The Foreign Intelligence Surveillance Act Court - Research Paper Example

The Foreign Intelligence Surveillance Act (FISA) Court Introduction When a group of Americans who were protesting against the Vietnam War decided to blow up a local CIA recruiting office, information against their plan was collected through electronic surveillance. When the matter was taken before the Supreme Court, the judges ruled that a court order was necessary before authorizing security agents to collect information especially when it concerns American citizens. It is worth noting that this ruling did not address the rights of foreigners living in the country. This was despite the fact that it had authorized the surveillance because it was seen as a matter of national security. This realization led to the Congress coming up with Foreign Intelligence Surveillance Act, an Act, which would give the government an oversight of surveillance against foreigners (Chiarella & Newton, 1997). The Congress established the FISA Court in 1978 as a special court authorizing the Chief Justice to assign seven judges who would be responsible for reviewing any applications concerning investigations on foreign power agents or foreign powers who seemed to pose a threat towards national security. The judges would be drawn from various judicial circuits and a judge was allowed to serve for a seven-year non-renewable term. After the enacting of the Foreign Intelligence Surveillance Act (92 Stat. 1783), the government had realized the need to have mechanisms of obtaining judicial warrants before it started to gather any intelligence information involving foreign power’s agents or foreign powers based in the United States (Chiarella & Newton, 1997). Senator Teddy Kennedy introduced the bill to the house on 18 May 1977 and nine other senators supported him. These were James O. Eastland, Storm Thurmond, Gaylord Nelson, John L. McClellan, Charles Mathias, Daniel Inouye, Walter Huddleston, Jake Garn, and Birch Bayh. These resulted from questions about the legality of intelligence activities, which were being carried out in the country. Frank Church and Sam Ervin led two separate committees that wanted to establish the need of legalizing all activities of gathering foreign intelligence information. It had been reported that President Richard Nixon was using federal security agents to spy on activists and political groups and this violated the US constitutions’ Fourth Amendment. FISA was signed into law by the then president Jimmy Carter (Chiarella & Newton, 1997). The Act was created for the purpose of supervising the way the government used its surveillance facilities to spy on foreigners but at the same time, protect the secrecy of the intelligence agents. The law is not applicable outside the United States. This warrant is similar to the one obtained by the criminal investigations but it targets foreigners as opposed to the other, which targets domestic activities. This Act was enacted after a committee, which was referred to as the “Church Committee,” established that the executive branch was abusing its powers when using electronic surveillance domestically for the purposes of national security (Pohlman, 2008). Some of the people who were targeted for surveillance did not warrant searches, because in most cases, the government did not have evidence to suggest that such a person could commit a crime. Since the United States’ government does not want to be seen as being biased against any foreign power, all searches were expected to be legal and warranted. It would authorize surveillance, without a court order, which does not exceed one year unless some of the communications needed involved a US citizen. The president through the Attorney General conducts this authorization, and surveillance is given a go-ahead to start (Bardes, Shelley & Schmidt, 2010). Original Purpose The Act aims at protecting any information that might have been collected illegally under the pretext that it had been warranted. Moreover, one is not expected to disclose any information, which might have been illegally obtained through surveillance. Violation of these Acts results in fines not exceeding ten thousand US dollars, jail time not exceeding five years, or both. It further protects any information from a private individual from being acquired unlawfully. The law gives affirmative defense to any law enforcement officer who is acting through a court order and contacting official duties. On the contrary, it does not protect those operating under the directive of the president. This means that the security agent involved in electronic surveillance or physical searches might be held accountable if the authorization came from the president (Bardes, Shelley & Schmidt, 2010). The Chief Justice was charged with assigning a Presiding Judge from the eleven serving judges. The fact that the target of all applications are not allowed to appear before the court means that its dealings are very secretive and they are not adversarial. On the other hand, the people charged with supplying the surveillance gadgets appear before the court in order to modify or challenge any order. FISA hearings are kept as a secret but the government might decide to publish its opinions if it so wishes. During the hearings, the government does not have to necessarily provide any evidence of why it needs to conduct the search. All the government needs to prove is that the target is a foreign