Foreign Intelligence Surveillance Act (F.I.S.A.) court - Term Paper Example

? Foreign Intelligence Surveillance Act (F.I.S.A court al affiliation) The following thesis is a highlighting view on the constitutional aspects for the FISA (Foreign intelligence surveillance act) developed in 1978. This paper fundamentally seeks how and when this particular piece of law was developed and what specifically led, be it events or cases, to the construction of the FISA. Some details regarding the ‘Keith’ case would also be discussed and how all these gave birth to the constitutional powers embedded in this act alone. FISA laws pertaining to obtaining a US warrant pre September 11th 2001 is further a key component of this thesis while adequate consoling matter is also highlighted to the procedures and the legal boundaries determined post 9/11 security threats. Conclusively the paper would submit the author’s own perspective of how things affecting national security should be categorized by law and are FISA laws of current stature morally and internationally acceptable as the legal procedure to enact US defense. Foreign Intelligence Surveillance Act (F.I.S.A.) court Before the birth of FISA (foreign Intelligence surveillance act) in 1978 the US government and many other congressional figures opted to run counter intelligence and related covert ops of gathering electronic intelligence through the use of an Article II amendment that silenced all forthcoming questions that fundamentally challenged issues related to the national security of the United states of America. These personnel would ensure that with the latter constitution for the executive behind them; it was forthright to run international or domestic non-criminal covert ops that would solely ensure wireless electronic intelligence gathering through the use of technology, without any specific warrant or legal document. They stood behind the ideals of “to preserve, protect, and defend the constitution of America at all cost” while with the legal aid backing such acts they would without prior legal notice resort to convert intelligence gathering even inside the United States. Such directives did not cater to distinguish any consolation between US citizens, residents or people of foreign nationality and hence the entire US population was demeanor to accusation, trial and punishment without his or her knowledge. The particulars of such actions were in effect up until the early 1970s and it was the ‘Keith’ case that predominantly broke the shackles to such unfair means. In 1972 the Keith case was one of the major turnarounds that led to the development of FISA courts in the country. Technically speaking this particular legal case was between the United States’ government and a United States district court. The district court emphasized that an acting attorney general gave specific directive permission to carry out electronic wireless intelligence without a warrant on a US citizen accused of bombing a Central Intelligence Agency building. The Supreme Court firmly rejected the US government’s petition of claiming foreign intelligence on the per se warrant requirement but the court emphasized that according to the legislative structure and constituting to the fourth amendment it is uniquely prohibited to use of warrantless surveillance particularly directed at domestic threats to U.S. national security. The court however did not reach a general consensus on whether it is appropriate to target warrantless surveillance on foreign individuals and agents pertaining to other agencies but opened up a new line of thought for the executive council suggesting that it may be up to the latter body if and how they would significantly indulge in matters related to the mentioned entities and personnel. The Supreme Court however demanded that the congress issue a revised plan for a fool proof constitutional amendment that would ensure as a constitutional element for future electronic wireless surveillance of threats regarding the national security of the United States. Another event that fueled demands of changing the legislature into the FISA constitutional proclivity was the Watergate scandal. This event highlighted the executive body’s electronic eavesdropping on many US citizens and anti-war protestors. The issue was fundamentally focused in a senate hearing detailing many events that proved the US government of using warrantless electronic surveillance on many US citizens and also some congressmen that were anti-war protestors. The executive body went to heights of even surveying Martin Luther King Jr while one of the church committee stated that the legislature had many loop holes and needed further revision to account for specifications that made clear on what exactly is required to exact an electronic surveillance regarding the national security of the United States. This generalization also pin pointed the Keith case as a reference point on such related issues. The congress in 1978 prevailed to reach a constitutional consensus regarding gathering of intelligence using electronic and wireless methods and hence in 1978 the Foreign Intelligence Surveillance act was signed while being headed by acting president Carter. This constitutional element had embedded many subliminal tags to the intelligence legislature but this constitution was primarily pillared on five specific fundamentals. Firstly and most importantly the act stated that all non-criminal intelligence gathering and investigation pertaining to electronic wireless surveillance was only permissible if enacted to gather foreign intelligence or associating foreign counterintelligence. Next it fundamentally allowed electronic intelligence gathering or surveillance of foreign nationals or foreign associated entities and persons such as non-American organizations working in the United States. Furthermore the F.I.S.A. legislative amendment gave full clarity on when should an electronic surveillance be used while mentioning that any event or issue that showcases probable cause of a situation that stimulates to