Foreign Intelligence Surveillance Act of 1978

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Contents

Background

The Foreign Intelligence Surveillance Act of 1978 (FISA) became law on October 25, 1978. It establishes procedures for the application, approval, and extension of orders authorizing the use of electric surveillance for foreign intelligence purposes. Permits the United States Attorney General to authorize emergency employment of such surveillance for 24 hours in the absence of a judicial order. It also requires the Chief Justice of the United States to designate seven district court judges to the United States Foreign Intelligence Surveillance Court (FISC)to hear applications for, and grant orders approving, electronic surveillance anywhere within the United States.

In 1995, the act was amended to cover physical searches.

In 2001, the Patriot Act amended FISA to extend the grace period from 24 to 72 hours. It also changed the composition of the FISC.

In 2002, Sen. DeWine proposed loosening the standards for domestic surveillance; however, both the Justice Dept. and the Congress opposed his changes. DeWine’s proposal would have lowered the standard for obtaining a warrant for surveillance of foreigners within the United States from “probable cause” to “reasonable suspicion.” The Justice Department was represented by James A. Baker, who was the Counsel for Intelligence Policy, and head of Office of Intelligence Policy and Review. In a statement to the Senate Select Committee on Intelligence, he opposed the changes because they were unnecessary and possible unconstitutional. He said that the current "probable cause" standard had not caused any difficulties with obtaining FISA warrants, and that the extended 72 hour grace period enabled the government to respond swiftly to terrorist threats.

In 2007, the Protect America Act of 2007 essentially gutted the provisions of the original bill, by allowing the President to wiretap any electronic communication without a warrant, or any exteran oversight. (Text of Protect America Act of 2007 (S. 1927))

Implementation

The Executive Branch follows the procedures in Executive Orders 12139 and 12949 to implement this act. President George W. Bush has issued other executive orders which still remain secret. Requests for FISA warrants are prepared by the Office of Intelligence Policy and Review.

Effectiveness

Several high-ranking officials have testified about the usefulness of FISA for combating terrorism. In particular, they have praised the 72 hour grace period, which they have used hundreds of times since September 11, 2001.

  • James A. Baker said "One simple but important change that Congress made was to lengthen the time period for us to bring to court applications in support of Attorney General-authorized emergency FISAs. This modification has allowed us to make full and effective use of FISA's pre-existing emergency provisions to ensure that the government acts swiftly to respond to terrorist threats. Again, we are grateful for the tools Congress provided us last fall for the fight against terrorism. Thank you." - FISA: Testimony of James Baker before the Senate Select Intelligence Committee (July 31, 2002)
  • John Ashcroft said "In 2002, using Foreign Intelligence Surveillance Act tools, we targeted more than 1,000 international terrorists, spies and foreign powers, who threaten our country's security. We requested 170 emergency FISAs. This is more than three-times the total number of emergency FISAs obtained in the 23 years prior to September 11." - FISA: Testimony of John Ashcroft before the House Judiciary Committee (April 2003)
  • Robert S. Mueller III said "Since September 11, 2001, we have made full -- and very productive -- use of the emergency FISA process whereby we can often establish electronic surveillance within hours of establishing probable cause that an individual is an appropriate FISA subject. Thanks to the efforts of our agents and the attorneys in NSLU and OIPR, in the one year period from September 11, 2001 to September 19, 2002, we have obtained 113 emergency FISAs, compared to the 46 emergency FISAs we obtained in the prior 23 years since the FISA statute came into existence." - FISA: Testimony of Robert Mueller before the Senate Judiciary Committee (March 4, 2003)

History

FISA was passed in response to the relevation of Project Shamrock, which was a 25 year effort by the NSA to read every international telegram entering or leaving the United States, including messages to or from US citizens. Senator Frank Church said that the NSA had the "potential to violate the privacy of Americans is unmatched by any other intelligence agency." and if it was ever used domestically, "no American would have any privacy left.... "

Recent Events

In December of 2005, the New York Times reported, and President George W. Bush subsequently admitted that the government was violating this law by conducting warrantless eavesdropping against US citizens. Also see the article Illegal Domestic Surveillance - Bush Circumventing FISA.

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