agent or power (Chiarella & Newton, 1997). In addition to electronic surveillance, physical searches could be authorized by the court with the sole purpose of acquiring foreign intelligence information on any foreigner living in the United States of America. Before the enactment of the Act, the US Supreme Court, in a case by the name of Katz v. United States, 389 U.S. 347 (1967) established that the Fourth Amendment covered even physical searches and electronic surveillance. In addition, the Supreme Court, in 1972, in United States v. United States District Court, Plamondon case suggested that the government required a judicial warrant before embarking on collection of domestic electronic information under the Fourth Amendment. Attorneys draft warrant application at the General Counsel’s Office after a federal Security agency or security officer makes a request. The attorney general must confirm that the target for the surveillance has links with a foreign power. In cases involving resident aliens or US citizens, there must be proof that the target could be involved in commissioning a crime (Bardes, Shelley & Schmidt, 2010). Several cases have been brought up, which questions the legality of FISA but the courts have found out that the FISA court is constitutional. Irish republican army soldiers were convicted for violation in respect to delivery of firearms and explosives in United States v. Duggan case in the year 1984. The court acknowledged that national security was important when considering non-resident aliens and US citizens. All the court rulings have established that the court does not violate the Fifth Amendment, which guarantees Separation of Powers, Equal Protection, or does it violate the Sixth Amendments Right to Counsel. This implies that the court has the jurisdiction over who should be monitored secretly (Chiarella & Newton, 1997). Judges travel to Washington DC on rotating basis to hear such applications. In order to guarantee that the court is able to meet at a short notice, one of the judges of the FISA court must be a member of the court of District of Columbia. In the same year, the FISA court was established, the Congress set up Foreign Intelligence Surveillance Court of Review, which acts as a court of appeal for FISA court. The former is made up of three appeals or district judges who are appointed by the Chief Justice. The FISA has been perfect over the years and the Review met for the first time in 2002. In 2001, The USA Patriot Act extended the period, which the FISA court authorized surveillance and changed the number of judges in the court from seven to eleven. This was after the 9/11 terror attacks and the government wanted a court that could sit and listen to the many anticipated cases posed by the threat of terrorism. Since then the court has listened to very many cases, which are connected to terrorism (Bardes, Shelley & Schmidt, 2010). The Procedures of Obtaining A FISA Warrant before September 11 Obtaining a FISA court order involves a complex legal task with the threat of information finding its way to the media thus posing a great threat to the national security of America. Throughout a case’s development, the advocates involved must know that counterintelligence personnel are the only people authorized to access counterintelligence information. Counterintelligence entities are well defined in the US constitution and any unauthorized person or organ should not have access to any counterintelligence information. The leader of the counterintelligence agencies in the US is the Federal Bureau of Investigations (FBI). This implies that criminal intelligence officers should not be allowed to collect counterintelligence because their work is to deal with domestic criminal activities, which do not have any connection with a foreign power (Liu, 2011). Prior to starting an investigation, advocates of the judge seeking warrants must inform the staff judge advocate (SJA) of the situation’s major command. A technical bench is charged with the responsibility of ensuring that there is coordination between the investigating officers through the necessary General Counsel offices. Very many benefits are realized when the coordination is performed through the SJA’s office. The unit in which the suspected person is employed is then contacted through Group Field Office’s military intelligence (MI). This is applicable when the target is a government employee who wants to share some classified information with a foreign power. The MI office would then in turn provide all the necessary information related to the crime being committed. This information includes requests to employ electronic surveillance through battalion and company levels. The target person should not be made understand whether she or he is being monitored because this would jeopardize the investigations. This implies that the target should be treated as if nothing has changed (Liu, 2011). In instances in which the army has the jurisdiction of conducting counterintelligence, requests to conduct physical searches or electronic surveillance must go through several people’s hands. First, the information flows from the MI Group to Army Intelligence and Security Command (INSCOM). The Deputy Chief of Staff for Intelligence receives the classified information from the United States INSCOM who then forwards the application to the Office of the Army General Counsel. The Department of Defense General Counsel