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Foreign Intelligence Surveillance Act

With the general growth of interest in security after the terrorist attack on September 9, 2001, it is not surprising that the relation between the information and the methods to acquire them, along with the possible faults in the security system, has attracted considerable attention in recent years. However, after the alert condition has been decreased, more attention has been brought to the area of violations and abuses in regards to the foreign intelligence surveillance act by the president and the administration. In an attempt to distinguish the differences and conditions about the legality of the amendments made to the aforementioned act, and the various areas of misuse, studies have focused on different aspects of that matter, including judicial, historical, and justificative related to many consequent topics such from prisoner of wars treatment to privacy issues. While some articles have focused only on putting the blame on the current administration and their violation of the constitution, other works attempted to justify their actions outlining that the different approach to security might require sacrifice. Mainly, the studies focused on the defects of the current system and the violation of the fourth amendment, especially after publishing an article in New York Times, which made public the fact that the president authorized the National Security Agency to conduct warrantless domestic surveillance as a mean to fight terrorism.

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In criticizing the president and his administration, the articles use the main idea that he is abusing the power in a way that is threatening democracy. “A President cannot simply refuse to obey the law – not even when he invokes his powers as commander in chief – because the Constitution says clearly and explicitly that the President must take care that the laws are faithfully executed” (Holtzman 2008, p. 6) The abuse of the law was viewed as similar to Nixon’s where to the purpose of the national security, the law was violated. Concerning the program, the detail of which was published in the New York Times, the legality has been defended by projecting a “false choice” between total presidential discretion and ineffective national security, wrongly assuming that the constitution formulate these choices. This has been argued as being originated from problems in the administration’s reading of the constitution, where “the administration dramatically overreads the President’s discretion to act, in the name of national security, in contravention of specific statutory mandates”, overlooking the balance between the legislative and executive powers. Additionally, the administration misinterpret between the aforementioned balance and information control. (Kitrosser 2007, p. 3) The critique of the administration could be divided between the implementation of Terrorist Surveillance Program and its implicating the liberty interests and the the usage of the president’s authority to interpret the law in a way that violates the constitution. Regarding, the NSA program, an analysis has shown that it conflicts with acts of congress such as FISA, where the conflict is based on disputes between different branches of power – executive and legislative in particular. (Smith, 2007) “The majority of legal scholars commenting on the program found it either illegal, unconstitutional, or both. Despite all these hurdles, the federal courts and Congress never halted the program’s operation. (Anderson 2007, p. 18) Considering the interpretation, in another work, it is shown that the legitimacy is dependant on the constitutional authority that the president is using, not only the preferred constitutional interpretations such as the Bush administration practiced. “The harm to the rule of law that our Nation has endured during the Bush presidency has inspired desperately needed reexamination of fundamental questions of presidential authority, including the authority to interpret the Constitution.” (Johnsen, 2008, 2004) Among other deficiencies of the Bush administration, regarding FISA, which in the opinion of Elizabeth Holtzman is a solid ground for impeachment, in addition to not following the requirements of FISA in submitting wiretap applications to the court, he “flouted the precedent on illegal wiretapping established by the Nixon impeachment proceedings” and, “he defied a Supreme Court case that is directly on point about the powers of the commander in chief.” (Holtzman, 2008, p. 6).

In contrary, other scholars state to the actions of the government in general, as a temporary necessity, referring to the special needs exception to the Fourth Amendment’s warrant requirement in arguing that the program is constitutional, and describing the value of the knowledge obtained by such means as the reason why “the citizens of the United States have been forced to sacrifice some of the privacy that they enjoyed prior to the events of 9/11 and, for the most part, [*304]

these sacrifices have been accepted as the unavoidable reality of living in a post-9/11 America.” (Plummer 2006, 3) In arguing whether it is a necessity or not the American citizen cannot expect the same degree of privacy prior to 9/11 at the same time demanding protection and safety. Another opinion argues that seizing powers that had long been vested in the president by the constitution is among other consequences that led to the success of the attacks of 9/11. (Mitchell 2007) In regard to the aforementioned special needs exceptions to the Fourth amendment warrant an analysis proposed by Justin W. Whitney stating that special needs of law enforcement sometimes permit suspicionless exceptions to the Fourth Amendment, and that the FISA limitations were outdated, thus required another approach. “Although technology evolves daily, until recently, FISA has remained dormant and unchanged for nearly thirty years. While Congress works to amend the FISA framework, current and future administrations will undoubtedly continue to engage in electronic surveillance for the sake of national security.” (23) As a means of justifying the actions of the administration, the different conditions that the country goes through should also be considered, specifically “the Constitution as it works in peacetime, when Congress authorizes a policy and the President carries it out, and the Constitution during periods of authorized war”, where although the constitution prevails at both times, the power is allocated differently in the realms of domestic and foreign affairs (Turner, 2008).

Additionally, in regards to the detainees and the published information in the media about the violations of Geneva conventions it has been noted despite the existence of problems the case in general, the war on terrorism require a different approach, and as stated in “INSIDER’S LOOK AT THE WAR ON TERRORISM” written by John Yoo and reviewed by Robert Turner “Al Qaeda violates every rule and norm developed over the history of war. Flagrant breach by one side of a bargain generally releases the other side from the obligation to observe its end of the bargain” (Turner, 2008).

Another direction in the study is the neutrality, where the advantages and disadvantages of the presidential power in dealing with the act are mentioned along with providing recommendations on removing the brought controversy. “A good middle ground in this debate maybe just to continue business as usual. The Patriot Act was used to amend FISA to deal with specific issues regarding electronic eavesdropping. There is no compelling reason why we cannot continue on this course and make very specific amendments, as needed, to change with the times. (Burge 2007, p. 47) The amendments made by the congress to FISA to remove the controversy of the NSA validity and to allow more flexibility could be a good decision; however, the failure in delivering specific detail of the program was one the major disadvantages along with the removal of the requirement of a warrant prescribed originally in FISA. It is also outlines that the procedure itself was not an issue as stated in “A First Amendment Breach: The National Security Agency’s Electronic Surveillance Program” where “through the end of 2004, the FISC rejected only five applications while granting 18,781 warrants. Also, even if the government cannot obtain a warrant, there is an emergency procedure under FISA which authorizes the government to conduct surveillance without a court order (Thistle 2008, p. 6). The requirement of a warrant is a necessary check that will show who is the target of the surveillance and the reason why this target is a threat to national security. This opinion does not eliminate the need of a surveillance rather ensures that that there is a good reason for subjecting a person or a group to surveillance.

The studies also point out that controversy was also caused by misuse of the information gathered and originally intended in FISA. Where the primary purpose is understood which is gathering of foreign intelligence, including intelligence concerning international terrorism. However, the critique targets the fact that FISA “was later misconstrued by employees in the Justice Department, and later by the Foreign Intelligence Surveillance Court, to erect a so-called wall between intelligence and law enforcement officers that was not only not required by FISA but contrary to its purpose and history. (Funk 2007, 2) This was neither the case nor the subject of critique during the time of crisis, stated in another article, where during wartime where careful deliberation is unlikely to prevail. In particular, “President Bush’s approval ratings underwent a historic spike following the terrorist attacks of September 11, 2001, rising from about fifty percent between August 28 and 30 to about eighty percent between September 14 and 16. (FREEMAN 2007, 20)

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