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Freedom of Expression--Speech and Press
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HEARINGS ON THIS SUBJECT WERE HELD WED. AND ON HTTP://WWW.CSPAN.ORG TODAY:
Inside America�s Secret Court: The Foreign Intelligence Surveillance Court
FISA
by Patrick S. Poole - [EMAIL PROTECTED]
http://fly.hiwaay.net/~pspoole/fiscshort.html
Introduction
In a highly restricted room inside the Department of Justice Building in
Washington D.C. resides a federal court that meets in complete secrecy. Even
though the rulings this secret court issues may result in criminal charges,
convictions and prison sentences for US citizens, their writs and rulings are
permanently sealed from review by those accused of crimes and from any
substantive civilian review. This is the Foreign Intelligence Surveillance
Court (FISC), which considers surveillance and physical search orders from
the Department of Justice and US intelligence agencies. During the 20-year
tenure of the FISC the court has received over 10,000 applications for covert
surveillance and physical searches. To date, not a single application has been
denied.
The Foreign Intelligence Surveillance Act (FISA)<1> was passed in 1978,
during the days of increased terrorist activity against American citizens
around the world. The Cold War and American involvement in the Middle East
raised fears both about increased spying on US government, military and
business facilities and personnel and about terrorists planning attacks in the
US and against Americans overseas. In this atmosphere, federal law enforcement
and intelligence administrators requested Congress to increase surveillance
powers to combat these growing trends. The FISA statute was also a regulative
response to the allegations of domestic spying by federal law enforcement and
intelligence agencies during the 1960s and 70s.
However, with the FISA legislation passed, the process was cloaked in absolute
secrecy. While few Americans are even aware of the court�s existence, the FISC
routinely hears applications for surveillance and physical searches from
federal law enforcement and intelligence agencies. The FISA court issues more
surveillance and physical search orders than the entire federal judiciary
combined.
Many constitutional scholars and civil liberty advocates note that the overly
broad powers of the FISA statute and court authority are in direct violation
of the Fourth Amendment protections against unreasonable searches and general
arrants. With such a powerful weapon against citizens� Constitutional
liberties, many opponents of the court argue that Congress should conduct
extensive oversight of the court. But congressional oversight of the FISA
court is virtually non-existent.
The only information required by FISA to be provided to congressional
oversight committees is the number of surveillance orders approved each
calendar year and brief semi-annual reports. The entire 1997 report on the
FISC�s activity totaled two paragraphs. But what those brief annual reports
do chronicle is the exponential rate of growth of surveillance orders
issued by the FISC.
Recent criminal cases proceeding from evidence gathered by FISA surveillance
orders have raised many questions regarding the constitutionality of FISA
searches and surveillance and the assumption of enormous powers by federal
law enforcement and intelligence agencies. Defense attorneys for those charged
for crimes with evidence gathered under a FISA order maintain that the FISA
court stands as a �court of last resort� for zealous prosecutors unable to
obtain a criminal indictment from other federal courts. Some of the orders
approved by the FISC have proven to be government �fishing expeditions� aimed
at circumventing citizen�s Fourth Amendment protections against unwarranted
searches.
Origins of the Court
With the collapse of the Nixon Administration following the Watergate scandal,
the Senate Select Committee to Study Governmental Operations with Respect to
Intelligence Activities (otherwise known as the Church Committee) discovered
that the federal government had been engaged in widespread domestic
surveillance for several decades. In response, several members of Congress
set about to devise a plan to limit the surveillance power of federal law
enforcement and intelligence agencies. In the wake of the subsequent public
outrage and out of fear warrantless surveillance would be outlawed altogether,
President Ford supported the FISA bill to limit the �inherent authority�
of the President to conduct warrantless surveillance in the interest of
national security.
Prior to that time, most presidents claimed to have implicit constitutional
authority to approve warrantless surveillance for national security purposes
under the executive branch�s Constitutional power to conduct foreign policy.
But that power had been used by government agencies to justify domestic spying
against law-abiding anti-war demonstrators and many of the leaders of the civil
rights movement of the late 1960s despite First and Fourth Amendment
protections prohibiting such activity.
The FISA bill was a product of closed-door negotiations lasting several months
between legislators and the Justice Department. Senator Edward Kennedy (D-MA),
who had attempted to regulate the power of warrantless surveillance in four
different sessions, sponsored the FISA legislation. The FISC concept was a
compromise between legislators who wanted the FBI and National Security Agency
(NSA), the only two agencies affected by the FISA statute, to follow the
standard procedure for obtaining a court order required in criminal
investigations and legislators. The federal agencies believed that they
should becompletely unfettered in conducting their foreign intelligence
surveillance work inside US borders. Hence, the FISC was born.<2>
FISA was approved by Congress and signed into law by President Jimmy Carter on
October 25, 1978. Executive Order 12139,<3> signed by President Carter several
months later, officially chartered the FISC. The legislation established an
authorization procedure for the FISC to issue surveillance orders without
probable cause. It also set up a �minimization� procedure for communications
by US citizens inadvertently intercepted by the agencies. With the passage of
FISA, the NSA was bound for the first time to a process of judicial review
before initiating domestic surveillance operations.