Office legally reviews the application. Under Secretary of the Army, Secretary of the Army, Deputy Secretary of Defense and the Secretary of Defense must certify the application after they receive it from the General Counsel. Certification of the application is enough evidence available and foreign intelligence information would be obtained (Liu, 2011). The general Counsel then takes the application to the Department of Justice (DOJ). The Office of Intelligence Policy and Review (OIPR) rewrite all relevant elements of the electronic surveillance in order to ensure all statutes are certified. The Attorney General does the final review on the application and then gives it to an attorney at OIPR who takes the application to a judge at the FISC court for approval after reviewing. It is worth noting that the application can never find its way to the court if the Attorney General does not approve it (Liu, 2011). The whole application process is different when the FBI acts as a leader of the investigation. The counteriteligence arm of the FBI develops the case’s facts. Counterintelligence supervisory agent who is located at the FBI headquarters collects all the facts needed to support the case and takes them to the FBI General Counsel’s Office for review. The latter would then seek certification and approval from the FBI’s Director. In order to ensure that all necessary statutory needs are met, OIPR is responsible for preparing the final application. After the Attorney General reviews the application, it is taken to a FISC judge for approval. All investigative parties are urged to work with the FBI in order to ensure that all necessary statutory needs are met for the application to be fast (Liu, 2011). The FISA Court after September 9/11 Traditionally, the FISA court had seven members from different circuits but the Congress amended the constitution and increased the number from seven to eleven in 2002. The Chief Justice had the responsibility of appointing the members to non-renewable terms of not more than seven years. After the amendment of the Act, the Chief Justice appointed the four extra judges for four to seven year terms. Three of the judges of the current court must be living within twenty miles in Washington in order to ensure that the court can sit in a short notice. The increased war on terror is the main reason why the congress increased the number of judges because it foresaw increased number of cases coming before the court. The Chief Justice should also appoint a Presiding Judge who runs the activities of the court by setting the schedule, and performing any other administrative functions of a chief Judge. The court holds an annual conference, which is attended by Attorney General, Chief Justice, all directors of NSA, CIA and FBI as well as the other court members. The annual conference is held at the Supreme Court during its anniversary or on a date close to it, which is 18 May 1979 (Bardes, Shelley & Schmidt, 2010). Initially, the FISA court was set to deal with foreign powers or foreign agents. All this changed after the terrorist attacks that occurred in America on September 11, 2001 because they did not involve any foreign government but they involved foreigners. In most cases, no government or foreign power supports terrorists and they work on their own to threaten or injure others. The “Lone Wolf” Terrorist refers to an international terrorist who is not a permanent resident of the United States. That terrorist might be the target of a FISA court order. In addition, the amendment did not modify any other section concerning the determination of the right to investigate an individual or an organization (Bardes, Shelley & Schmidt, 2010). The “Lone Wolf” was started during the investigation of Zacharias Moussaoui who is believed to have been a mastermind of the 9/11 attacks. Investigations have revealed that limitations brought up by FISA meant that it was impossible to investigate Moussaoui’s activities efficiently. FBI investigations had established that he was planning to use commercial airliners for terrorist attacks but he was released by the courts after he was arrested in August 2001. FBI agents applied a FISA court order in which they wanted to study Moussaoui’s laptop contents. The FISA court argued it did not have sufficient evidence to ascertain that Moussaoui was a foreign power’s agent, which was a requirement under FISA at that time (Pohlman, 2008). The court had the powers of authorizing search on an individual’s laptop but only after ascertaining that the individual was using the computers for the purposes of serving a foreign power, or he was a foreign agent. At that time, foreign international terrorist groups and their activities were considered activities of foreign powers. Any person who was involved in international terrorism was, therefore, known as a foreign power’s agent. A few weeks before the attacks, the FBI established that Moussaoui was working for an identifiable international terrorism group. It is worth noting that the acquired information was not enough to merit an application for a FISA court order (Bardes, Shelley & Schmidt, 2010). In order to eliminate those loopholes, several legislative proposals were suggested, which would be used to redefine foreign power agents. These proposals were to ensure that terrorists did not have to be linked to certain international terror networks for them to be foreign power agents. One of those proposals was the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA). 