United States of America is a state which is known to have the strongest power among any country in the world. The United States (US) has the capacity to do anything and everything they could due to the power and leadership they have attained in the international community. Due to this, the US has various forms of agencies in order to protect and secure the nation and territories it has. One of those agencies created was the Federal Bureau of Investigation of the FBI which is responsible for cases that could affect the security of the United States and other countries concerned on issues being resolved. Under the FBI the US have created a court that would be responsible in investigating cases of suspected unknown intelligence agents who had committed unjustifiable actions against the nation. These foreign intelligence agents would be investigated by the trusted agency of the US government—the FBI in order to analyze the crime which had been done. Due to such situations, the United States had to create a court that will be fully responsible in doing such investigations.
The Foreign Intelligence Surveillance Act (FISA):
Before the Foreign Intelligence Surveillance Act was created, there had been an issue which had rose up to the attention of the media and the whole United States. The act was first taken into the attention of many after the Water Gate Scandal had been publicized (American Civil Liberties Union, 2009). During the time of President Richard Nixon, he spied on various activists and political groups. Due to this, two political characters had responded with the unjustifiable actions of the former President Richard Nixon. Frank Church and Sam Ervin have separately concluded that such actions created were seen as an act of prejudice against various groups based on the Fourth Amendment of the United States Constitution. Therefore, the Foreign Intelligent Surveillance Act was created in order to have control over the surveillance activities of the government. The creation of such act was specifically made to oversee the scrutiny of activities done by individuals and foreign entities in the US while still maintaining the confidentiality which is considered necessary for the protection of the national security of the state. (Electronic Privacy Information Center, 2009)
In the year 1978, the Congress of the United States had passed the Foreign Surveillance Act for the establishment of a different legal agency which is directly addressing the issues with foreign intelligence surveillance. One very specific issue is title III or the Wiretap Statute. Title III specifically delineates the specific guidelines regarding the regulation of average surveillance of the law enforcement. On the other hand the FISA’s only duty is to regulate compilation of the government’s foreign intelligence information which would further support the counterintelligence actions of the U.S. Previously, FISA was only restricted to electronic wiretapping and eavesdropping. Finally in the year 1994, the FISA was approved to “permit physical entities in connection with ‘security’ investigations” (EPIC, 2009). In 1998 another amendment was added to the limitations of FISA which is the permission to pen/trap commands. In addition, the FISA have strong amendments with regards to attaining business records which could be evidence to any case being investigated by the court.
Within the category of the Fourth Amendment, there is a necessity to have a search warrant which will be the proof that the crime that was committed was based on feasible causes. Although such ruling is in the Fourth Amendment this is not applicable to the FISA, instead it stated that, “surveillance under FISA is permitted based on a finding of probable cause that the surveillance target is a foreign power or an agent of a foreign power, irrespective of whether the target is suspected of engaging in criminal activity (EPIC, 2009). On the other hand, if the crime is said to be committed by a US person or an individual who has a citizenship of the United States, there is necessity to present a proof that illustrate probable cause.
Minimization Process within the FISA
The surveillance power and purposes of the FISA is only known to be for intelligence purposes only however, there are courts which allow the obtained data from the investigation of the said agency. Nevertheless the FISA’s requirement of minimization authorizes such procedures to be executed various processes to decrease the retention, dissemination and collection of information regarding U.S. persons. The main purpose of the minimization requirement is to prevent the extensive power of “foreign intelligence gathering” which then could be utilized during criminal investigations. However, there are times that overlapping over the criminal investigations as well as the foreign intelligence gathering. Though there is overlapping of investigations, conflicts over the duties of different agencies are not to be confused. It is stated that there is one process of minimization which is called the “information-screening wall.” Within such process, the “walls” are requiring to engage a non-involved officer in the criminal investigation in order for the materials collected by the FISA surveillance to review.
Foreign Intelligence Information (FII):
Due to the reason that FISA is a special agency that specializes in the cases of surveillance and intelligence acts, it also has its own process of attaining information. The FISA has a Foreign Intelligence Information (FII) which is a branch of the offices this special agency have. The information that is attained by FISA surveillance becomes an instrument for the US to have the capacity and ability to immediately act against the possible attacks of a foreign country or entity or any representative of the foreign power that could sabotage the peace and security of state. The attempt or the terrorism which is created by the foreign entity or agent and concealed intelligence activities by the any foreign entities is considered a threat and a hostile act against the U.S. The duties of the FII and the information it gathers are for the purposes which identifies to such subjects: national security, national defense as well as conduct or foreign affairs expressed by the US.
Foreign Intelligence Surveillance Court:
The FISA is known to be a special agency which is only for the purpose of intelligence surveillance in the U.S. For the reason that the FISA is only for special cases, the act is also authorized to have its own courts that will be responsible in assessing and analyzing the cases under the specification of the FISA. The Foreign Intelligence Surveillance Court (FISC) is known to be composed of seven (7) various “federal district court judges appointed by the Chief Justice for staggered terms and from different circuits” (EPIC, 2009). The individually appointed judges of the FISC examine the Attorney General’s applications that authorize the electronic surveillances which are aimed after attaining the FII. The FISC is only required to meet twice within a month. In addition, “The proceedings are not adversarial: they are based entirely on the DOJ’s presentations through its Office of Intelligence Policy and Review” (EPIC, 2009).
