The Documents behind the Birth of FISA

[Make7]

[div class="excerpt" style="display:inline-block; margin-left:1em; border:1px solid #bfbfbf; border-radius:0.4615em; box-shadow:-1px -1px 3px #999999 inset;"][font style="font-size:1.231em;"]The Documents behind the Birth of FISA, the Invisible Hand Granting NSA’s Surveillance the Legal ‘OK’[/font]

[font style="font-size:0.7692em;"]July 16, 2013
by Lauren Harper[/font]

A recent New York Times article highlighted the problematic and excessively secretive nature of the Foreign Intelligence Surveillance Act (FISA) Court, the entity that gives the National Security Agency (NSA) the legal go-ahead to conduct its massive surveillance operations. The Times article pointed out that its unclear if the phone companies that are forced to hand over their records to the NSA are even allowed to appear before the Court to dispute the orders, though some companies are more eager than others to help the NSA bypass personal privacy.

The renewed debate regarding the nature of the Court, thanks to Edward Snowden’s leaks of its otherwise secret rulings, provides an opportunity to [div class="footer" style="padding: 0px; margin: 0px; display:inline; font-size:1em; position:static;"][div class="journal-info" style="font-size:1em; margin:0px; display:inline;"]examine the documentation surrounding its creation.

The Court was formally established in 1978 by the Foreign Intelligence Surveillance Act to review applications for monitoring the communications of American citizens suspected of involvement in espionage or terrorist activities. The legislation was both a result of concerns over the NSA’s domestic surveillance practices of the 1970s, as well as over the findings of the Church Committee’s investigations into Richard Nixon’s abuses of federal authority to spy on his rivals.[font style="font-size:0.7692em;"]


[/font][font style="font-size:0.8462em;"]More:  [/font][div class="footer" style="padding: 0px; margin: 0px; display:inline; font-size:0.8462em; position:static;"]http://nsarchive.wordpress.com/

[Thinkingabout]

1. More information on the creation of FISA Act

FISA was created by Ted Kennedy for two reasons. First, it was created as a response to President Nixon using warrantless wiretaps and other searches to target political opponents and activist groups. The other reason it was created was made clear by one of the US Court of appeals decisions that affirmed the constitutionality of FISA, and that is the 1984 US v Duggan decision. Part of the Duggan decision reads:




Prior to the enactment of FISA, virtually every court that had addressed the issue had concluded that the President had the inherent power to conduct warrantless electronic surveillance to collect foreign intelligence information, and that such surveillances constituted an exception to the warrant requirement of the Fourth Amendment.




The Duggan decision goes on to list six or seven other appeals court decisions where courts concluded that the President has the inherent power to conduct this kind of warrantless electronic surveillance to collect foreign intelligence information.




Senator Kennedy and President Carter did not like the idea of warrantless wiretapping even though it was judged in the case of foreign espionage and terrorism to be Constitutional …so they created FISA which requires the Justice Department and intelligence agencies of the executive branch to get a judge to sign off on a warrant in order to conduct these surveillances. It also gives a number of congressional committees the ability to look over these warrants.




Critics point out that the judges almost always sign off on FISA warrants. That’s right. They sign off because as pointed out in the Duggan decision, appeals courts have already ruled many times that the President has the right to conduct this surveillance and that this surveillance does not violate the fourth amendment provided that the ultimate target of the investigation is a foreign sponsored entity or terrorist organization. FISA does provide additional rules as to how these activities are to be done and also restricts how long the justice department and intelligence agencies can hold onto the acquired information before they must dispose of it.




So to review, the FISA law was created because before FISA, appeals courts had already ruled that Presidents could conduct this surveillance without a warrant and FISA finally brought some level of legislative and judicial branch oversight to these activities. Now for the first time, the executive branch could not legally conduct frivolous or abusive surveillance of people and groups without the other branches of government finding out and potentially taking action.

http://steveleser.blogspot.com/2013/06/transcript-of-nsa-surveillance-portion.html

[struggle4progress]

2. Direct link to the National Security Archive pages:

http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB178/index.htm

[bemildred]

3. The birth of FISA is the re-birth of the national security state.

And the beginning of the Raygun revolution, this is where we started out for then. Congratulations.