Fundamental concepts of the Foreign Intelligence Surveillance Act (FISA)
The Act was enacted in 1978 to provide for procedures of electronic surveillance in gathering foreign intelligence (Bazan, 2008). Foreign intelligence is defined under the Act to include activities of foreign powers, foreign governments, and their assigns. It was amended in 1994 to include physical searches inside the U.S., targeting domestic residents with foreign connections. Essentially then, the term foreign does not mean that the Act applies outside U.S., but is rather used to distinguish such surveillance from domestic surveillance.
The purpose of the Act is to strike a balance between the right to privacy and protection of national security (Bazan, 2007). To such extent, it provides mechanisms through which surveillance can be conducted without a court order or an order obtained 72 hours after commencement of the surveillance. In relation to the court order, the Act establishes the FISA Court; proceedings before the court are conducted ex parte, with only the federal agents appearing before court. The proceedings are secret and cannot be divulged. Appeals from the FISA Court are heard by the FISA Court of Review.
In relation to surveillance without an order of the court, the Act empowers the president through the Attorney General to authorize surveillance for a maximum period of one year. By dint of section 1801(a), such surveillance is confined to foreign intelligence as defined under the statute. Accordingly, such surveillance cannot be authorized against a U.S. person, especially in light of the Fourth Amendment.
FISA procedures for individuals in the U.S.
For individuals resident in the U.S., two distinctions can be made under the Act: one, a foreign agent in the U.S.; and two, a U.S. person with foreign connection. Generally the procedures are different. For a foreign agent, the Act allows for a warrantless surveillance through an order of the Attorney General. The AG only has to certify that the surveillance relates to foreign intelligence and that such surveillance will not obtain any communication or information of a US person. The certification is made to the FISA Court and a report compiled and presented to senate and the parliament.
For US persons, a court order has to be obtained. This is because of the Fourth Amendment which disallows arbitrary searches. As previously noted, the Act was amended in 1994 to include physical searches. The federal agent desiring to conduct the surveillance has to appear before the FISA Court and show a probable cause. The probable cause in most cases is showing a connection between the person and a foreign power. It is important to note that communication relating to a U.S. person cannot be obtained without following the due process under the Act.
Extraordinary rendition
This is the seizure of suspects abroad and transferring them, without the requisite legal process, to other locations either for interrogation or detention (Abrams, 2012). This process basically resembles rendition only that it is not legal. It has been used as a counter-terrorism tactic to transfer suspected terrorists from their base of operation to areas where at the very least they cannot plan any terrorist activities. This is justified by the fact that their own jurisdiction may either condone them or have no rendition processes or if they are there, they would be largely ineffective.
On the face of it, this process is vital for the protection of national and to some extent, international security. Especially so given the fact that majority of its victims only abide to their own personal law, thus disregard the basic laws that govern humanity. For such people, dealing with them through the ordinary law would be largely futile.
However, one thing that separates civilized and uncivilized people in the contemporary world is adherence to law. If then the government cannot adhere to its own laws, then technically and to such extent, there is little difference between them and the terrorists. In addition, the executive derives its authority from the Constitution, under which they are sworn to uphold. To the extent that the process violates the Constitution it can be said that the executive is in breach of the Constitution.
If then such violation is tolerated, this would encourage an arbitrary and tyrannical executive; there is no telling as to whether it will not in the long run turn against its citizens. In essence, in as much as the purpose of extraordinary rendition is noble, the means are illegal and a violation of the law. Perhaps it would be better if a better approach, sanctioned by law, is adopted.
References
Abrams, N. (2012). Anti-Terrorism and Criminal Enforcement (4th Ed) Minnesota: Thomson West.
Bazan, E.B. (2007). The Foreign Intelligence Surveillance Act: An Overview of the Statutory
Framework and U.S. Foreign Intelligence Surveillance Court and Foreign Intelligence
Surveillance Court of Review Decisions. CRS Report for Congress, Order Code RL30465.
Bazan, E.B. (2008). The Foreign Intelligence Surveillance Act: Overview and Modifications
New York: Nova Science Publishers. Print.
The Foreign Intelligence Surveillance Act, 50 U.S.C § 1801
