence. See, for example, John R. Schmidt, the associate attorney general (1994-1997) in the Justice Department under President Bill Clinton, [21] recalling early arguments made by then-Attorney General Edward Levi to the Church Committee that foreign intelligence surveillance legislation should include provisions for programmatically authorizing surveillance programs because of the particular needs of foreign intelligence where "virtually continuous surveillance, which by its nature does not have specifically predetermined targets" may be required. In these situations, "the efficiency of a warrant requirement would be minimal."

And, in a recent essay, Judge Richard A. Posner opined that FISA “retains value as a framework for monitoring the communications of known terrorists, but it is hopeless as a framework for detecting terrorists. [FISA] requires that surveillance be conducted pursuant to warrants based on probable cause to believe that the target of surveillance is a terrorist, when the desperate need is to find out who is a terrorist.”[22]

[edit] Proposed amendments

On March 16, 2006, Senators Mike DeWine (R-OH), Lindsey Graham (R-SC), Chuck Hagel (R-NE), and Olympia Snowe (R-ME) introduced the Terrorist Surveillance Act of 2006 (S.2455),[23][24] under which the President would be given certain additional limited statutory authority to conduct electronic surveillance of suspected terrorists in the United States subject to enhanced Congressional oversight. Also on March 16, 2006, Senator Arlen Specter (R-PA) introduced The National Security Surveillance Act of 2006 (S.2453),[25][26] which would amend FISA to grant retroactive amnesty[27] for warrantless surveillance conducted under presidential authority and provide FISA court (FISC) jurisdiction to review, authorize, and oversight "electronic surveillance programs." On May 24, 2006, Senator Specter and Senator Dianne Feinstein (D-CA) introduced the Foreign Intelligence Surveillance Improvement and Enhancement Act of 2006 (S.3001) asserting FISA as the exclusive means to conduct foreign intelligence surveillance.

All three of these competing bills have been the subject of Judiciary Committee hearings throughout the summer.[28] On September 13, 2006, the Senate Judiciary Committee voted to approve all three mutually exclusive bills, thus, leaving it to the full Senate to resolve. [29]

On July 18, 2006, U.S. Representative Heather Wilson (R-NM) introduced the Electronic Surveillance Modernization Act (H.R. 5825). Wilson's bill would give the President the authority to authorize electronic surveillance of international phone calls and e-mail linked specifically to identified terrorist groups immediately following or in anticipation of an armed or terrorist attack on the United States. Surveillance beyond the initial authorized period would require a FISA warrant or a presidential certification to Congress. On September 28, 2006 the House of Representatives passed Wilson's bill and it was referred to the Senate. [30]

[edit] See also

[edit] References

  1. ^ 50 U.S.C Chapter 36 Foreign Intelligence Surveillance The complete text of the Foreign Intelligence Surveillance Act
  2. ^ "Bush Lets US Spy on Callers Without Courts" (Dec. 16, 2005; [1]
  3. ^ http://www.bloomberg.com/apps/news?pid=20601087&sid=abIV0cO64zJE&refer=
  4. ^ http://www.fas.org/irp/news/2006/01/ag012406.html
  5. ^ a b 50 U.S.C. §1801(e) Definition of Foreign intelligence information
  6. ^ 50 U.S.C. §1801(a) Definition of Foreign power
  7. ^ 50 U.S.C. sect;1802(a)(1) Conditions under which the President, through the Attorney General, may authorize electronic surveillance without a court order
  8. ^ 50 U.S.C. sect;1802(a)(3) Requirement of the Attorney General's to file reports under seal on warrantless surveillance to the FISC
  9. ^ 50 U.S.C. sect;1802(a)(2) Requirement of the Attorney General's to report on compliance with warrantless surveillance requirements to Congress
  10. ^ 50 U.S.C. sect;1802 (a)(1)(A) The limitation of warrantless surveillance to foreign powers as defined in 50 U.S.C § 1801 (a) (1),(2), and (3)
  11. ^ a b 50 U.S.C. §1809 - Criminal sanctions
  12. ^ a b 50 U.S.C. §1810 - Civil liability
  13. ^ 50 U.S.C §1805 Electronic surveillance with a court order
  14. ^ 50 U.S.C. §1801(5) Minimization procedures definition
  15. ^ “Lone Wolf” Amendment to the Foreign Intelligence Surveillance Act
  16. ^ United States v. Bin Laden, 126 F.Supp.2d 264 (S.D.N.Y. 2000)
  17. ^ Commentary, Wash. Times, Jan. 24, 2006
  18. ^ Why We Listen, N.Y. Times, Jan. 30, 2006
  19. ^ The Eavesdropping Debate We Should be Having
  20. ^ Whispering Wires and Warrantless Wiretaps
  21. ^ "A historical solution to the Bush spying issue," Chicago Tribune (Feb. 12, 2006)
  22. ^ A New Surveillance Act, Wall Street Journal February 15, 2006
  23. ^ Press Release of Senator DeWine
  24. ^ Dewine Bill as introduced
  25. ^ Specter Floor Statement
  26. ^ Specter Bill as introduced
  27. ^ Specter Offers Compromise on NSA Surveillance, Washington Post, June 9, 2006
  28. ^ FIS linking to 2006 FISA Congressional Hearings material
  29. ^ Conflicting Bills on Warrantless Surveillance Advance in Senate, Secrecy News, September 14, 2006
  30. ^ House Passes Wilson FISA Bill, Press Release, September 29, 2006.

[edit] External links

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