Introduction
The Foreign Intelligence Surveillance Act, sometimes known as FISA, is a federal law enacted in the United States, designed to allow surveillance of individuals who are perceived to be a threat to the United States (Breglio, 2003). First enacted in 1978, the Foreign Intelligence Surveillance Act was originally intended for use during the Cold War. Because that particular war depended so much on intelligence regarding what foreign nations were doing and how they were planning on using the information they obtained about the United States to undermine her security, the government felt the need to enact a piece of legislation that allowed federal investigators leeway regarding obtaining information (Breglio, 2003). However, once the Cold War ended, the Foreign Intelligence Surveillance Act was not modified very regularly or called into question; it existed on the books and was used when necessary, but was not a great source of concern for anyone but those whom it applied to directly (Breglio, 2003).
After September 11th, 2001, and the terrorist attacks on the United States that occurred that day, the general political climate in the United States changed significantly. Suddenly, the United States seemed to be facing opponents and enemies at every gate; the government felt the need to make significant changes to the Foreign Intelligence Surveillance Act during this time (Breglio, 2003). In 2001, President Bush proposed an amendment to the Foreign Intelligence Surveillance Act, an amendment that would become known as the highly-contentious PATRIOT Act (Breglio, 2003). With this amendment, the federal government of the United States obtained control over the ability to surveil people within the United States-- natural-born citizens, naturalized citizens, and non-citizens-- in the name of national security (Breglio, 2003). Despite many claims of illegality, the PATRIOT Act amendment to the Foreign Intelligence Surveillance Act remains in place today (Breglio, 2003). Some claim that the the amendment PATRIOT Act and the Foreign Intelligence Surveillance Act are necessary evils when it comes to protecting the United States from her enemies, while others contend that the acts violate the American Constitution.
Purpose of the Foreign Intelligence Surveillance Act
After the United States was attacked by terrorists on September 11th, 2001, the American government-- led by President Bush at the time-- decided that stronger measures were needed to protect the American people from potential harm. The Foreign Intelligence Surveillance Act, as it existed at the time, was not all-encompassing enough to obtain the intelligence needed to protect the United States, according to Bradley (2002).
There were problems with the legality of the changes made to the Foreign Intelligence Surveillance Act, however. Breglio (2003) writes:
Thus, the court was left with a clean slate on which to consider the issue of the legitimacy of warrantless foreign intelligence surveillance, uncomplicated by the complex statutory framework of FISA. The court chose to abandon the warrant requirement in the overseas context and to conduct a reasonableness analysis instead. In a discussion of the “costs of imposing a warrant requirement,” the court mentioned that a warrant requirement might “‘unduly frustrate the efforts of Government to protect itself from acts of subversion and overthrow’” The court also noted the special needs cases in support of its assertion that a warrant requirement would be an “undue burden” in the context of foreign intelligence searches abroad, and cast doubt on the institutional competence of the judiciary to supervise investigations in such cases. (Breglio, 2003)
Legally speaking, the Foreign Intelligence Surveillance Act withstood a number of potential legal challenges over the years, but the amendment of the USA PATRIOT Act added more legal questions into the mix. Notably, the United States government came under fire due to the widespread nature of its domestic wiretapping program; a program that was covered under the USA PATRIOT Act, but a program that many Americans found to be intrusive, overbearing, and unconstitutional (Jaeger, Mcclure, Bertot and Snead, 2004).
One of the rights that the American citizen retains is the right against self-incrimination, and the right against warrantless searches and seizures (Jaeger, Mcclure, Bertot and Snead, 2004). These rights are so fundamental that the Founding Fathers felt the need to put them into the first ten Amendments to the United States Constitution, and many legal battles have been fought over the extent to which these rules apply and when they apply to law enforcement officials (Jaeger, Mcclure, Bertot and Snead, 2004). One of the contentious issues surrounding the USA PATRIOT Act and the Foreign Intelligence Surveillance Act, once it had been amended, was the issue of warrantless searches and seizures-- particularly warrantless wiretaps (Jaeger, Mcclure, Bertot and Snead, 2004).
