Foreign Intelligence Surveillance FISA of 1978 Term Paper

Pages: 15 (4187 words)  ·  Bibliography Sources: 7  ·  File: .docx  ·  Topic: Terrorism

FISA

Improving Counterterrorism through Modernization of the Foreign Intelligence Surveillance Act (FISA)

The Foreign Intelligence Surveillance Act (FISA) has long been a part of the toolkit of the U.S. executive branch for responding to threats to national security from foreign powers. However, in recent decades, the greatest threats to the security of the nation have not come from single foreign powers but rather from loosely allied groups and organizations that employ terrorist tactics to achieve their agendas. Intelligence gathering is a crucial component in effectively responding to any national security threats, including the threat of terrorism. Therefore, it stands that modernizing FISA to better allow for intelligence gathering of terrorist organizations is necessary in the interests of national security.

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With that in mind, it is nonetheless important to assert that amending FISA to grant the executive branch unchecked authority in international and domestic spying is far from a responsible decision. Yes, changes should be incorporated into FISA in order to account for the changing nature of national threats and the ways in which information is exchanged, transmitted, and stored. However civil liberty issues must also be adequately incorporated into any alterations of FISA in order to make certain that the changes to the Act do not undermine the basic freedoms and Constitutional protections currently afforded to all U.S. citizens. To do any less is to grant the U.S. government excessive power to monitor the actions and communications of U.S. citizens, information that could be later used to oppress and abuse said same citizenry.

Term Paper on Foreign Intelligence Surveillance FISA of 1978 Assignment

The scope of this study will be to evaluate the historical development of FISA in order to highlight the reality that without recent legislative changes -- such as the Patriot Act (2001) and the Terrorist Surveillance Program of 2006 -- the Act was significantly deficient in providing useful intelligence for counterterrorism efforts. The modernization of FISA has been necessary after September 11, 2001 in order to help prevent further acts of terrorism in the United States. Additionally, however, this study will touch upon some of the key criticisms leveled at FISA modernization from a civil liberties perspective. No matter the potential gains in national security that might arise from changes to FISA, it is important to balance those possible gains with the potential for harm to U.S. citizens though the violation of Constitutionally guaranteed civil liberties. Striking this balance is the difficult row that must be hoed when considering how FISA can be modernized to account for national security threats from terrorism.

What is FISA?

The Foreign Intelligence Surveillance Act of 1978 was drafted in response to executive abuses of domestic spying by the Nixon Administration, which was using federal resources to spy on political and activist groups within the United States. Obviously, this is a clear violation of the Fourth Amendment of the U.S. Constitution, which prohibits unreasonable search and seizures of U.S. citizens. FISA was written to codify the limitations Congress then deemed necessary to balance the need for national security against the civil liberties of U.S. citizens. FISA establishes a legal framework for how intelligence can be gathered against or about foreign powers that might represent a threat to national security. The rules applied in FISA differ from those that apply in ordinary law enforcement surveillance, such as those that might be employed by police officers (Tien, 2001). Nonetheless, FISA does place restrictions on how federal surveillance can be enacted against foreign powers, even when such surveillance might involve U.S. citizens.

To some extent the executive branch of the U.S. government has long had the Constitutional authority to engage in surveillance activities against foreign powers in the interest of national security. FISA does not so much authorize the government to employ such methods, but rather places some limitations on how that information can be gathered and what types of groups or individuals constitute a legitimate target of federal surveillance tactics. Specifically, FISA articulates how the government may use electronic surveillance against any individual, including Americans, with the judicial okay that said person is the target or agent of a foreign power (USA PATRIOT, 2005). The intention is to allow intelligence agencies in the U.S. To act relatively quickly to secure important intelligence information, however with some judicial oversight. FISA established a judicial oversight system for intelligence gathering directed at foreign powers, though for obvious reasons that oversight is not open to public scrutiny. FISA's aim has always been to limit and better control governmental abuse of electronic surveillance, especially when directed against American citizens.

FISA's purpose is to regulate how foreign intelligence data is collected, then, without overly crippling the efforts of intelligence agencies to protect national security. Specifically, the type of information that most intelligence agencies are interested in is that which might be used to protect against national security threats. Thus, this information might protect against hostile attacks by a foreign nation, sabotage or terrorism by a foreign nation, or clandestine intelligence by a foreign nation (Tien, 2001). Obviously, then, FISA was formulated with the traditional national security threats in mind, namely those that might be leveled at the United States by another nation. This should not be entirely surprising. After all, in 1978 when the Act was drafted, the United States was still very much in the midst of its Cold War with the Soviet Union. Intelligence threats were primarily viewed in terms of those that would originate with a foreign national power. FISA was appropriately written with this in mind in order to best limit the actions of the U.S. intelligence community to those activities that would best protect the nation from those types of typical national security threats.

Of course, such a definition does not adequately address the national security threats faced by the United States today. Rather than facing immediate threats from foreign powers, i.e. nations, the greatest perceived national security threat for the United States is the danger of international terrorism. Loosely, we could consider FISA to include terrorist organizations under the classification of a foreign power. To be so defined, said terrorist organization must be under at least partial acknowledged control of a foreign national power. Terrorist groups such as the Irish Republican Army or Hezbollah would qualify under this definition (Tien, 2001). Unfortunately, FISA as it was originally drafted does not include any clear accommodation for unaffiliated terrorist organizations such as al-Qaeda or Aum Shinrikyo. Terrorist groups without clear nationalist loyalties, and there are many to choose from, are not neatly accounted for under the precepts of FISA as it stood at the law's inception. This puts the U.S. intelligence community and U.S. citizens in two specific and somewhat related binds.

For the U.S. intelligence community, this means that there is not clear-cut legislative guide for how to proceed with the investigation of intelligence related to terrorist organizations that are not affiliated with foreign national powers. This means that FISA is not designed to provide the intelligence community with the tools, or the limitations, necessary to adequately investigate and respond to potential national security threats from terrorist organizations. For U.S. citizens, this legal ambiguity presents another kind of problem, arguably one that is more important. Attempts to apply FISA to terrorist organizations without clear definitions of what constitutes a terrorist organization or how such investigations can legally proceed opens U.S. citizens to all manner of potential civil liberty violations. In the context of FISA as it is written, what do terms like "foreign-based," "political," or "organization" actually mean? Can they be legally applied to foreign nationals in the United States as students who are engaged in political activism? What about political dissidents who exchange opinions and ideas via email with some people who live outside of the United States? Without being able to clear up such ambiguities, FISA is unable to protect U.S. citizens from civil rights violations by the intelligence community, which can apparently apply the ambiguous language of FISA to any group that they might desire to target for surveillance.

Accordingly, FISA has been in desperate need of modernization since the primary threats to national security shifted from national powers to unaffiliated terrorist organizations in the course of the past twenty years. Critics of changes to FISA suggest that modernization will only result in looser controls on U.S. intelligence agencies and further erode oversight and civil liberties protections for U.S. citizens. However, contrary to this position, it will become evident that without modernization to FISA it will be equally difficult to either protect national security or protect the civil rights of U.S. citizens. In order to pursues both these goals, it is crucial that the modernization of FISA continue so that the law can better pursue these challenges.

FISA and Relevant Court Rulings before September 11, 2001

For said same critics of FISA who would have us eliminate the act altogether, unfortunately court rulings have consistently found that FISA is a Constitutionally justified with regard to the executive branch's ability to conduct surveillance on foreign powers (Tien, 2001). Of course, whether or not… [END OF PREVIEW] . . . READ MORE

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