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FISA and the Attack on Habeas Corpus
By: DSL
Does FISA need to be re-written or should it be left alone as the original it was originally intended to be? Currently Congress if trying to update the Foreign Intelligence Surveillance Act is this a smart idea? We first need to look at its history.
FISA became law in 1978, the act created a court, which meets in secret, and approves or denies requests for search warrants. Only the number of warrants applied for, issued and denied, is reported. In 1980 (the first full year after its inception), it approved 322 warrants. This number has steadily grown to 2224 warrants in 2006. Only 5 warrants have been rejected since the court first met in 1979.
The US Patriot Act of 2001, primarily to include terrorism on behalf of groups that are not specifically backed by a foreign government, amended the Act.
In order to understand were we are going we have to first understand where we have been. The Foreign Intelligence Surveillance Act resulted from extensive investigations by Senate Committees into the legality of domestic intelligence activities. These investigations were led separately by Sam Ervin and Frank Church in 1978 as a response to President Nixon’s usage of federal resources to spy on political and activist groups, which violate the Fourth Amendment to the U.S. Constitution. The act was created to provide Judicial and congressional oversight of the government's covert surveillance activities of foreign entities and individuals in the United States, while maintaining the secrecy needed to protect national security. It allowed warrant-less surveillance within the United States for up to one year unless the "surveillance will acquire the contents of any communication to which a United States person is a party". If a United States person is involved, judicial authorization was required within 72 hours after surveillance begins.
For most purposes, including electronic surveillance and physical searches, "foreign powers" means a foreign government, any faction(s) or foreign governments not substantially composed of US persons, and any entity directed or controlled by a foreign government. This definition also includes groups engaged in international terrorism and foreign political organizations. The sections of FISA authorizing electronic surveillance and physical searches without a court order specifically exclude their application to groups engaged in international terrorism.
The statute limits its application to US persons. A US person includes citizens, lawfully admitted permanent resident aliens, and corporations incorporated in the US. The code defines "foreign intelligence information" to mean information necessary to protect the United States against actual or potential grave attack, sabotage or international terrorism.
The President may authorize without a court order, through the Attorney General, electronic surveillance without a court order for the period of one year provided it is only for foreign intelligence information; targeting foreign powers or their agents; and there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party.
The Attorney General is required to make a certification of these conditions under seal to the Foreign Intelligence Surveillance Court and report on their compliance to the House Permanent Select Committee on Intelligence and the Senate Select Committee on intelligence.
This act specifically limits warrant-less surveillance to foreign powers, the act does not authorize the use of warrant-less surveillance on: groups engaged in international terrorism or activities in preparation therefore; foreign-based political organizations, not substantially composed of United States persons; or entities that are directed and controlled by a foreign government or governments. Under the FISA act, anyone who engages in electronic surveillance except as authorized by statute is subject to both criminal penalties and civil liabilities.
Alternatively with a court order, the government may seek a court order permitting the surveillance using the FISA court. Approval of a FISA application requires the court find probable cause that the target of the surveillance be a "foreign power" or an "agent of a foreign power", and that the places at which surveillance is requested is used or will be used by that foreign power or its agent. In addition, the court must find that the proposed surveillance meet certain "minimization requirements" for information pertaining to US persons.
In addition to electronic surveillance, FISA permits the "physical search" of the "premises, information, material, or property used exclusively by" a foreign power. The requirements and procedures are nearly identical to those for electronic surveillance.
The law currently provides for remedies for violations of FISA. Both the subchapters covering physical searches and electronic surveillance provide for criminal and civil liability for violations of FISA.
Criminal sanctions follow violations of electronic surveillance by intentionally engaging in electronic surveillance under the color of law or through disclosing information known to have been obtained through unauthorized surveillance. The penalties for either act are fines up to $10,000, up to five years in jail, or both.
In addition, the statute creates a cause of action for private individuals whose communications were unlawfully monitored. The statute permits actual damages of not less than $1,000 or $100 per day. In addition, that statute authorizes punitive damages and an award of attorney's fees. The current proposal limits ones recovery and excludes certain parties from being sued.
Similar liability is found under the subchapter pertaining to physical searches.
In both cases, the statute creates an affirmative defense for a law enforcement agent acting within their official duties and pursuant to a valid court order. Presumably, such a defense is not available to those operating exclusively under presidential authorization.
In 2004, FISA was amended to include a "lone wolf" provision. 50 U.S.C. §1801(b)(1)(C). A "lone wolf" is a non-US person who engages in or prepares for international terrorism. The provision amended the definition of "foreign power" to permit the FISA courts to issue surveillance and physical search orders without having to find a connection between the "lone wolf" and a foreign government or terrorist group.
Since the terrorist attacks in New York we have tried to balance our individual right with those of nations security. FISA was enacted to protect those rights while keeping our nations security in mind. Questions we need to ask ourselves: Does FISA need to be amended? What will the Amendments do to our civil liberties and are those liberties worth giving up in order to be “more safe”?
Some in Congress would argue that they do, however the ACLU would argue that they take away our rights as individuals who may be innocent victims of such intrusions. It is interesting that Congress and the lobbyist are interested in the rights of intangible entities more so than those of the tangible individual citizens who are part of their electorate. Corporations can’t vote but the tangible citizen can. What does it amount down to? Is it economics? There have been several theories as to what it might be but none conclusive, time may be the only indicator of what toll it will take on the individual citizens liberties. As the ACLU would argue these laws are an attack on Habeas Corpus. Some are now starting to agree and the pendulum may swing the other way.
Article Source: http://www.ezarticles.info
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