39 Section 6001 also known as the lone wolf provision, which ascertains that international permanent US residents and non citizens involved in international terrorism are foreign power agents. This provision prevents any need of providing any evidence linking someone to a terrorist group or foreign government (Liu, 2011). Critics of the above-mentioned provision believe that there are provisions in the FISA acts and other domestic laws that could have been used to search Moussaoui’s laptop legally. In addition, they argue that FISA is being used to substitute very important domestic rules. On the other hand, proponents believe that terrorists are increasingly forming individual organizations, and thus it is difficult to link a person to a certain terrorist group. This provision would, therefore, be very important in dealing with self-radicalized terrorists and others whom employ modern technology to cause terror (Bardes, Shelley & Schmidt, 2010). The USA Patriot Act’s section 206 amended the FISA to include installing wiretaps at multiple points. This would allow targets of wiretaps to be persons as opposed to places as was the case earlier. Initially, the court allowed only two methods of electronic surveillance. The first one was the identification of the facility or location to be put under surveillance. Secondly, there could only be identifiable third parties receiving orders from the government in conducting the electronic surveillance. Although telecommunication providers are prohibited from assisting in the collection of foreign intelligence information, FISA has the powers to allow them to provide information. In other instances, property owners among other third parties are used in the collection of evidence. Initially, when the facility or location could not be identified, FISA court would not issue the warrant. This gave terror suspects a loophole, which they used to commit crimes because they knew searches and electronic surveillance could not be allowed by the FISA court. The courts had complicated procedures before they approved the warrants (Bardes, Shelley & Schmidt, 2010). Functions and Responsibilities of the Court after 9/11 The world has undergone very many changes over the years, and this has resulted in increased insecurity. Initially, countries were wary of their neighbors but this has changed especially after the emergence of terrorist groups, which are not supported by any foreign country. It has been noted that before 9/11, the FISA court recognized terrorists as agents of a foreign power if they could be linked to a known international terrorist group. Over the years, terrorists have changed their tactics and some act on their own, which makes it impossible to link them to any group. The FISA court is charged with the responsibility of ensuring that intelligence agencies obtain warrants for monitoring such people before they cause harm to Americans (Liu, 2011). The FISC is the only body with the powers of authorizing nationwide collection of counterintelligence information that could lead to prevention of any criminal activities in the United States. The CIA, FBI, NSA among other intelligence agencies might be targeting international terror groups. After the 9/11 terrorists attacks, a lot of invaluable information has been obtained because the FISC court has given intelligence agencies the go ahead to conduct electronic surveillance and physical searches on very many occasions. These authorizations have to be done in time because intelligence agencies must always be ahead of the terrorist groups if they are to prevent their actions. Most of the judges who have ever served in the FISC agree that the most satisfying act in their careers was to give a search warrant to the FBI or any other intelligence agency that has led to the prevention of a crime (Liu, 2011). Since the targets of the surveillance are not represented in the court, the judges have the obligation of ensuring that the rights of the absent members are protected. The basis forming the seeking of the surveillance must be proper before the warrant is issued. The judge has to explore every statutory or constitutional question regarding what is needed. In addition, he should always put in mind the rights of the absent party. The judge carefully studies the Attorney General and the head of the investigating agency’s personal accountabilities in order to ensure that all is well before the application leaves the court (Bardes, Shelley & Schmidt, 2010). Although the increase in the number of judges has enabled two weekly sittings, in some emergency cases, the Attorney General is allowed to place seventy-two hour surveillance without a warrant. Most of the warrants that have been issued by the court have gone to prove that they were matters concerning national security and were warranted. Prior to the amendments, the Attorney General would place twenty-four hour surveillance after informing the court that he has to exercise emergency powers. The increase in the number of hours mean that Sunday, Saturday and late night working has reduced because one does not have to deliver papers to the judge within twenty-four hours. In other instances, the periods for surveillance are extended, which leads to reduced hearings for renewals. This gives the judges enough time to hear new applications and stay ahead of the terrorists (Bardes, Shelley & Schmidt, 2010). The Procedures for Obtaining a FISA Warrant Post 9/11 All applications for a warrant are heard by a single judge of the court at a courtroom located in Washington. Now, one judge has to be in Washington for two days in a week in order to facilitate all the hearings. Each application must be formal and very detailed in order to prove the reason of why the warrant is merited. In some circumstances, the application could be between forty and fifty pages in length. An affidavit from the investigating agent supports the application and the agent has to appear before the judge to answer some questions. The head of the investigative agency must also surrender a signed certificate ascertaining that the search or electronic surveillance is of national security concern. In order to prove that every statutory requirement is met, the application must be signed by Deputy Attorney General or the Attorney General. It cannot be presented to the court Before one of them signs it. This can be attributed to the fact that the Attorney is the government’s legal advisor and she or he has to ensure that the application is according to the law at all times (Pohlman, 2008). The FBI, through Department of Justice OIPR must present an application containing three documents to the FISA court. The first document, which is labeled the “application”, contains the specific details regarding why the government wants the FISA warrant. It must be certified by the Deputy Attorney General or the Attorney General. The government through this document pleads with the court to grant it a warrant to contact a physical search or electronic surveillance. Certification by the director of FBI is the second document. The second document declares that the needed information cannot be accessed through any other means other than a physical search or electronic surveillance. In addition, the FBI director must prove that the needed information is of foreign intelligence (Bardes, Shelley & Schmidt, 2010). The third document is an affidavit signed by an SSA from the headquarters of the FBI. This certifies a FISA court requirement that a federal officer ought to sign the document while under oath. A statement that certifies the applicant believes that the foreign power is of threat to the security of the United States must be provided in this document. If the warrant being sought is for physical search, the applicant must justify that the facility or location to be searched has foreign intelligence information. In addition, the applicant must prove that the facility is in transit, possessed, used, or owned by a foreign agent or power. In order for the judge to issue a FISA warrant, she or he must have a cause to believe that the target of the electronic surveillance or physical search is a foreign power agent or a foreign power. In addition, the applicant must be aware of the location of the facility (Bardes, Shelley & Schmidt, 2010). Comparing and Contrasting FISA Court before and after 9/11 The onset of the cold war forms the basis of United States intelligence community. This led to the National Security Act of 1947, which established the Central Intelligence Agency (CIA) and brought all departments of the military into one unit, the Department of Defense (DOD). In addition, National Security Council (NSC) structure was formed, which ensured efficiency in the sharing of information. Quite a large number of commissions have been formed since 1947 with all aiming to study the organization and role of intelligence agencies. Information sharing is the most important tool in preventing actions that might hurt the people. This is because the acts must be stopped before they are orchestrated (Bardes, Shelley, & Schmidt, 2010). Changes in the type of enemies that America used FISA court to investigate have led to changes in the way the FISA court operates. Before 9/11, although FISA court gave authority to investigate terrorists, one was needed to prove that a terror suspect was connected to an international terrorist group for the court to issue a warrant to conduct electronic surveillance or physical search. All this changed when Moussaoui took advantage of this loophole and avoided the arm of the law because the FBI could not obtain a warrant to search his laptop. The FBI failed in obtaining a warrant because they did not have evidence that linked Moussaoui to any international terror network. This is despite the fact that the FBI had evidence that linked Moussaoui to using commuter airlines to perform acts of terror (Pohlman, 2008). Throughout the entire American history, the government has been conducting balanced surveillance between the constitution and the liberties of an individual. After the 9/11, the government expanded its mandate in terms of surveillance and decided to ignore constitutional protections. FISA had allowed the government very limited chances for conducting secret wiretaps on American citizens. The approval of FISA in 1978 by the Congress required that a judge had to approve the searches after obtaining evidence that an American was aiding a foreign power (Pohlman, 2008). After 9/11, which was during the Bush administration, the government started to conduct electronic surveillance on Americans without the approval of the FISA court. It is worth noting that this was against the provisions of the FISA court and the Fourth Amendment. The government claimed that it had obtaining warrants for the