The Foreign Intelligence Surveillance
Act of 1978 (FISA) established a panel of judges (the Foreign
Intelligence Surveillance Court) who were empowered to issue
warrants to federal government organizations, including the National
Security Agency, to enable them to listen in on the conversations of
American citizens or residents who were speaking to foreign
nationals overseas or between two foreigners if the communications were intercepted at a hub located in the
United States. As originally construed, there had to be a foreign
intelligence angle to the investigation and the activity would be
limited to the monitoring of agents of foreign countries and their
contacts. The intention of FISA was to protect against egregious
violations of the Fourth Amendment’s guarantee that Americans
should have a “reasonable expectation of privacy” while
avoiding the complications resulting from constitutional standards
for what constitutes a legal search, i.e., that there be probable
cause, that the court should know the name of the target, and that a
fixed time frame for the activity be established. FISA lowered the
bar of probable cause in general because of the supposed involvement
of foreign governments, requiring only suspicion of possible illegal
activity rather than demonstrating that a crime had been committed
or was being planned, which was the normal basis for issuing a
warrant. Fishing expeditions in which numerous communications lines
were monitored in an attempt to find something incriminating
were forbidden.
But, as in so many other areas, 9/11 changed all that. Even though
FISA authorized the government to initiate a surveillance on its own
authority for up to 72 hours without any warrant or
judicial review in cases where immediate action was justified, the
Bush administration complained that the procedure was too slow and
unresponsive when a terrorist threat might be developing. As a
result, the restraint on what is referred to as bulk collection of
communications information was ended by Congress with the passage of
the FISA Amendments
Act of 2008, which was specifically intended to legalize
the NSA’s warrantless wiretap program. The Amendments Act dropped the
requirement for an actual warrant and permitted the government to
certify that bulk collection activity was in support of a foreign
counterintelligence program. It also allowed the attorney general
and the director of national intelligence to claim broad authority to
justify such action, citing, for example, a target as poorly defined
as “al-Qaeda activity in Europe” or “residents of
Belgium” as the objective of the search. The court would then
accept the government certification as justification for the
surveillance activity. The Justice Department, for its part, agreed
as part of the Amendments Act to “minimize” the number
of American citizens affected by the law and to retain
information obtained for a limited time period. Both pledges have been
largely ignored. The government also committed itself to not
intentionally target American citizens, though it is free to follow
up on “incidental interceptions,” or communications linkages that inadvertently involve Americans. That means in
reality that the government has de facto
authority to conduct unrestricted electronic and
communications surveillance of anyone worldwide.
What this means is that the NSA, like an enormous vacuum
cleaner, is monitoring nearly all electronic and voice
communications in real time and storing the information that
is not used immediately. The volume collected cannot even be
calculated. When Sens. Ron Wyden and Mark Udall asked
for the number of American citizens whose communications had been
intercepted, the NSA replied that to release such information would
be an invasion of privacy for the people who had been spied on and that such “an estimate was beyond [its] capacity.”
The computers that carry out the actual work collect the information
through intruding into communications servers and intercepting
satellite transmissions. The computers then sweep through the
information using sophisticated data-mining algorithms, frequently looking for key
words and numbers that connect to areas of interest, and route
selected information to analysts for further study. The rest of the
information, including detailed phone and Internet
records for many American citizens, is stored. And, far from minimizing the
use of the data, the government claims the right to use the
information collected by the NSA for purposes other than national
security. Section 1801(h)(3) of the Amendments Act specifically authorizes the
exploitation of information collected by warrantless surveillance to
support prosecution for offenses that are completely
unrelated to foreign intelligence.
When the Amendments Act was passed, it came with a sunset provision. Congress understood that it should be a temporary measure
because it raised some serious constitutional issues relating to
privacy. The Act was to be allowed to expire after four years, but its
persistence is testament to the fact that the government will never
willingly give up powers that it has acquired. The Act is now up
for re-approval by the Senate, and President Barack Obama, who ran
for office promising greater transparency and accountability in
government, strongly supports the extension. He is confident that
he has enough votes for passage, so we the American people should
assume that warrantless wiretapping will be endorsed for another four
years and no one’s communications will be safe from government
intrusion.
While the legal problem relating to renewing the Amendments Act is
evident — that it is a violation of the Fourth Amendment — far less
clear is
what the Act actually accomplishes. So much information is
collected that it is virtually unusable. Analysts at the CIA, the NSA,
and
the FBI are overwhelmed with information that has little in the way
of specificity and frequently is without any context. The
government claims that the program is a vital tool in its fight
against terrorism but does not make any effort to back up its
assertion, citing the necessity for secrecy as a limiting factor.
Has the data-mining operation led to the failure of any terrorist
plot? Has it led to the arrests of any actual terrorists capable of
carrying out a bombing? Or is it just a tool for
collecting a lot of essentially useless information on citizens and
foreigners who are completely innocent? These are critical
questions because the violation of the Constitution is serious
business and can only be justified, if at all, if a
visible and demonstrable threat is being addressed and
an enormous net gain in security is achieved. I see no
evidence of that, which suggests that an astonishingly
expensive program is being retained as a political gesture in
an election year because officials want to burnish their national
security credentials, not because the program has any value.
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