The USA PATRIOT Act amendment to the Foreign Intelligence Surveillance Act also inflicted other restrictions upon American citizens, some of which are just coming to light today (Jaeger, Mcclure, Bertot and Snead, 2004). Jaeger, Mcclure, Bertot, and Snead (2004) write, “While the USA PATRIOT Act has altered how certain types of federal intelligence investigations affect libraries, the act also greatly alters how researchers can study information policy issues related to libraries. To date, the gravity and scope of the act's implications for researchers of library services, resources, operations, and policies have not been discussed widely. Researchers now must account for questions they cannot ask, or may not be able to ask, during the course of information policy research related to libraries” (Jaeger, Mcclure, Bertot and Snead, 2004). Essentially, the USA PATRIOT Act was a victim of poor forward mapping by its creators; these creators had no way to see how the Act would be utilized. In addition, the creators could not have structured the USA PATRIOT Act differently to function in the way that they required, but still provided for the rights and liberties of American citizens.
The USA PATRIOT Act is an adaptation of the Foreign Intelligence Surveillance Act, which means that in and of itself, the Foreign Intelligence Surveillance Act was blind to the forward mapping that would be done on it. Whether or not the PATRIOT Act and even the larger Foreign Intelligence Surveillance Act will be declared unconstitutional in the future is as of yet unclear; however, it is likely that further adaptation to both the amendment and the Act itself will occur relatively shortly (Swire, 2003). Indeed, the Protect America Act of 2007 has overridden some of the more contentious aspects of the USA PATRIOT Act already (Thomas and Stone, 2007).
Departments and Bureaucratic Controls
The Foreign Intelligence Surveillance Act is utilized by a number of different bureaucratic agencies within the United States Federal Government. The National Security Agency, for example, is responsible for overseeing the signals intelligence systems of the United States, and thus has had a hand in some of the more contentious aspects of the Foreign Intelligence Surveillance Act in recent years (Breglio, 2003). The National Security Agency (NSA) has, for example, come under fire for its use of wiretaps against American citizens. However, the National Security Agency is not the only agency responsible for using the Foreign Intelligence Surveillance Act and the USA PATRIOT Act in the course of their duties-- for instance, the Department of Homeland Security and the Central Intelligence Agency both operate using the Foreign Intelligence Surveillance Act and the USA PATRIOT Act.
The USA PATRIOT Act also created a special court system through which investigators operating under the scope of the USA PATRIOT Act and the Federal Intelligence Surveillance Act can acquire warrants-- both warrants for wiretaps and search warrants (Breglio, 2003). This court is not bound to reveal the warrants that it issues; however, it is bound by law to reveal how many warrants it issues or how many it denies over a certain period of time (Breglio, 2003). This has also incurred some concern on the part of those who favor transparency in government, but in some cases, it has been shown that secret warrants and secret wiretaps are the only way to obtain important national security information (Breglio, 2003).
The Strategic Triangle
The policy benefits the United States Federal Government, in that it protects the government against unwanted prying by foreign intelligence systems and domestic busibodies. It protects government agents from the problem of too much available intelligence, as well. If the thought process is extended, then the policy also benefits the American people, in that it allows the government to keep them safe and secure from potential domestic and foreign threats. However, it does pose problems in that it potentially limits the rights of natural American citizens, rights that are guaranteed in the Constitution.
Operationally, the USA PATRIOT Act and the Federal Intelligence Surveillance Act has been largely a success; the NSA and other intelligence agencies responsible for using the Act have been using it without too many legal hangups for more than a decade. However, the Act does come across a number of potential legal questions and political snags depending on the way the Act is used. Because the USA PATRIOT Act and the Federal Intelligence Surveillance Act are relatively open-ended, they have the potential to open the door for many legal questions and political problems for elected officials. Supporting the USA PATRIOT Act has become something of a black mark on some politician’s records, for instance; many people are very uncomfortable with the government having the freedom to spy on them with impunity, and have voted against entrenched politicians as a result.
Conclusion
The USA PATRIOT Act and the Federal Intelligence Surveillance Act have a number of problems that have to be addressed. However, implementation of the policies in the USA PATRIOT Act and the Federal Intelligence Surveillance Act have also been shown to be very important to the security of the United States as a whole. However, the USA PATRIOT Act has come under fire for potentially violating some of the Constitutional rights guaranteed to American citizens, such as the right to be protected against warrantless searches and seizures. Transparency in the government, particularly complete transparency, is not possible; with complete transparency, there would be no way to have a functional intelligence agency. Using the strategic triangle methodology, a few workable solutions have been found regarding the implementation of the USA PATRIOT Act and the Federal Intelligence Surveillance Act, while still maintaining the validity and the integrity of the United States Constitution.
References
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