Four More Years of Warrantless Surveillance…No Matter Who Wins
by Philip Giraldi
July 26, 2012
The Foreign Intelligence Surveillance Act of 1978 (FISA) established a panel of judges (the Foreign Intelligence Surveillance Court) who were empowered to issue warrants to federal government organizations, including the National Security Agency, to enable them to listen in on the conversations of American citizens or residents who were speaking to foreign nationals overseas or between two foreigners if the communications were intercepted at a hub located in the United States. As originally construed, there had to be a foreign intelligence angle to the investigation and the activity would be limited to the monitoring of agents of foreign countries and their contacts. The intention of FISA was to protect against egregious violations of the Fourth Amendment’s guarantee that Americans should have a “reasonable expectation of privacy” while avoiding the complications resulting from constitutional standards for what constitutes a legal search, i.e., that there be probable cause, that the court should know the name of the target, and that a fixed time frame for the activity be established. FISA lowered the bar of probable cause in general because of the supposed involvement of foreign governments, requiring only suspicion of possible illegal activity rather than demonstrating that a crime had been committed or was being planned, which was the normal basis for issuing a warrant. Fishing expeditions in which numerous communications lines were monitored in an attempt to find something incriminating were forbidden.
But, as in so many other areas, 9/11 changed all that. Even though FISA authorized the government to initiate a surveillance on its own authority for up to 72 hours without any warrant or judicial review in cases where immediate action was justified, the Bush administration complained that the procedure was too slow and unresponsive when a terrorist threat might be developing. As a result, the restraint on what is referred to as bulk collection of communications information was ended by Congress with the passage of the FISA Amendments Act of 2008, which was specifically intended to legalize the NSA’s warrantless wiretap program. The Amendments Act dropped the requirement for an actual warrant and permitted the government to certify that bulk collection activity was in support of a foreign counterintelligence program. It also allowed the attorney general and the director of national intelligence to claim broad authority to justify such action, citing, for example, a target as poorly defined as “al-Qaeda activity in Europe” or “residents of Belgium” as the objective of the search. The court would then accept the government certification as justification for the surveillance activity. The Justice Department, for its part, agreed as part of the Amendments Act to “minimize” the number of American citizens affected by the law and to retain information obtained for a limited time period. Both pledges have been largely ignored. The government also committed itself to not intentionally target American citizens, though it is free to follow up on “incidental interceptions,” or communications linkages that inadvertently involve Americans. That means in reality that the government has de facto authority to conduct unrestricted electronic and communications surveillance of anyone worldwide.