The topic that I am researching is the Foreign Intelligence Surveillance Act (FISA). In what follows is a literature review on the topic. I specifically analyze articles that investigate the question of whether the Bush administration has committed abuses with regards to the FISA or not. The hypothesis that I start off with is that George W. Bush’s administration has infringed the spirit and also the provisions of the Foreign Surveillance Act.
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On the Background of the Foreign Surveillance Act
The Foreign Surveillance Act was passed in 1978 upon the discovery by the Select Committee that the Bush administration has ordered the NSA and other agencies to conduct warrantless surveillance (Paul T. Jaege and al, 2003). The Committee had “to Study Governmental Operations with Respect to Intelligence Activities, known as the “Church Committee” after its chairman Frank Church; [it has] conducted a wide-ranging investigation of the intelligence agencies in the post-Watergate period” (AARC, 1984).
The Church Committee has issued reports which prove that various government security agencies, namely the FBI, the CIA, and the NSA, have been involved in warrantless wiretaps. Furthermore, the Supreme Court had examined some of the abuses, which it found against the Fourth Amendment to the Constitution, viz. “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized” (Cornell University Legal Institute, 2008).
The Supreme Court ruled over such cases as the Katz v. the United States (389 U.S. 347), in 1967, stating that warrantless electronic surveillance is a violation of the Fourth Amendment to the constitution (Michigan Law Review, 1980, p6). This particular ruling represents a turning point as it is the first to incriminate wiretapping and electronic surveillance without a warrant.
Hence, it appears that the wisdom behind the enactment of FISA is to avoid abuse of powers to intercept the conversations of a given person or group of people. At the heart of the FISA lies the concern about individual rights, especially, insofar as privacy and freedom are concerned. The Act has been adopted not from the void but because there have been precedents of violations of these two principles.
The FISA has in fact come back to the foreground now that security and terrorism have yielded such laws as the Patriot Act Law. It is important to see whether, under the ascendency of security issues, notably under George W. Bush administration, the FISA has been violated or not.
The dialectic of Security and FISA stipulations Under George W. Bush administration
The post-9/11 period has witnessed the securitization of politics in the US, under George Walker Bush’s administration. The securitization trend is evident through the tightening of surveillance against individuals, oftentimes without a warrant, as a counter-terrorism measure. This trend has been captured with concern by the media as well as academe. The post 9/11 period, in general, has made the issue of compatibility of surveillance measures and democratic practice or legality particularly topical (Gill, 2003; Abrams, 2006).
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Some politicians find in the warrantless surveillance no incompatibility with law, advancing the argument that the Bush, by virtue of being the Head of the Executive, has “inherent authority” that makes Bush’s orders legitimate. Hence, some advanced this argument in favor of Bush’s action, holding that “Congress can’t usurp the president’s power to spy on America’s enemies” (Turner, 2005).
There has been also rationalization of the virtues of amending FSI. The justification- echoing the official discourse- is mainly that wiretapping and eavesdropping are useful in intercepting terrorists and that some “leeway” should be offered to surveillance agents until the threat subsides (Jonas, 2005). In an article that argues for the virtues of such “spying”, the argument is supported by putting forth an actual alleged terrorist named Khalid Almihdar who turned out to be involved in the Pentagon hijacking but was in fact suspected as early as 1999 by the NSA. According to the article, not putting Almihdar on phone surveillance is an instance of missed clue and the hijacking could have been avoided (Zuckerman, 2006).
The debate has not only been animated by supporters of Bush’s actions. Indeed, many activists questioned the adequacy of Bush’s orders. In fact, the supporters of the surveillance measures installed by Bush mostly spoke in response to the critiques, rather than in a spontaneous comment on the issue. This started to be more prominently discussed with respect to the FISA as Bush overtly demanded from Congress to amend the Act, in a way to make wiretapping and eavesdropping without warrant legal. At beginning of July 2007, the incumbent president sought the approval of Congress to amend the FISA. His administration asked for further powers to be allotted to gather surveillance intelligence, upon which the 110 Congress has been prompted to work on amendments (Bazan, 2008; Bazan and Elsea, 2006).
On the one hand, the president’s securitizing discourse has been echoed in all the supporters of an amendment of the FISA well before Bush approached Congress. K.A. Taipale argued in articles in Washington Times that the FISA was no longer appropriate because it “didn’t anticipate the development of global communication networks or advanced technical methods for intelligence gathering (Taipale, 2006). Underlying this argument is a sense of urgency and that concerned security agents should be able to use technology without going to any sort of bureaucracy in order to swiftly intercept suspects.
The amendment was approved and a bill was passed on August 3rd, 2006. On the 5th of August, the Protect of America Act was signed by the president, stipulating that no court order is required to conduct surveillance on foreign intelligence targets, as the White House Facts Sheet on the Act underlines (ACLU).
The debate went on, as the amendment was enforced and made permanent in September 2007. Men of law as well as activists concerned about liberties criticized the Protect of America Act. Some legal experts argued that the Act may give far more power to surveillance agents than what is expected “electronic surveillance” is a vague term, so goes the argument; “the Foreign Intelligence Surveillance Act of 1978 required laws to amend FISA or repeal its “exclusive means” provision before they could authorize warrantless electronic surveillance. But efforts to legislate clear-statement regimes in national-security law have failed to induce compliance” (Mitchell, 2008).
