Foreign Intelligence Surveillance Act (FISA)

The Foreign Intelligence Surveillance Act (FISA) was first enacted in 1978 (Public Law 95-511) and later amended by the Patriot Act.  It is at the center of the controversy concerning domestic spying by the NSA.  It was passed after revelations of massive domestic spying abuses by the FBI, CIA and NSA were documented in reports issued by the Church Committee in the 1970s.  In 1972, the United States Supreme Court had reviewed some of those abuses and declared that warrantless wiretaps of domestic groups for national security reasons were a violation of the Fourth Amendment.  United States v. United States District Court (Keith), 407 U.S. 297 (1972).

 

The FISA provided special procedures for conducting electronic surveillance of telephones, etc for foreign intelligence purposes including setting up a Foreign Intelligence Surveillance Court to authorize such surveillance.  50 U.S.C. 1801 et seq. available at http://caselaw.lp.findlaw.com/casecode/uscodes/50/chapters/36/toc.html.  The Act provides for surveillance of American citizens and others for whom the court determines that there is probable cause that they are “agents of a foreign power” as defined in the statute.

 

 

Legislative History

 

Congressional hearings were held to consider the bills:

 

·         Warrantless Wiretapping and Electronic Surveillance, J. Hearings Before the Subcomm. on Administrative Practice and Procedure and the Subcomm. on Constitutional Rights of the Senate Comm. on the Judiciary and the Subcomm. on Surveillance of the Senate Committee on Foreign Relations, 93rd Cong. part I & part II. (April 3, 8, 1974 & May 8, 9, 10, and 23, 1974).

·         Electronic Surveillance for National Security Purposes, Hearings Before the Subcomm. on Criminal Laws and Procedures and Constitutional Rights of the Committee on the Judiciary of the United States Senate, 93rd Cong. part I and part II, 2nd Sess. (October 1, 2 and 3, 1974).

·         Foreign Intelligence Surveillance Act of 1976,  Hearings on S. 743, S. 1888 and S. 3197 Before the Subcomm. on Criminal Laws and Procedures of the Senate Comm. on the Judiciary, 94th Cong. (March 29 & 30, 1976).

·         Foreign Intelligence Surveillance Act, Hearings before the Subcomm. on Courts, Civil Liberties, and the Administration of Justice of the House Comm. on the Judiciary, 94th Cong. (April 12, May 5, and June 2, 1976).

·         Electronic Surveillance Within the United States for Foreign Intelligence Purposes, Hearings on S. 3197 Before the Subcomm. on Intelligence and the Rights of Americans of the Senate Select Comm. on Intelligence, 94th Cong. (June 29, July 1, August 6, 10, & 24, 1976).

·         Foreign Intelligence Surveillance Act of 1977, Hearings on S. 1566 Before the Subcomm. on Criminal Laws and Procedures of the Senate Comm. on the Judiciary, 95th Cong. (June 13 and 14, 1977).

·         Foreign Intelligence Surveillance Act, Hearings on H.R. 5794, H.R. 9745, H.R. 7308 and H.R. 5632 Before the Subcomm. on Legislation of the House Permanent Select Comm. on Intelligence, 95th Cong. (January 10, 11, 17 and February 8, 1978).

·         Foreign Intelligence Surveillance Act, before the Subcomm. on Courts, Civil Liberties and the Administration of Justice of the House Comm. on the Judiciary House of Representatives, 95th Cong. (June 22, 28, and 29, 1978).

·         Foreign Intelligence Surveillance Act of 1978, before the Subcomm. on Intelligence and the Rights of Americans of the Senate Select Comm. on Intelligence, 95th Cong. (July 19, 21, 1977 & February 8, 24, 27, 1978).

 

Committee reports concerning the bills:

 

·         Senate Judiciary Committee Report, No. 94-1035 (July 15, 1976).

·         Senate Judiciary Comm. Report, No.  95-604, part I and part II, (Nov. 15, 22, 1977).

·         Senate Intelligence Committee Report, No.  95-701, (Mar. 14, 1978).

·         House Intelligence Comm. Report, No. 95-1283, part I and part II, (June 8, 1978).

·         Conference Report, No. 95-1720, (Oct. 5, 1978).

 

Presidential Signing Statement:

 

·         President Carter’s statement upon signing the FISA into law in 1978.