surveillance but this was revealed untrue in 2005. After 9/11, FISA court has issued more warrants than it had in the twenty-two years it had been existence before then. The increased fear that is associated with 9/11 has increased surveillance even on groups that do not have ties with Al Qaeda. Some of the groups, which have been under surveillance, are Catholics and pacifist Quakers. The American people conduct most of their activities electronically and this means that the government under the pretext that it is monitoring terrorists scrutinizes most of what they do in their everyday lives (Pohlman, 2008). The FISA court before 9/11 had put very many restrictions on the procedure of electronically monitoring an individual but all that was changed by the terrorist attacks. People could always go to court and deny any information about them, which had been obtained electronically as long as the investigators did not have a warrant to conduct the searches. FISA did not grant the government any warrant to conduct any military surveillance in Afghanistan but the Congress approved military action without the action of the FISA court. In addition, in 2008, Congress authorized FISA courts to grant warrants on individuals without having to prove that they were engaged in any wrongdoing. These actions and amendments have increased the ease with which the American government can collect information about a certain group or individual. The fact that the Congress has approved these actions means that they are legal and thus the American people have to live with them. Patriot Acts section 203 gives the government a leeway to conduct peek and sneak searches in organizations, which do not have any connections to any terrorist organizations (Pohlman, 2008). Although the 9/11 attacks were anticipated because of the threat that America faces from terrorists, such an enormous human loss was not expected. Intelligence information since the 1993 bombing of the World Trade Centre has revealed that terrorists were planning to use commuter airlines to contact mass killings on American soil. Problems, which FISA court was having with FBI in 2000 and 2001 because of inaccuracies in applications are responsible for the delays that led to the events of 9/11. These problems led to the FBI ordering SSA working at FBI to review all applications with field officers resulted in more time needed to make applications. These delays and the complications that FISA court posed on the investigators made applications almost impossible to be approved (Bardes, Shelley & Schmidt, 2010). Conclusion Since the United States Congress passed the Foreign Intelligence Surveillance Act (FISA) and established the FISA court, very many changes have happened in the world of foreign intelligence information. The FISA court was formed after the Supreme Court ruled that the government needed legal protection when conducting secret electronic surveillance on a foreign power or foreign power’s agent based in the United States. This can be attributed to the fact that the court does not have any jurisdiction over facilities or individuals who are based outside the United States. Although the court covered terrorists, who had links with international terror groups before 9/11, this changed after 9/11 to include individual terrorists in the list of agents of a foreign power. Initially these individuals were not covered because the country thought that they did not pose any threat to the American citizens. Terrorists such as Moussaoui knew that they could not be searched because they were protected by the Fourth Amendment and took advantage to plan the 9/11 attacks. Since the 9/11, the Congress has approved several amendments, which give the FISA court powers to authorize electronic surveillance on an individual even when his or her location is unknown. It is important for the judges to follow due diligence when they are delivering their judgments because the targets of the surveillance are never represented in the court and their opinions on the matter mean nothing to the court. The fact that a judge delivers an individual judgment means that she or should take care of the rights of the target because the constitution protects the rights of privacy of all the people living in the United States. It is important for the courts to ensure that all the warrants they issue are merited because the government has been hiding under the pretext of terrorism to monitor innocent Americans. References Bardes, B. A., Shelley, M. C., & Schmidt, S. W. (2010). American government and politics today: The essentials. Boston, MA: Wadsworth Cengage Learning. Chiarella, L. A. C., & Newton, M. A. (1997). “So Judge, How Do I Get That FISA Warrant?” The Policy and Procedure for Conducting Electronic Surveillance." The Army Lawyer. Retrieved 12 Nov. 2012 from http://www.fas.org/irp/agency/doj/fisa/sojudge.pdf Gannon, J. W. (2012). "From Executive Order to Judicial Approval: Tracing the History of Surveillance of U.S. Persons Abroad in Light of Recent Terrorism Investigations.” Journal of National Security Law & Policy, 6(59): 59-96. Liu, E. C. (2011). "Congressional Research Service." Amendments to the Foreign Intelligence Surveillance Act (FISA) Extended Until June 1, 2015. Retrieved 12 Nov. 2012 from http://www.fas.org/sgp/crs/intel/R40138.pdf Pohlman, H. L. (2008). Terrorism and the constitution: the post-9/11 cases. Lanham: Rowman & Littlefield Publishers. Read More