directly threaten US national security is prone to electronic wireless surveillance permission. One of the other most proactive things that the F.I.S.A. that bought to the table was the inclusion of FISA courts in the administrative system. The law abiding institutions were responsible on both the national and district level to provide with specific warrants given in light of the FISA amendments in the law for electronic surveillance within the United States and abroad while even if the petition was initially rejected the exercising investigative authority could potentially file for a reconsideration in the appellate level court provided it is in the constitutional boundaries of the FISA. Finally the FISA accredited that any and all electronic wireless surveillance must be targeted to gather only foreign intelligence or to provide with foreign counterintelligence that are fundamentally issued by the FISA courts that particularly run on FISA provided amendments and legislature or approved by the attorney general who for one has to reimburse the case into the FISA court within twenty four hours of submitting a warrant. There are several fundamental aspects of the FISA warrants and it solely addresses to two particular fractions of people that may pose a potential threat to the national security of the United States. Firstly warrants are foremost issued to personnel that are categorized as a foreign power. Places or entities that succumb to such definitions may potentially include a foreign government, a diplomat; other representative or employee of a foreign government, a fraction of a foreign nation that is not substantially composed of US persons, an entity openly acknowledged by a foreign government to be directed and controlled by it, or a group engaged in international terrorism or activities in preparation therefore. The second defining figure that a FISA warrant can be issued to, are agents of foreign powers. These may fundamentally include any individual who is not a US person and works for a foreign power inside the united states or an individual who again may not be a US person but engaged in espionage intelligence gathering activities running from within any associated foreign power. However the FISA constitution does also recognize US citizen as also potential National security threats and a FISA warrant can be issued if for some reason they may be suspected with substantial defying evidence of engaging into espionage pertaining to compromising the national security of the United States or involved in clandestine intelligence gathering activities for a foreign power which activities constitute a violation of U.S. criminal statutes. Another aspect of taking this into account can specify that FISA issued warrants is applicable to all those individuals of US stature or not, that may be involved in any terrorism embankment that could potentially harm the US or any of its associative allies. Before continuing we must look at what the FISA categorizes a US personnel and as such it is evident that any US citizen, alien resident lawfully admitted into the United States or a US organization is to be termed a potential agent for a foreign power if found of leaking national security level details to foreign agencies while all such entities are subject to FISA investigations and warrants. In the current age and time FISA warrant mostly are issued to threats that are probably related to terrorism and other red flagged activities that are in tandem with the latter scenario but for one the FISA laws identify that “Under the Act, international terrorism is defined as:  1. activities that involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the U.S. or of any state, or that would be a criminal violation if committed within the jurisdiction of the United States or any State; 2. acts that appear to be intended to intimidate or coerce a civilian population, to influence the policy of a government by intimidation or coercion; or to affect the conduct of a government by assassination or kidnapping; and 3. activities that occur totally outside the U.S., or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to coerce or intimidate, or the locale in which their perpetrators operate or seek asylum.” Quoted from Foreign Intelligence Surveillance Act (FISA): An Overview James G. McAdams, III In 1995 the FISA extended one of its amendments to include physical searches following up warrants issued through the electronic surveillance. Again major emphasis was laid on the fact that there should be probable cause showcasing that a potential targeted area aimed to undergo physical surveillance must be of a threatening stature to the US national security while substantial evidence of such cases is imperative to obtain a FISA warrant. Furthermore FISA legislature clearly states that the searched premises must belong to: 1. A foreign power or organization working US 2. The premises must fundamentally contain intelligence relating to foreign powers and associated fractions that may potentially help in constituting an inclination in policies aiding the national security. 3. The premise that is searched is in use or owned by foreign power or one of their associated agents working for that latter institution. All in all constitutional rights are probably the same for both enacting an electronic surveillance and fundamentally focusing on physical searches while both these aim to effectively cease national security threats to the United States. This physical searches amendment also entitles the acting president to follow up on potential national security threats using covert surveillance ops but the president’s powers are functionally limited as he must go through the attorney general for a warrant to ensure the full endorsement of this law and hence both these figures work side by side in tandem and hence keep each other in check and in the boundaries of the laid down legislature and constitution. The surveillance issued by the president himself can potentially be kept for a yearlong covert op on any give foreign