There have been also activists who have rejected the amendments to FISA. Such trend is mostly tracked through the various internet blogs that reject Protect America Act. In academe, however, it is not the amendments that were rejected as much as there has been a call for some measures to supervise the widening of powers within the hands of surveillance agencies as “there appear to be inadequate checks and balances on the implementation and use of the various provisions in the FISA, and to some degree, Congress has been unwilling or unable to exercise such controls over the Department of Justice” (Jaeger, 2003, p16).
Many activists and scholars argue that the amendments affect negatively civil rights. The Protect America act subscribes to a number of moves on the part of security-related organs to enjoy more power. On the other hand, the growth of their power is not necessarily commensurate with civil rights. The main concern within academe is, indeed, the issue of individual privacy or the privacy paradigm (Bloss, 2008). There is concern about the fact that the increase of the powers within police and surveillance authorities may be detrimental to individual rights, that “increasing police surveillance has diminished individual privacy protections and impacted aspects of civil life” (Bloss, 2007). In this respect, the Fourth Amendment, which spells out privacy principles, is often brought up in so far as “It is difficult to see how the Fourth Amendment, in its current condition, limits the authority of the executive branch or offers any protection to the People to keep the government from intruding into their lives, homes, papers, and effects” (Casey, 2008). Some would go as far as equating the war on terror, on the basis of which Bush has overrun FISA provisions and later on asked that the act be modified, to war on civil liberties (Chang, 2003).
The controversy about FISA and later the Protect America Act can be summed up as follows. Indeed, the orders that Bush gave to intelligence agents upon the 9/11 attacks were not technically infringing the law because he is the head of state and chief executive. By virtue of the law, he does not need to request a warrant.
However, once we move beyond this prerogative to the spirit of the FISA law, there is infringement in the stipulations of the FISA provisions which are mainly directed to protect the privacy of individuals from the abuse of some executive agents or organs. The controversy that emerged, upon the unveiling of Bush’s administration’s resort to wiretapping and eavesdropping, captures how media and politicians have been worried about Bush’s administration practices.
Bush changed then the strategy, so instead of pursuing his invasive surveillance policy in an underground manner, he changed the situation by asking Congress overtly to amend FISA. He manages indeed to amend and the Protect America Act emerges. In both ways, before the adoption of the Act and after, the FISA was being manipulated by Bush’s administration to suit their vision of imminent terrorist threat.
As much as there was skepticism among observers upon the discovery of Bush’s controversial surveillance methods initially, the trend somehow altered. The argument of the necessity to modernize the FISA is being circulated. Resistance to the act is mainly seen in internet blogs, on the part of activists, however, there seems that there are not many academicians –or at least hard to encounter- in this direction.
Assassination Archives and Research Center. Web.
David Jonas (2005). “The Foreign Intelligence Surveillance Act Through The Lens of The 9/11 Commission Report”, North Carolina Central Law Journal.
Elizabeth Bazan & Jennifer K. Elsea (2006). “Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence”, In National Security Issues. New York: Nova Science Publishers.
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Elizabeth Bazan (2008). “The Foreign Intelligence Surveillance Act: A Brief Overview of Selected Issues “, Library of Congress, Congressional research service.
Foreign Intelligence Surveillance Act: Legislating a Judicial Role in National Security Surveillance (1980). Michigan Law Review, Vol. 78, No. 7, pp. 1116-1152. Michigan: Michigan Law Review Association.
Jonathan F. Mitchell (2008). “Legislating Clear-Statement Regimes in National-Security Law”, University of Chicago, George Mason Law & Economics Research Paper No. 08-56.
K.A. Taipale (2006). “Fixing surveillance”, The Center for Advanced Studies and Technology Policy, Selected Opinion/ Commentary.
Law Information Institute. Bill of Rights. Web.
Mortimer B. Zuckerman (2006). U.S. News & World Report, Vol. 140 Issue 7.
Nancy Chang (2003). “How Democracy Dies: The War on Civil Liberties”, In Lost Liberties: Aschcroft and the Assault on Personal Freedom”. New York: The New York Press.
National securityAmerican Civil Liberties Union. ACLU Fact Sheet on the “Police America Act”. Web.
Norman Abrams (2006). “Developments in US Anti-terrorism Law”, Journal of International Criminal Justice, Vol.4, N°5, pp. 1117-1136.
Official Website of Justice Department. Why FISA Modernization Amendments Must Be Made Permanent. Web.
Peter Gill (2003). “Democratic and Parliamentary Accountability of Intelligence Services after September 11”, Centre for the Democratic Control of Armed Forces.
Paul T. Jaeger and al. “The impact of the USA Patriot Act on collection andn analysis of personal information under the Foreign Intelligence Surveillance Act”, Government Information Quarterly, N° 20 (2003), pp 295–314.
Timothy Casey (2008). “Electronic Surveillance and the Right to Be Secure”, UC Davis Law Review, Vol. 41, No. 3.
White House (2007). Fact Sheet: The Protect America Act of 2007. Web.
William Bloss (2007). “Escalating US Police Surveillance after 9/11: an Examination of Causes and Effects”, In Surveillance and Criminal Justice Part 1, 4(3): 208-228, Surveillance and Society.
Transforming US police surveillance in a new privacy paradigm, Police Practice and Research An International Journal, Routledge. (2008).