Out of Watergate Comes FISA- Part 1

(AP Photo/Charles Tasnadi, File)

In 1975, the Senate formed the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, or as it came to be known, the Church Committee after its chairman, Senator Frank Church (D-ID).  The Committee documented the many abuses of the FBI, CIA, and IRS in collecting information on American citizens and using it for political purposes.  Although not unique to the abuses of the Nixon Administration, the report also delved into foreign political assassinations and other covert operations.

In 1977, Senator Edward Kennedy (D-MA) introduced the Foreign Intelligence Surveillance Act in the Senate.  The original bill had nine, bipartisan co-sponsors.  However, the law was largely crafted behind closed doors in secret in negotiations between particular Senators and officials from the Department of Justice.  A final version was drafted and the Senate approved the law and President Carter signed it on October 28, 1978.

The new law intended to provide judicial and Congressional oversight of covert intelligence activities of foreign entities and individuals in the United States.  This was balanced against the need for secrecy in the name of national security.  Most importantly, FISA created a special court- the Foreign Intelligence Surveillance Court (FISC)- to issue warrants to law enforcement for electronic surveillance without tipping off potential targets of those warrant requests.  Equally important, the new court was to provide a buffer against law enforcement violating the Constitutional rights of the targets.  Because surveillance is often opportunistic, it is permitted in the national security context for up to 48 hours without a warrant before an application is made to the FISC.

Before an application is made, one of two requirements must be met.  Either the government must be reasonably sure the target is involved in the commission of a crime, or the target must be overseas.  This means that American citizens can be targets domestically if the first part is met, or American citizens are fair game if they are operating overseas.  Traditionally, it is the Department of Justice (DOJ) that seeks these warrants through the FBI and it is the FBI that conducts the actual electronic surveillance.  The National Security Agency (NSA) can conduct electronic surveillance in the United States, but traditionally that was limited to foreign embassies, consulates, missions and international organizations like the UN, although they still need a FISA warrant to do so.  Purely domestic communications also can be monitored by the NSA with a FISA warrant.

The standard of proof required to obtain a FISA warrant is notoriously lower than obtaining a criminal warrant from a judge.  Under the law, the FBI or NSA only have to show “probable cause” that the target is a foreign agent.  Further, a carve out in the law allows the President to authorize surveillance without a warrant for up to one year given the following criteria:

  1. It is only to acquire foreign intelligence information;
  2. it is solely directed at communications or property controlled exclusively by foreign powers;
  3. that there is no substantial likelihood that it will acquire the contents of any communication to which a United States person is a party, and;
  4. it be conducted only in accordance with defined minimization procedures.

The law defines “foreign intelligence information” to mean any information necessary to defend the United States from imminent attack, sabotage, or terrorist activity.  As for minimization procedures, any communications intercepted can be held for only 72 hours.  However, they can be held longer with a court order, or without an order if there is clear evidence of a crime.  Further, the identity of US citizens must be protected in a practice called “masking.”  A US citizen can be “unmasked” if it is necessary to make the intelligence gathered understandable, or if there is clear evidence of a crime.  The identification of a United States citizen is usually masked if it is mentioned in the course of communication between two foreign nationals.

The Attorney General of the United States must certify with FISC that these conditions are being met.  They must report to Congressional leaders that they are in compliance with the FISA procedures.  Depending on the type of surveillance, a warrant can be issued or extended for 90 or 120 days, or a year.  Generally, if the warrant targets a US citizen, it is good for 90 days after which it must be reauthorized, and 120 days if a foreign national.

Records show that over the course of FISA, about 96% of all applications for a warrant are granted by FISC.  The FISC is composed of judges chosen by the Chief Justice of the United States Supreme Court to serve for a seven-year term.  They meet either at the Justice Department headquarters in Washington, DC, or at a federal courthouse.  One audit of applications shows that the number has grown exponentially since 1979, its first year of implementation.  For example, in 1980 there were 322 approved applications, but that number rose to 2,224 by 2006.  From 1979 to 2006, there were 22,990 applications.  In that time period, the FISC approved 22,985 warrants and disapproved only five applications.  

Things changed for FISA in the aftermath of the terrorist attacks on September 11, 2001.  Although the attacks are often the focal point for criticism by civil libertarians about FISA abuse and warrantless searches by the NSA, the problem was not unique to the Bush administration and likely started earlier.  Starting from at least August 2000- thirteen months before 9/11- based on Freedom of Information Act requests by the American Civil Liberties Union and the Electronic Frontier Foundation- it was revealed that AT&T, Qwest, and Verizon had all sent data crossing their network to the NSA and CIA.  Further, AT&T whistleblower, Mark Klein, testified before Congress that he personally installed a secret system inside of AT&T headquarters in San Francisco that copied every byte of information crossing their network and sent that information to the NSA which operates out of Fort Meade, Maryland.