power. The congress once again amended the FISA constitutions with an insertion of small surveillance tampering techniques that would be further helpful in determining foreign intelligence. This act was enacted in 1998 and specifically claimed that the reasons behind this constitutional inclusion was the fact that FISA would provide impeccable investigative surveillance that could potentially highlight clandestine terrorism plots and also threats aimed at the US national security. Warrants pertaining to such surveillance could only be granted of an attorney general or a government attorney of the same designated reputation while surveillance from these methods must be targeted to correspond to substantial evidence in an on going investigation and hence targets telephone calls with wire taps and electronic communication such as emails into account as a surveillance procedure. While the FISA may be used to gather potential surveillance on foreign powers evidence found using such techniques cannot be used in filing criminal charges of any sort be it espionage or mere robbery FISA warrants can only provide with impeccable intelligence on events, organization and entities thought to be of threatening the US national security but as such has no power except showcasing arbitrary judgments to red flag threats and dangers. In 1995 the department of justice termed the FISA amendments as “the Wall” stating that warrants issued by this administrative authority would only succumb and cater to the gathering of US foreign intelligence and nothing more. Post the events of September 11th, 2001 there have been two particular instances where the FISA amendments, constitution and FISC (Federal Intelligence Surveillance Courts) have come under the gun and amended into new constitutional elements. As such all these events were proactively done in the light of a Republic run presidential office during the George Bush tenure in the early and mid-2000s. Initially in 2006 the terrorist surveillance act was effectively passed stating that the president had additional powers to succumb an electronic surveillance if he saw fit that the national security of the country was at risk and hence could compel FISA to issue a surveillance warrant but the unfolding events would be at a close oversight by the congress itself and only substantial potential threats are to be dealt with this enacting power of the president. In March 16th 2006 only Senator Arlen Specter introduced the National security surveillance act of 2006 which further gave more powers to the president making the US government attain retroactive amnesty on all the warrantless surveillance issued by the president himself. Lastly on May 24th 2006 Foreign Intelligence Surveillance Improvement and Enhancement Act of 2006 (S. 3001) asserting FISA as the exclusive means to conduct foreign intelligence surveillance. In July 18th 2006 the Electronic Surveillance Modernization Act constituted by Senator Heather Wilson was put into action and it allowed for the president to run “electronic surveillance of international phone calls and e-mail potentially related to classify terrorist groups proximately following or in expectation of an armed or terrorist attack on the United States. Surveillance outside the original official period would necessitate a FISA warrant or a presidential certification to Congress. On September 28, 2006 the House of Representatives passed Wilson's bill and it was raised to the Senate.” One other amendment that fulfilled for methods to initiate counter intelligence was the Protect America Act of 2007. On July 28, 2007, President Bush named on Congress to permit lawmaking for reforming FISA in mandate to simplify limitations on shadowing of terrorist respondents where one party (or both parties) to the communication are located overseas. He requested that Congress authorize the statute before its August 2007 vacation. On August 3, 2007, the Senate approved a Republican-sponsored version of FISA in a vote of 60 votes to a mere 28 votes. The House trailed by passing the bill, 227 votes to183 votes. The Protect America Act of 2007 was then employed into law by George W. Bush on 5th September 2007 Underneath the Protect America Act of 2007, communications that inaugurated or culminated in an overseas land may be monitored, bugged and wiretapped by the US government regardless of the control by the FISA Court. The Act eliminates from the meaning of "electronic surveillance" in FISA whichever scrutiny directed at a individual realistically supposed to be located outside the United States. As such, surveillance of these communications no longer necessitates a government claim to, and order dispensing from, the FISA Court. The Act delivers methods for the administration to "verify" the legitimacy of an acquisition platform, for the government to subject orders to benefactors to provide information or support under a certain suite, and for the government and receiver of a directive to seek from the FISA Court, correspondingly, an order to compel provider compliance or relief from an unlawful directive. Benefactors obtaining expenses and full immunity from civil suits for obedience with any directives issued pursuant to the Act. An instantaneous point addressing some of the key requirements follows. The Act sanctions the Attorney General or Director of National Intelligence ("DNI") to sanction, aimed at up to one year, the acquirement of communications pertaining to "individuals realistically alleged to be outside the United States" if the Attorney General and DNI conclude that each of five criteria has been met: 1. In attendance there are sound measures in place for determining that the acquisition apprehension of a person practically alleged to be situated outside the United States; 2. The procurement does not establish electronic surveillance (implicating it does not comprise exclusively national communications); 3. The procurement comprises gaining the communications data from or with the aid of a communications facility benefactor who has admittance to infrastructures easily. 