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Investigations and Searches Under FISA

The rules between ordinary criminal law and national security are quite different. In this section your students will see more of those actual differences in real life, for example, with surveillance and searches. While this still must meet 4th amendment protections, those levels are quite a bit different from ordinary criminal law. Included in this section is the case of United States v. Bin Laden (2000) where your students can read about the need for a search warrant in cases involving national security and homeland defense.The students will no doubt recall the furor over secret wiretapping staunchly defended by President Bush and Attorney General Gonzales. It was then that the secret courts under FISA became well known to the public.

In 1978 Congress passed the Foreign Intelligence Surveillance Act (FISA) which regulates the collection of counter intelligence by foreigners within the United States, whether or not there is probable cause of a violation of any laws. The Act originally dealt with electronic surveillance. As a result of increased mobile phone use, however, a post 9/11 amendment to the Act allowed for "roving wiretaps." FISA also provided for two secret courts which hold ex parte hearings on those surveillance requests. In 2002, one of those courts made quite a bit of news when it went against Attorney General Ashcroft's request for broadly expanded powers and less oversight. Interestingly, this case revealed that this secret court had only once denied a request for a warrant in more than 13,000 requests! More than 20,000 warrants have been approved since the Act’s inception. (See the FISA Annual Reports.)

If you have been following the news, FISA has been in it a lot. In December 2005, first came the disclosure that the president was sidestepping FISA and using unauthorized wiretaps, and then the announcement of the resignation of a FISA judge. This was followed by new legislation in 2006 that was a half-hearted attempt to rein in this practice. In his article "Presidental Power on Steroids," Patrick Radden Keefe provides an analysis of this bill:

• "The problem is the gulf between the real oversight established by the 1978 Foreign Intelligence Surveillance Act, passed in the wake of the rampant domestic snooping of the Watergate era, and the fake oversight envisioned in this bill. FISA mandated judicial review each time the NSA applies for a warrant to eavesdrop. Specter proposes a blanket review of whole surveillance programs. Leave aside for the moment the Fourth Amendment's requirement that search warrants must be issued on an individual basis and the fact that some of the NSA's programs reportedly monitor thousands of people. There's an even bigger problem: Review by the FISA court is optional. Whereas under the 1978 law, the president could authorize surveillance without seeking a warrant for up to 15 days after a declaration of war, Specter's bill eliminates the declaration-of-war provision and expands that 15-day grace period—to a year. "
• "This provision, along with the accompanying suggestion that the president can find authorization to wiretap either through FISA or "under the Constitution," effectively codify the Bush administration's controversial argument that the president's authority as commander in chief under Article II of the Constitution gives him virtually unconstrained license to do whatever he sees fit, national-security-wise. According to this view, it's not the NSA surveillance program that's unconstitutional, but FISA itself."
• "So, to sum up this civic morass: In 1978 Congress passed a sweeping law limiting the power of the president to spy on the American people. A quarter-century later, Bush administration lawyers concluded that this law was unconstitutional. Rather than challenge its constitutionality in the courts, they elected to violate it in secret. And now, in the name of oversight, the chair of the Senate Judiciary committee is proposing to bypass any rigorous judicial assessment of the president's constitutional prerogatives and instead to endorse the administration's position—a position, incidentally, that the Supreme Court rejected just weeks ago in another context. The bill amounts to the repeal-by-amendment of FISA. "
• "Specter's biggest gift to the administration is that, if passed, his bill would manage to do what Justice Department lawyers have been scrambling to do for months: keep this controversy out of the courts, or at any rate, out of courts with any semblance of due process or transparency. Since December, civil libertarians have launched a wave of challenges to the surveillance program, figuring that while Congress might be too timid to bring the administration into line, the judiciary might not be. Throughout the spring and summer, Justice Department lawyers sought to torpedo these cases by employing an obscure and pernicious legal tactic, the state secrets doctrine. Traditionally used to prevent the introduction into court of evidence that might compromise national security, the state secrets doctrine is now being employed by the administration to dismiss cases at their inception."

Student Activities and Assessment Tools

• A great example for research and discussion is the area of surveillance and searches. While these must still meet 4th amendment protections, those levels are quite a bit different from those involved in ordinary criminal law. Have the students read the case of United States v. Bin Laden (2000) involving the first World Trade Center bombing. Have the students discuss the merits of even trying this case without Bin Laden present or accountable. Why was a search warrant needed? Was this just a P.R. campaign? You may use the included evaluation form.
• Students should also reflect on how FISA and the USA PATRIOT Act affect our traditional right to privacy. A significant part of the Act gives greater powers to the government over private citizens’ rights to privacy. Have students discuss which has more potential to affect their lives or the lives of someone they know: the provisions of FISA or the USA PATRIOT Act.