The FISC
The court consists of seven federal judges chosen from the federal district
courts by the Chief Justice of the Supreme Court; each serves a non-renewable
seven-year term. Membership of the court is staggered so that a new member is
brought in each year. Members are chosen from different federal districts,
however, at least one member must come from a district court in the Washington
D.C. area. Judge Royce Lamberth, who is a member of the US District Court for
Washington DC, currently serves as the FISC Chief Judge.
A separate FISC Appeals Court composed of three members hears the case for
applications denied by the lower level of the court. To date, the appeals
court has never heard a case. The last resort that the FISA statute provides
for any surveillance application rejected by the FISC Appeals Court is an
appeal directly to the Supreme Court.
The FISC court conducts all of its hearings in a secret windowless courtroom,
sealed from the public by cipher-locked doors on the top floor of the
Department of Justice. It considers surveillance and physical search
applications that have been reviewed and forwarded by the Office of
Intelligence Policy and Review, which is the Department of Justice�s
section that deals with foreign intelligence matters.<4>
All applications forwarded to the FISC must be reviewed and approved by the
Attorney General. If the FISC judge considering the application believes that
the request meets the standards of the FISA statute, electronic surveillance
can be approved for up to ninety days for US citizens or a year for foreign
nationals. The court also hears requests for extensions, which are routinely
granted.
The initial authorization of the court included only the power to approve
wiretapping and surveillance. After Janet Reno approved a warrantless physical
search of CIA spy Aldrich Ames� Arlington, Virginia home in October 1993,
the Department of Justice made a request to Congress that the authority of
FISC be expanded to include physical searches. Congress obliged by including
authorization for an expansion of FISC powers in the Intelligence Authorization
Act of 1995.
President Clinton implemented the new powers through Executive Order 12949.<5>
Apart from giving the FISC physical search powers, the executive order also
authorized the Attorney General �to approve physical searches, without a
court order, to acquire foreign intelligence information for periods up to one
year, if the Attorney General makes the certifications required by [FISA].�<6>
This expansion also included the power for evidence gathered in FISA
surveillance and searches to be used in criminal proceedings. However, all
information regarding the order and any evidence obtained under the order
are permanently sealed and classified �top secret.� The effect of this
provision has been that US citizens are being charged with crimes in federal
court and not allowed to review the evidence against them, nor are their
attorneys permitted to see the warrants that authorized the search.
The FISA statute requires the Attorney General to submit a report each year
to the Administrative Office of the US Courts, the Speaker of the House of
Representatives and the President Pro Tempore of the Senate detailing the
number of applications from the FBI and NSA requesting surveillance/and or
physical searches, the number of orders approved and the number of
applications modified or denied by the FISC.<7> Table I displays the
number of orders approved by the FISC for each year since FISA was signed
into law. To date, the government enjoys a perfect record in regards to
application approvals, for no request has ever been rejected by the court.
Constitutional Concerns
The intent behind the passage of the FISA legislation was to impose limits
and a review process upon warrantless surveillance and searches conducted
for �national security� purposes in light of the numerous abuses by federal
agencies against US citizens. But the politicization and present use of the
FISA process has resulted in the erosion of numerous Constitutional rights
and basic legal procedures that have their roots in free societies dating
back to the Magna Carta.
Table I. FISA Surveillance and Physical Search Orders 1979-1997<8>
GO HERE FOR THE REST OF THE STORY:
http://fly.hiwaay.net/~pspoole/fiscshort.html
==============================================================================
Foreign Intelligence Surveillance Act (FISA)
Frequently Asked Questions (and Answers)
Prepared by Lee Tien, Electronic Frontier Foundation Senior Counsel,
1. What is FISA?
http://www.eff.org/Privacy/Surveillance/Terrorism_militias/fisa_faq.html
A "United States person" may not be determined to be an agent
of a foreign power "solely upon the basis of activities protected
by the first amendment to the Constitution of the United States."
50 U.S.C. � 1805(a)(3)(A).
U.S. SENATE INTELLIGENCE COMMITTEE:
http://intelligence.senate.gov/index.htm
Secret Courts - Secret Law
http://www.apfn.org/apfn/secretcourts.htm
SUPREME FRAUD: A PRODUCT OF TREASON
http://disc.server.com/Indices/149495.html
Without JUSTICE their is JUST_US!
http://www.apfn.org/old/apfncont.htm
~~~PLEASE FORWARD TO EVERY FREEDOM LOVING AMERICAN~~~
<A HREF="http://www.ctrl.org/";>www.ctrl.org</A>
DECLARATION & DISCLAIMER
==========
CTRL is a discussion & informational exchange list. Proselytizing propagandic
screeds are unwelcomed. Substance�not soap-boxing�please! These are
sordid matters and 'conspiracy theory'�with its many half-truths, mis-
directions and outright frauds�is used politically by different groups with
major and minor effects spread throughout the spectrum of time and thought.
That being said, CTRLgives no endorsement to the validity of posts, and
always suggests to readers; be wary of what you read. CTRL gives no
credence to Holocaust denial and nazi's need not apply.
Let us please be civil and as always, Caveat Lector.
========================================================================
Archives Available at:
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