4. A noteworthy resolution of the procurement is to gain foreign intelligence statistics; and 5. Minimization measures delineated in the FISA drive be castoff. This consolation by the Attorney General and DNI essentially be licensed in script, under oath, and maintained by proper affidavit(s). If instantaneous feat by the government is obligatory and time does not facilitate the groundwork of a certification, the Attorney General or DNI can direct the procurement verbally, with documentation to trail within 72 hours of the oral directives. The certification is then filed with the FISA Court. When the documentation is funneled with the FISA Court, the Attorney General or DNI can instruct a benefactor to assume or support in the undertaking of the procurement. If a benefactor is unsuccessful to obey as per the instruction delivered by the Attorney General or DNI, the Attorney General might pursue an order from the FISA Court convincing acquiescence with the instruction laid down before. Non-compliance to follow an instruction of the FISA Court may be chastised as a disrespect of the FISA court. Likewise, a person receiving a directive may challenge the legality of that directive by filing a petition with the FISA Court. An initial review must be conducted within 48 hours of the filing to determine whether the petition is frivolous, and a final determination concerning any non-frivolous petitions must be made – in writing – within 72 hours of receipt of the petition. Determinations of the FISA Court may be appealed to the Foreign Intelligence Court of Appeals, and a petition for a writ of certiorari of a decision from the FICA can be made to the U.S. Supreme Court. Entire requests essentially are funneled beneath closure of an embedded seal. The Act sanctions benefactors to be remunerated, at the fundamental amount, for giving support as focused by the Attorney General and DNI. The Act delivers unambiguous invulnerability commencing civil suit in any federal or state court for providing any evidence, conveniences, or aid in unity with any particular instruction under the Act. Indoors a hundred and twenty days, the Attorney General necessarily acquiesces to the FISA Court for its endorsing the measures through which the administration will regulate that procurements sanctioned by the Act, imitate to the Act, and don’t comprise chastely local infrastructures. The FISA Court then and there resolves its function of whether the actions meet the terms of the Act that regulate the FISA courts. The FISA Court subsequently resolves to arrive at an instruction either one by approving positively the actions or guiding the administration to approve new measures within thirty days or earlier to conclude any attainments underneath the government dealings. The administration might petition a presiding of the FISA Court to the FICA and eventually the Supreme Court. Scheduled on a biannual basis, the Attorney General would intend to notify the Intelligence and Judiciary Boards of the House and Senate of events of nonfulfillment with a order dispensed by the Attorney General or the DNI, occurrences of nonconformity by FISA Court-approved actions by the Intelligence Communal, besides the amount of documentations and orders issued during the broadcasting period. The modifications to FISA completed by the Act perish a hundred and eighty days after depiction, excluding that any directive in consequence on the date of performing vestiges in result pending till the period of termination of such order and such orders can be reauthorized by the FISA Court.” The Act expires on 17th February, 2008. On a final note I truly believe that FISA is well versed to be the decisive authorizing authority that fundamentally focuses on gathering intelligence for the United States government but alongside such feats I personally do believe that singling authority of running covert ops should not no matter what the circumstantial evidence suggest be placed in the hands of a single person. The president with every passing amendment showcases to be more powerful by the minute and god forbid if for some impeccable wrong and indecisive actions are taken by a single individual then the whole country’s national security might be at risk while all the more international diplomatic pressure may also creep in at the office of the president. Issues regarding running foreign intelligence services is a grave matter of national security and hence should be in the hands of professionals that have solely dedicated their lives in specializing for jobs such as these. Presidential candidates are diplomats all the way and they have limited experience of factors that potentially affect such tasks therefore I believe that all foreign intelligence surveillance should be carried out by the FISA but not with a one man influence but rather the president should be on the advisory committee making use of their diplomatic expertise to influence the best surveillance op necessary for the inclusion of foreign intelligence gathering References Foreign Intelligence Surveillance Act (FISA): An Overview James G. McAdams, III Senior Legal Instructor Legal Division Federal Law Enforcement Training Center http://www.fletc.gov/training/programs/legal-division/downloads-articles-and-faqs/articles/foreign-intelligence-surveillance-act.html 50 U.S.C. ch.36, The complete text of the Foreign Intelligence Surveillance Rosenbach, Eric, and Aki J. Peritz. Confrontation or Collaboration? Congress and the Intelligence Community. Belfer Center for Science and International Affairs. 12 June 2009. Harvard Kennedy School. 21 July 2009 http://belfercenter.ksg.harvard.edu/files/IC-book-finalasof12JUNE.pdf Bazan, Elizabeth (2008-02-14). "P.L. 110-55, the Protect America Act of 2007:Modifications to the Foreign Intelligence Surveillance Act" (PDF). Congressional Research Service. Retrieved 2008-04-29. Sussmann, Michael (2007-08-06). "FISA Amended to Allow Acquisition of Cross-Border Communications Without a Court Order". DigestibleLaw.com. Retrieved 2007-08-11. Read More