foreign intelligence surveillance act and congress and 1978 and wiretaps

After refusing to comment for a few weeks on a National Security Agency domestic spying program, in place since October 2001, President Bush admitted just before Christmas 2005 of the existence of the program, but claimed that it was necessary in order to save lives in the war against terrorism. In fact, the existence of this program was concealed not only from the American people but also from the judges on the "FISC" (the Foreign Intelligence Surveillance Court), the ones charged by statute (18 USC sec. 1801 et seq.) with the authority to authorize wiretaps and searches of suspected agents of foreign powers (whether or not US citizens) without a showing of probable cause to a Federal Magistrate or Federal Judge.* This essay takes the occasion of the testimony of five FISC judges before the

[*Federal Rule of Criminal Procedure 41 requires a showing of probable cause before a Federal Magistrate that a federal crime has been or is being committed in order for a criminal search warrant to issue; 18 USC sec. 2518 requires a probable cause showing before a Federal District Judge that certain federal crimes hav been or are being committed in order for a criminal wiretap order to issue.]

Senate Jucidiary Committee on March 28 to comment on the Foreign Intelligence Surveillance Act and the requirements of that Act in order for the Administration to get surveillance authority.

Personal Background

My experience with this subject arises out of a program I planned for the United States District Court of Oregon Historical Society late in 2003. At that program we had not only Judge Harold Baker, who testified before the Judiciary Committee yesterday, but also Judge Edward Leavy, one of the three judges on the FISA Court of Review (to which appeals of FISA rulings may go). A surprise appearance came from Mr. Jim Baker, who heads the US Department of Justice's office which prepares the FISA orders for approval by the judges. Little did I know at the time (and maybe none of us on the program knew) that the issue of domestic spying was an important issue in the bowels of the National Secruity Administration. We all assumed that day (government lawyers, judges, defense lawyers) that if you wanted to wiretap or search people in this country, you had to follow the law in doing so (As mentioned above, the FISA law is in 18 USC 1801 et seq.). The controversy was whether the secrecy envisaged by the Act violated civil liberties. No one was imagining the existence of a domestic spying program that was an end run around the FISA. Well, we had a packed house and a riveting program.

The FISA Statute

Readers should know that the FISA statute, under which a representative of the US Department of Justice may go ex parte and in secret to a judge on the FISC to authorize a wiretap or search, was passed in 1978. The historical context for the Act was the spying done by Richard Nixon on Viet Nam war protestors during his administration (1969-74) and the voluminous files kept on many Americans by J. Edgar Hoover's FBI. The FISA was a compromise effort passed with bi-partisan support to enable secret surveillance to happen in America but only if the Administration followed certain rigid procedures detailed in the statute. I want to go through some of those procedures in order to show how seriously the 1978 Congress took the issue of spying on people in the United States. That is, my thesis is that Congress was very wary of granting the power to the Adminstration to do clandestine wiretaps, but it realized that some clandestine surveillance is necessary in our dangerous world. Thus, the Act allowed secrecy, but required that the Adminstration convince a federal judge (with many years of experience in issuing warrants) before the Administration could spy on people. Checks and balances were in place. Congress passed the law. The Administration could surveil. The Judiciary would approve the wiretaps/searches.

Let me give you some of the operative language of the statute just to show you how many safeguards of civil liberties are built in to the statute.

Section 1804 (one of the biggies) says that each application for an order for electronic surveillance must be made by a Federal officer in writing upon oath or affirmation. This application to a FISA judge must include the identify of the Federal officer; the approval of the Attorney General; the identity of the target of the surveillance (i.e., no "fishing expeditions" permitted); a statement of the facts and circumstances relied upon to justify the belief that the target is a "foreign power" or "agent of a foreign power" (defined extensively in sec. 1801); a statement of proposed minimization procedures (I will return to that in a second); a detailed description of the nature of the information sought and the type of communications or activities subjected to surveillance; and a bunch of more certifications by high-ranking Administration officials that this information cannot be attained from other sources, etc.

Minimization Procedures

Important in the application, as we have seen, is a statement of the "proposed minimization procedures." That phrase is defined in sec. 1801(h). In a nutshell, minimization procedures are things "reasonably designed in light of the purpose and technique of the particular surveillance, to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the US to obtain, produce, and disseminate foreign intelligence information," 1801(h)(1)). In other words, the Congress was trying to emphasize that this specially and secretly-collected information needed to be handled very carefully, not circulated to any but appropriate authorities and not retained beyond the needed time. Of course, none of these things could be precisely defined in the statute, but we get the "spirit" of the Act from this passage.

Conclusion

If, after the submission of the application, the judge was convinced that there was probable cause that an agent of a foreign power was dealing in foreign intelligence information, s/he could order the surveillance for a period of 90 days (renewable). That, in its essence, is the FISA.

The next essay discusses the Administration's action in light of the FISA law.

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