Black Authors: The FISA Bill and it’s Constitutionality

By Syreeta L. McNeal, CPA, JD

On July 9, 2008, a majority of the other United States Senators, including Senator Obama, voted 69 votes for and a minority of United States Senators, including Senator Clinton, voted 28 votes against approval for the Foreign Intelligence Surveillance Act (FISA) Amendments Act of 2008. Left wing liberals and proponents of preserving the Fourth Amendment of the United States Constitution are furious by Congress’s approval of FISA. However, history is showing that the tension surrounding FISA and application of the “national security exception” to the warrant requirement of the Fourth Amendment is repeating itself.

Since the administration of President Franklin Delano Roosevelt in the 1930’s, presidents have claimed the right to conduct warrantless electronic surveillance in matters involving the defense of the nation, with each successive administration continuing to broaden this amorphous “national security exception” to the warrant requirement of the Fourth Amendment.[1] During the 1970’s, the Nixon administration used claims of national security to justify warrantless wiretapping of dissident groups that had no foreign nexus; included in this class of dissident groups was the Democratic Party.[2] During the Watergate tragedy, gross abuses of the Executive’s presumed authority to conduct warrantless electronic surveillance in the name of national security came to light.[3] The public concern about Executive wiretaps in 1978 ultimately led to the enactment of the Foreign Intelligence Surveillance Act, 50 U.S.C.A. §§ 1801 et seq., (hereinafter FISA).[4]

Originally, FISA established standards for obtaining a court order authorizing foreign intelligence electronic surveillance.[5] To obtain a surveillance order, a federal officer, having first obtained the Attorney General’s approval, must submit an application to one of the FISA court judges.[6] The application detailed the following: (1) the identity of the target; (2) the information relied on by the government to demonstrate that the target is a “foreign power” or an “agent of a foreign power”; (3) evidence that the place where the surveillance will occur is being used, or is about to be used, by the foreign power or its agent; (4) the type of surveillance to be used; (5) the minimization procedures to be employed; and (6) certification that the information sought is “foreign intelligence information.”[7] Before issuing the order, the FISA judge would make specific findings, including that there is probable cause to believe that the target of the electronic surveillance is a foreign power or an agent of a foreign power, and, in the case of a United States person, that the target of the surveillance is not being considered an agent of a foreign power solely on the basis of activities protected by the First Amendment to the Constitution of the United States.[8]

After the tragic events of September 11, 2001, Congress amended the Foreign Intelligence Surveillance Act (FISA) to better enable federal agencies to cooperate in intelligence gathering for the prevention of terrorism.[9] In response to the terrorist attacks of September 11, 2001, Congress enacted the USA Patriot Act, in order to give federal officials greater power to conduct surveillance within the United States on foreign intelligence agents, and prevent terrorism.[10] To better understand the impact FISA is having, it is important to understand how the Fourth Amendment has evolved.
In 1791, our founding fathers adopted the Bill of Rights. These are the first ten amendments to the United States Constitution. The purpose of these ten amendments was to preserve individual’s rights that the federal government shall not infringe upon. For example, the Fourth Amendment prohibited the federal government from conducting unreasonable searches and seizures. The text of the amendment is as follows:

Fourth Amendment of the United States Constitution:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.[11]

The Fourth Amendment represents the general rule as it applies to the federal government. Like any other general rule, there are exceptions. What the FISA Amendments Act of 2008 is doing is expanding the “national security exception” to the Fourth Amendment warrant requirement.

Making the FISA Amendments Act of 2008 unconstitutional will probably not occur in this current climate after the terrorist attacks in 2001. The courts have held that FISA represents a reasonable balance between the needs of the government in gathering national intelligence information and the rights of individuals under the Fourth Amendment.[12] Since the governmental interest in gathering intelligence information is different from that of a criminal investigation, it has been held that the standard of probable cause needed for a FISA order passes constitutional muster, although it does not meet the standard of probable cause needed for a criminal investigation wiretap.[13] Also, it has been held that FISA establishes sufficiently definite standards to enable the statute to meet the particularity requirement of the Fourth Amendment.[14]

However, with CIA Leaks and abuses of prisoners at Guantanamo Bay under President Bush’s tenure, most people feel that President Bush is the reincarnation of President Nixon and Congress should do its part to reign in the abuses of the Executive branch. Unfortunately, Congress did not do its part on July 9, 2008. Now, people are looking to see if the Courts can intervene. So the question is should the FISA Amendments Act of 2008 be unconstitutional and struck down by the Courts?

The main provisions of the FISA Amendments of 2008 that were passed by Congress on July 9, 2008 are as follows:

  • The bill provides immunity for AT&T, Verizon Communications and other U.S. telecommunications companies against 40 lawsuits alleging that they violated customers’ privacy rights by helping the government’s NSA electronic surveillance program conduct a warrantless spying program after the September 11th attacks.[15]
  • Requires FISA court permission to wiretap Americans who are overseas[16]
    Prohibits targeting a foreigner to secretly eavesdrop on an American’s calls or e-mails without court approval.[17]
  • Allows the FISA court 30 days to review existing but expiring surveillance orders before renewing them.[18]
  • Allows eavesdropping in emergencies without court approval, provided the government files required papers within a week.[19]
  • Prohibits the government from invoking war powers or other authorities to supersede surveillance rules in the future.[20]

The provision that many are outraged over is the fact that government agencies can eavesdrop without court approval as long as they provide papers within a week. This seven (7) day period of warrantless search and seizure on citizens’ privacy is an issue. Did the founding fathers think that the federal government should have a seven (7) day grace period to do what they want without Court approval? Doesn’t this unchecked power allow the Executive Branch to abuse and misuse its powers as was done by President Nixon in Watergate? I don’t know the answer to that question, but it is one that the Courts will probably litigate over if a case is brought before them dealing with this direct issue.

Legal Disclaimer: This site provides information about the law designed to keep readers informed of pertinent legal matters affecting the African-American community. But legal information is not the same as legal advice — the application of law to an individual’s specific circumstances. Although we go to great lengths to make sure our information is accurate and useful, we recommend you consult a lawyer in your specific location if you want professional assurance that our information, and your interpretation of it, is appropriate to your particular situation.

[1] John J. Dvorske, J.D., Validity, Construction, and Application of Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.A. §§ 1801 et seq.) Authorizing Electronic Surveillance of Foreign Powers and Their Agents, 190 A.L.R. Fed. 385 (2003).
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] U.S. Const. amend. IV.
[12] John J. Dvorske, J.D., Validity, Construction, and Application of Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.A. §§ 1801 et seq.) Authorizing Electronic Surveillance of Foreign Powers and Their Agents, 190 A.L.R. Fed. 385 (2003).
[13] Id.
[14] Id.
[15] http://en.wikipedia.org/wiki/FISA_Amendments_Act_of_2008
[16] Id.
[17] Id.
[18] Id.
[19] Id.
[20] Id.

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