The Foreign Intelligence Surveillance Act (FISA) is an Act of Congress passed in 1978 and signed by the then President Jimmy Carter. The Act stipulates the procedures to be followed when obtaining intelligence from foreign powers and agents of foreign powers both physically and electronically. The Act has been amended severally. In 2001, it was amended to involve groups and terrorist organizations not supported by foreign governments in an Act called the USA PATRIOT Act. A further amendment was done in 2007 to overhaul most of the provisions, in the Act called Protect America Act. A final amendment was done in 2008 called the FISA Amendments Act of 20081.
The most significant amendment to the bill was The Patriotic Act of 2001 after the country faced the biggest attack from a foreign terrorist group. The United States Department of Justice announced that it would seek legislation that would give powers to state authorities to protect the homeland from such activities and attacks in the future. The proposed legislation was to give federal authorities the ability to monitor internet use, intercept emails and phone calls as well as wiretapping conversion between citizens and non citizens. The Act would also permit the detention of non citizens who are deemed to be dangerous to the home land2. This Act is by far one of the most controversial legislation in the history of the Congress. This paper looks to analyze the provisions of the Act as well as the pro and cons that came along.
Provisions of the FISA
The initial Act that was enacted in 1978 did not have many controversial aspects in it and was later blamed for not providing enough powers to aid the process of collecting intelligence. Some security experts blamed the restriction in the Act for the poor intelligence leading to the September 11 2001 attacks. Drastic amendments to the Act in 2001 is what generated most of the debate.
One of the most fundamental provisions of the Act was Section 203 (b) and (d) that necessitated the sharing of intelligence between security agencies3. This provision was the base at which the Act seeks to eliminate the hurdles that stopped government agencies from sharing information obtained from criminal investigation and questioning. These hurdles were blamed for the poor job the security apparatus did in detaining the September 11th suspects. Investigation into the terrorist attacks indicated that different government agencies had different incoherent information, that when combined would have made meaningful intelligence. The Center for American Progess, in its report, insist that even though the Federal Bureau if Investigations (FBI) had a list of wanted terrorist that was accurate, the Central Intelligence Agency (CIA) knew of a major plot against the U.S. This information was however not shared between these organizations, leading to the terrorists hijacking planes and ramming them into building and significant installations in the country.
The second provision that that is the FISA is the ‘roving wiretap’ provision of Section 206. This provision gives authority to the security agencies to use a single court order to wiretap all the electronic devices of one individual. In the past, the provision of the FISA required that each device wiretapped required a different court order. This proved to be a major bottleneck in getting intelligence for very sophisticated terrorist or suspected dangers to the homeland. Some spies are known to have very technologically advanced devices that getting separate court orders would prove to be a nightmare. This provision doe not require the agency to identify the suspect under investigation so to be granted the authorization to wiretap the premise4. It is also not obligatory or important for the agency to declare how the wiretap will be done. It is upon the agency to find out how well they will get the information they need. However, some experts warn the vague manner in which this provision has been made could lead to abuse and violation of privacy.
A third provision by the FISA is the “Sneak and Peak” provision provided under section 213. This provision grants the security agencies the power to enter into the office, home or premise of a suspected terrorist or spy without informing the target. In the process of such undisclosed intrusions, the agencies are allowed to take photographs, examine data in the computers as well as planting devices that monitor or mirror the operation of the suspect on the computer. These devices should also be able to monitor the internet usage and transmissions of the suspect. In suggesting this provision, the Justice Department asserted that this unexplained intrusion had been used against drug dealers. But now that terrorism was of more danger to the homeland, then there was need to take terrorists as the most dangerous persons on US soil5.
A very controversial provision in the amendment to the FISA is the “Libraries Provision”. This provision allows the government security agencies to access any tangible or written information regarding the suspects, be they documents, books, records or papers. The provision further does not obligate the agency to inform the suspect that it is accessing the vital information. The FBI is expected to get a court authority secretly by simply proving that the suspects could be involved in espionage or terrorism. This will give the agencies access to very personal information about such suspects and probably assist in building a profile of the suspect.