Under the ruling of the FISA, it is the duty for the Justice Department to review the applications which are for the counterintelligence warrants made by different agencies prior to the submission to the FISC. It is the responsibility of the Attorney General to approve each of the last FISA application in order to have a proper analysis and justification of the applications. The application is obliged to contain such things:
· a statement of reasons to believe that the target of the surveillance is a foreign power or agent of a foreign power;
· a certification from a high-ranking executive branch official stating that the information sought is deemed to be foreign intelligence information, and that the information sought cannot reasonably be obtained by normal investigative techniques;
· statements regarding all previous applications involving the target;
· detailed description of the nature of the information sought and of the type of communication or activities to be subject to the surveillance;
· the length of time surveillance is required;
· whether physical entry into a premises is necessary, and
· proposed procedures to minimize the acquisition, use, and retention of information concerning non-consenting U.S. persons. (EPIC, 2009)
For the U.S. individuals the judges in the FICS must be able to uncover various probable causes that one of the four conditions is met. The four conditions are:
(1) The target knowingly engages in clandestine intelligence activities on behalf of a foreign power which “may involve” a criminal law violation;
(2) The target knowingly engages in other secret intelligence activities on behalf of a foreign power under the direction of an intelligence network and his activities involve or are about to involve criminal violations;
(3) The target knowingly engages in sabotage or international terrorism or is preparing for such activities; or
(4) The target knowingly aids or abets another who acts in one of the above ways. (EPIC, 2009)
With an immediate order which is approved by the FISC, there could be an electronic surveillance of agents coming from other foreign entities. The surveillance could be from ninety (90) days up to a year in order to make proper justifications regarding the investigations. If the needed time is not enough for the investigation and surveillance to be done, a request for extension could be done. Such requests are similar to the process of requesting of other requirements.
Due to the secrecy of the files attained by the FII, files and cases are perfectly sealed. Each of the files could not be revealed to people even to those people who are executed through the proceedings of the FISC. There are district judges who have a limited degree of ability to see the evidences obtained by the FISA. In addition to the facts given, the FISA does not have any provision regarding returns of executed warrants. The certification that the surveillance had already been conducted based on the warrant and the requirements in the minimization or the items which are stated in the FISA warrant. (EPIC, 2009).
FISC: The court of Review
In the process of FISA, there could always be different decision to be made. One of those is the Foreign Intelligence Surveillance Court of Review. Such agency is responsible for reviewing cases regarding the surveillances that the FISC had done. Although there is a court of review, there had not been any reviews done since June 2002. The appeals regarding expected unrighteous action of the FISC or other agencies under is had not been heard. However on September 2002, a unilateral appeal which came from the Department of Justice was done. The appeal was regarding a ruling regarding USA-Patriot Act. (EPIC, 2009)
In addition, the court of review’s only directive is to rule over the Court of Review which is evidently addressed in the FISA. In the FISA, it is stated that the reviews done by the courts of the FISC should be done in confidentiality due to the importance of every issue being discussed. Through the ruling of the FISA, the FISC should be able to handle all the concerns of the agency with regards to keeping the security of the nation as well as the maintenance of the global aspiration of having peace among every nation. (EPIC, 2009)
In the end, the FISA is an act made only for the purpose of investigating and protecting individuals who are in attempt to remove the protection of US from all the negative entities. Although there are many possible entities that desire to ruin the power of the US, the agency of under the act is promoting a defense regarding foreign and local intelligence individuals that would want to hinder development and progress for the hegemonic state in the world.
Through the FISA, the power of the government to see the possible threat against its people and territory is easily tracked without having to create violence. In addition, the FISA had been a widely supported act that it was created not only as an act but a whole body that could prevent intruders from entering and eliminating the protection the US. The readers should be reminded that there is a FISC that is responsible for overseeing the cases which are in the surveillance and intelligence topic. Through the power of seven judges who are personally addressing the cases, the crimes being committed is properly justified in front of the court.
Although the FISC is a court, it is very different from the courts which handle regular cases. The FISC is true to its written rulings that it must only discuss the issues regarding surveillance or foreign entities which is or could post threat to the US or its allies. Through the FISC all the information are trusted to be in secrecy—which then makes the cases more special and sensitive. As a justification of such situation, the FII is a branch of the FISA which is mostly trusted by not only by the FISC but also by other courts in the US.
Although FISA is an act only meant for intelligence and surveillance acts, it does it responsibility to focus on the possible threats from foreign entities. It is known that the US is a powerful country due to this; there are individuals and groups which are very willing to do anything just to ruin such strength. Through the FISA, such cases are directly provided answer and attention. In addition, the secrecy which is highly regarded in this act had been very important to guard the nation from possible anxiety. Therefore, FISA is an act which is mainly important for the United States to maintain its peace and security.
American Civil Liberties Union. The Foreign Intelligence Surveillance Act. Retrieved January 23, 2009 from http://www.aclu.org/safefree/spying/fisa.html.
Electronic Privacy Information Center. The Foreign Intelligence Surveillance Act (FISA). Retrieved January 23, 2009 from http://epic.org/privacy/terrorism/fisa/.