 

 

CNSS Reports during consideration of FISA:

 

·         Christine Marwick, “Warrantless National Security Wiretaps,” First Principles, (Vol. 1, No. 2, October 1975): 3-9, 11.

·         Morton H. Halperin, “Controlling the Intelligence Agencies,” First Principles, (Vol. 1, No. 2, October 1975): 15-16.

·         Morton H. Halperin, “Warrants for Wiretaps,” First Principles, (Vol. 1, No. 9, May 1976): 15-16.

·         Morton H. Halperin, “The Administration’s Wiretap Reform Bill – S. 1566,” First Principles, (Vol. 2, No. 10, June 1977): 6-10.

·         David Atkins, “Wiretap Legislation: Past and Present,” First Principles, (Vol. 3, No. 1, September 1977): 1-6.

·         Morton H. Halperin, “’My’ Wiretap Lawsuit,” First Principles, (Vol. 3, No. 1, September 1977): 15-16.

·         “National Security Wiretaps: Civil Liberties Affirmed by Appeals Court,” (Vol. 5, No.1, September 1979): 1-5.

 

 

FISA Applied to Secret Foreign Intelligence Physical Searches in 1994, (Counterintelligence and Security Enhancements Act of 1994, Public Law 103-359, Sec. 9)

 

In 1978, the Congress had refused to authorize secret warrantless searches of homes and offices.  After Attorney General Reno authorized a secret search of CIA spy Aldrich Ames’ home and his attorney challenged it, the Clinton administration asked Congress extend FISA to authorize secret physical searches of Americans' homes and offices. The civil liberties community objected that such secret searches are unconstitutional, but the Justice Department argued that it was better to have such searches authorized by the FISA court than carried out solely on the signature of the Attorney General as had occurred in the investigation of Aldrich Ames.

In the summer of 1994 the House Intelligence Committee held a hearing to consider the Administration's proposal to extend the FISA to include physical searches:

 

·         Senate Select Committee Report on The Counterintelligence and Security Enhancements Act of 1994, No. 103-296 June 30, 1994.

·         Testimony by Kate Martin, Director of CNSS, then a project of the ACLU, before the House Permanent Select Committee on Intelligence, July 14, 1994

·         Testimony by Jamie S. Gorelick, Deputy Attorney General, before the House Permanent Select Committee on Intelligence, July 14, 1994

·         Testimony by Kenneth C. Bass, III, before the House Permanent Select Committee on Intelligence, July 14, 1994

·         CNSS/ACLU's memo about the proposed warrantless national security searches under FISA, August 9, 1994

 

During late summer 1994, Congressman Don Edwards opposed extending the FISA to authorize secret searches and Attorney General Janet Reno responded.

 

·         Letter from Congressman Don Edwards opposing the proposed FISA amendment, August 18, 1994

·         Letter from Attorney General Janet Reno to Congressman Edwards, September 12, 1994

 

After Congress amended the FISA to authorize secret physical searches, the Supreme Court ruled in a different context that the Constitution requires the government to give individuals notice that their homes have been searched, as the civil liberties community had argued that it did.  Squillacote v. United States, 532 U.S. 971 (2001).

 

The Supreme Court has not yet ruled whether this notice requirement means that secret searches under the FISA are unconstitutional. See, Center for National Security Studies, Amicus Brief in US v. Squillacote, March 20, 1998.

 

 

Other Amendments to FISA

 

In 1999, the FISA was again amended to provide for Fisa court orders for pen registers, trap and trace devices, and certain business records of suspected agents of a foreign power. Intelligence Authorization Act for Fiscal Year 1999, Sections 601 and 602, Public Law 105-272.

 

In 2000, Congress expanded the definition of "agent of a foreign power" to include people working for a foreign government who intentionally enter the United States with a fake ID or who obtain a fake ID while inside the US. Intelligence Authorization Act for Fiscal Year 2000, Section 601, Public Law 106-120.

 

In 2001, the FISA was amended to clarify which federal officials could authorize applications to the FISC for electronic surveillance and physical searches. Intelligence Authorization for Fiscal Year 2001, Sections 602 and 603, Public Law 106-567.

 

In 2001, the Patriot Act made extensive changes to the FISA, broadening the circumstances when the secret FISA authorities could be used and eliminating some of the safeguards against abuse.  More information on the Patriot Act changes.  Many of these provisions are sunsetted as of February 3, 2006.  For more information visit http://www.cdt.org/security/.