Pros of the FISA
With the introduction of the FISA, the US government made clear its intentions to protect its citizens and the homeland. The Act provided new guidelines in a field not regularized by many governments. The government had seen unprecedented discordant collection and analysis of intelligence during the Cold War. Its amendments after the September 11th attacks further sought to assure the citizens that country would be more secure than before. The extensive introduction of the portions dealing in terrorist relayed the need to put terrorism at the top of security priorities. Indeed, political and public support was provided in enacting and implementing the FISA. The Acts and the amendments to it were done without much resistance and implementation was swift with all the arms of government and the security agencies adopting the new provisions6 (Boykoff. Public confidence in the system and the government improved with many citizens asserting to feeling safer after these legislations.
Before the FISA was enacted, it was the responsibility of attorney generals of the country to oversee surveillance activities and the wiretappings on suspected spies and terrorists. This led to inconsistent execution of executive powers and posed grave danger to the citizens. Furthermore, the matter as to entering people’s private residences was before the Supreme Court and no ruling had been provided7. Thus, the introduction of the FISA provided guidelines to these surveillance activities introducing standards with which the country’s organs operated without breaking the constitution.
Amendments to the FISA in 2001 allowed the detention of enemy combatants. This strategy was very important in two critical ways. The first role the detention played was to prevent the rivals from regrouping with the rest of the terrorist and furthering their course of war against the United States. This provision was not seen as sentence or a judicial verdict, but was viewed a simple strategy of war, just like in war where enemy solders are held as prisoners of war. The second key role was to provide an avenue through which such terrorist would be tried according to international law. These trials would be carried out in military court which had a good record in the past.8
Cons against the FISA
The FISA has faced much criticism and disapproval. One of the major problems associated with the FISA is the fact that it infringes on personal liberties. It is expected that measures will always be undertaken to curb matter such as terrorism and espionage. But the introduction of the FISA and the subsequent amendments has to substantial infringement in civil liberties which have been expressly provided for in the United States Constitution. The Act has gone further to provide detention based on the association of an individual and declares that one can be considered guilty simply by his known associates, thereby contravening the right to association.
The second criticism of the FISA and its subsequent amendments is the eventual discrimination and suspicion of citizens and foreigners who profess Islam. Many citizens of Middle Eastern descent have complained to the authorities of unfair treatment simply based on their Arabic looks. Some of them have been arrested without cause and detained without proof of their indulgence in terrorism. Travelling to the US from the Arabic states has become more and more difficult because of the rules proposed by the FISA.
The government also been allowed by the Act to monitor the financial transaction of individual. This information is personal and exposure of such information is breach to personal privacy. Many people fear that this power could be used to blackmail citizens on their finances.
The introduction of the Act has, without doubt, made the country a safer and better country. The provision of the Act has created clear guidelines acceptable within law on how to get intelligence and mount surveillance on suspected individuals. While the Act has been criticized for breaching personal privacy, it is fundamental to understand that terrorism has become one of the biggest security challenges in recent times. Governments all over the world have come to an agreement that personal liberty and privacy will come second if it’s dealing with terrorism. The constitution has provided for these rights, while at the same time the same constitution considers the sovereignty of a state to be superior to any other legislation. Thus most governments feel that it’s right to do all it takes to ensure that the homeland is safe, which is the basic principle behind the Foreign Intelligence Surveillance Act (FISA).
Boykoff, Julie. “Review of How Patriotic is the Patriot Act? Freedom Versus Security in the Age of Terrorism, by Amitai Etzioni.” The Journal of Politics, 68 (2), 2006: 457-487.
Larry, Abramson, and Maria Godoy. The Patriot Act: Key Controversies. Feb 14, 2006. http://www.npr.org/news/specials/patriotact/patriotactprovisions.html (accessed October 26, 2011).
Center for American Progress. “Securing America, Protecting Our Freedoms After September.” In Progressive Priorities An Action Agenda For America,, 2005: 217-234. .
Center For Democracy & Technology. The Nature and Scope of Governmental Electronic. July 2006. http://www.cdt.org/wiretap/wiretap_overview.html (accessed October 26, 2011).