What Is FISA, Anyway?

It's probably past time that I should have gone over the FISA law and it's history. It's easy to get caught up in the anger and the frustration when our government oversteps its authority, but for those who aren't exactly sure what FISA is, let's go over this primer.

FISA stands for Foreign Intelligence Surveillance Act, and it was originally enacted in 1978, largely as a result of Congressional investigation into the Watergate matter and President Nixon's extensive use of Federal resources to spy on American citizens, particularly political and activist groups, in violation of the Fourth Amendment. Under FISA, governmental agents could spy for up to a year without warrants, unless United States citizens were involved. In that case, spying could be done for up to 72 hours PRIOR to judicial authorization. Although still technically a violation of the Fourth Amendment in my view, this was done as a compromise between losing vital information in the wait until a judge could review the request and the complete lack of oversight of the Nixon spying program.

The most controversial aspect of the original FISA law, in my view, was the creation of the FISC or Foreign Intelligence Surveillance Court, more commonly referred to as the FISA court. The reason this is so controversial is that this court is a secret court. It's rulings are secret, it's proceedings are secret, even it's membership is secret. There are eleven FISA court judges, appointed by the Chief Justice of the Supreme Court, and proceedings before the court involve solely the Department of Justice.

And it is a measure of how far we've fallen in this country that a secret court, comprised of members selected by the President's hand-picked Chief Justice and whose rulings and entire operation are completely secret is the oversight we're arguing FOR, because opponents claim that the burden of having to submit warrant requests to this court, even up to three days after the fact is too onerous on the President and the Justice Department. It amazes me that I find myself in the position of arguing in FAVOR of a secret court, when the very term "secret court" conjures up images of political trials in the old Soviet Union, or the mockery trials of Jews in Nazi Germany.

Since 1978, the bill has been amended twice. First in 2001, in the aftermath of 9/11, it was amended in the passage of the Patriot Act, largely to make it's application to terrorist groups explicit instead of implied.

The second modification of the bill came in the "Protect America Act of 2007", passed and signed into law on August 5, 2007. This law was in response to the President's warrantless wiretapping program, and to the Presidents' assertion that the existing FISA law did not apply to cellular telephones and internet communication. It was a temporary modification with a 'sunset clause' that made it expire in February, five months later. What this modification did was removed the requirement that warrants be obtained for any governmental surveillance "reasonably believed" to be of targets outside of the United States. Instead of having to obtain a warrant from the secret court, the new requirement was only that the court be notified, in a sealed notification that was not to be opened unless the legality of the wiretapping was challenged. That's right, you understand that correctly, the entire oversight of any spying was a sealed document containing whatever justification the Justice Department had for wanting to observe the target, that could only be opened if that spying was challenged, but since it was a secret, who could even challenge it?

The modification also changed the rules for spying on American citizens. Under the new bill, monitoring of all electronic communications in the United States without court oversight or warrants was permitted, provided it was not targeted at a specific person "reasonably believed to be" inside the country.

So essentially we removed a secret court's oversight and replaced it with a batch of requirements so vague and so secret that there's just about no way to prove when they are not followed. Like the Security Letters of the Patriot Act, there's no way to know if you've been targeted under the new law, and unless you know you've been targeted, you have no standing to challenge that targeting. There is no oversight, and that's a dangerous amount of power to put in the hands of any person.

Now, here's an important point, so pay attention: The original FISA law does not expire.

The argument in favor of a speedy adoption of the new FISA statute often alluded to the "expiration" of the FISA law, but what they rarely mention is that the only thing that expires are the "temporary extensions" to FISA which were enacted in August, 2007 and expired in February of this year. That's right, this whole brouhaha over the loss of "vital tools in the war on terror" is the President throwing a temper tantrum because some extra powers he was granted on a temporary basis had expired. The rest of FISA was still in place. The President could still go to the FISA court for warrants up to 72 hours retroactive to beginning his electronic surveillance of U.S. targets. He and his Justice Department had essentially all of the tools they needed to do their jobs, they merely chafed under the bridal of oversight and the annoyance of having to submit to it.

So now we get to the meat of the bill that was signed into law today after passing the Senate yesterday and the House on June 20th. This bill amends the original FISA law with the following points:

• Grants immunity to the telecommunications companies and other persons for their complicity in the Warrantless wiretapping program begun before there was any law even pretending to make it legal (and I still believe ultimately the law (and the program itself) is unconstitutional and should be struck down).
• Less well publicized is that it also grants them immunity from having to disclose any such involvement in any such spying to any investigating body. So we can't even investigate to determine whether the program was legal or not.
• Allows the government to not keep records of searches, and to destroy any existing records after a period of ten years.
• Removes the requirement for details descriptions of the nature of the surveillance or its target
• Increases the time for retroactive warrants for wiretaps on U.S. citizens from 72 hours to seven days.
• Requires FISA court permission to wiretap American citizens, even when overseas
• Explicitly denies that the invocation of "war powers" can override this statute, as President Bush claims in his argument for the legality of his earlier warrantless wiretapping program.

So ultimately the bill was a compromise on some issues (the "notification" of the FISA court went back to requiring a warrant, albeit not for seven days after the spying commences), but has the primary effect of protecting the President and the Justice Department from ever being successfully investigated regarding their excessive power grab in the spying program enacted in 2001, because the Telecom companies are expressly granted authority not to disclose their role in any of this to anyone, and without the threat of prosecution, there's simply no reason for them to voluntarily do so.

As I believe I've said before, I'm not overly anxious to see the telecoms prosecuted for this, except as part of a larger effort to ferret out the extent to which our laws, and our Constitution, were violated by this President. But granting immunity to the smaller fish before they've rolled over on the larger one prevents the main criminals from ever being held accountable.

(Note, I confirmed most of what I found independently, but the bulk of the information I have here came first from the Wikipedia articles on FISA and the two amendments. I am reasonably confident that the information is correct, but since my information here used that as a primary source, I felt I should reference it).