 

In 2002, the FISA was amended to permit the Attorney General to wait 72 hours – rather than 24 hours – before seeking a court order after authorizing electronic surveillance in emergency situations.  Intelligence Authorization Act for Fiscal Year 2002, Section 314, Public Law 107–108.

 

In 2004, Congress amended the definition of who could be targeted under FISA to eliminate the requirement that non US persons be acting on behalf of a foreign power in order to be targeted.  Intelligence Reform and Terrorism Prevention Act of 2004, Section 6001, Public Law 108-458.  This provision is sunsetted as of February 3, 2006.  For more information visit http://www.cdt.org/security.

 

 

Foreign Intelligence Surveillance Court Rulings Since the Patriot Act

 

In May 2002, the Foreign Intelligence Surveillance Court (FISC) issued an opinion concerning the Department of Justice's FISA procedures.

 

·         Foreign Intelligence Surveillance Court Opinion and Order, May 17, 2002. The decision was made public in the fall of 2002 after various Senators requested information about FISA court procedures.

·         Letter to Judge Colleen Kollar-Kotelly from Senators Leahy and Specter regarding oversight of FISC procedures, July 16, 2002.

·         Response to Senators Leahy and Specter from Judge Kollar-Kotelly, July 24, 2002 including the rules for the FISA court.

·         Letter to the FISC from Senators Leahy, Grassley, and Specter, July 31, 2002.

·         Letter from Judge Kollar-Kotelly, August 20, 2002.

 

The Department of Justice appealed the FISC decision to the Foreign Intelligence Surveillance Court of Review, which issued a public opinion in November, 2002.

 

·         Principal Brief by the Justice Department, August 21, 2002. 

·         Amicus Brief submitted to the FISA Court of Review, filed by CNSS and others in support of the FISC Opinion, September 19, 2002.

·         Supplemental Brief by the Justice Department, September 25, 2002.

·        FISA Court of Review Decision, overturning the lower court decision, November 18, 2002.

 

 

FISA and CNSS Work in 2008

 

On November 15, 2007, the House passed H.R. 3773 or the RESTORE Act, which the Center supported in its statement, “The RESTORE Act is an Important but First Step toward Stopping Unconstitutional Surveillance.”  For further analysis, see Lisa Graves’ guest blog about the RESTORE Act on the American Constitution Society For Law and Policy Blog.

 

On February 12, 2008 the Senate passed the FISA Amendments Act of 2007, S. 2248, as reported by the Senate Select Committee on Intelligence (SSCI).  In the process, they rejected several amendments that would have added more civil liberties protections to the bill, including the Feingold-Webb-Tester amendment, which was supported by the Center in a letter written to the Senate in January.  The Center and a coalition of other civil liberties organizations also sent a letter to the Senate in December of 2007 opposing the SSCI bill because it “unreasonably and unnecessarily authorizes broad surveillance of Americans’ international communications without meaningful Fourth Amendment protections.”  For further explanation of the Center’s opposition to the Intelligence Committee bill please read our memorandum to interested persons (December 6, 2007) and a previous letter sent to Chairman Leahy and Senator Specter of the Senate Judiciary Committee (November 14, 2007).

 

On March 14, 2008, the House passed a new bill that incorporates parts from both the Senate’s FISA Amendments Act of 2007 (S. 2248) and the House’s RESTORE Act (H.R. 3773).  To read why the Center believes the new bill was better than both the Protect American Act and the bill passed by the Senate in February, but still deeply flawed from a civil liberties perspective, please see our March 12th letter to Chairmen Conyers and Reyes.

 

In a June 9th letter to members of Congress, the Center opposed Senator Bond’s new FISA legislation, which was touted as a “compromise” between the previously passed House (H.R. 3773 substitute) and Senate (S. 2248) versions.

 

On June 19, 2008, the FISA Amendments Act of 2008 was introduced by Representative Reyes and was passed the next day in the House. The Center strongly opposed this legislation, as voiced in our July 9th statement on the passage of the FISA Amendments Act and our June 25th memorandum to Senators, urging them to vote “no” on H.R. 6304.  This legislation was passed in the Senate on July 9th and signed into law.

 

For CNSS’ full analysis and information on the status of requested documents about surveillance of Americans, please read our summary of grave concerns about the Protect America Act, and our September 2007 testimony, “The Foreign Intelligence Surveillance Act and Effectively Protecting the Liberty and Security of Americans”, before the House Permanent Select Committee on Intelligence.