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The FISA Amendments Act of 2008 (H.R. 6304)

What All the Fuss is About

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In July 2008, Congress passed revisions to the Foreign Intelligence Surveillance Act (FISA) allowing the Bush administration and future administrations to expand its foreign intelligence operations in a manner that could violate U.S. civil liberties.

1. Why was the Act proposed?

In December 2005, the New York Times revealed that the Bush administration had been conducting warrantless surveillance on international phone calls going to and from the United States without seeking approval from the Foreign Intelligence Surveillance Court. This is a violation of federal law, and may also be a violation of the Fourth Amendment to the U.S. Constitution.

For about two years, Congress attempted to revise the Act to allow the Bush administration to conduct warrantless searches without breaking federal law or sidestepping all existing oversight procedures.

2. What does the new Act say?

The most crucial change made by the law is that individual foreign intelligence surveillance warrants no longer need to be approved by the Foreign Intelligence Surveillance Court under the new legislation. Instead, general procedures used to make decisions regarding foreign surveillance are approved by the Court and then specific decisions regarding warrants are made by the administration.

3. Are there any practical, non-sinister advantages to the new Act?

Yes: It prevents the Foreign Intelligence Surveillance Court from being backlogged due to a high number of surveillance requests, and it incorporates the Bush administration's illegal spying program into a legal framework.

4. How can the Act be abused?

While the FISA Amendments Act specifies that no intentional surveillance of conversations between and among "United States persons" (persons resident in the United States or U.S. citizens resident in other countries), or surveillance targeting United States persons, it is very easy to imagine that the federal government would use information about U.S. persons "accidentally" obtained under FISA to target political enemies, dissidents, suspected undocumented immigrants, and suspected drug users or dealers.

5. Doesn't this violate the Fourth Amendment?

The Fourth Amendment specifically prohibits the sort of general warrants outlined in the legislation:
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.
But there's a catch: The Court has traditionally held that the Fourth Amendment protects all "United States persons" (U.S. citizens and residents), but does not protect those who are not resident in, or citizens of, the United States.

6. What would happen if the government abused FISA to target a U.S. citizen?

Any court worth it weight in salt would rule any evidence obtained directly through warrantless surveillance, or indirectly as a result of warrantless surveillance, completely inadmissible. That being the case, odds that information obtained through FISA surveillance would be against U.S. persons would seem to be remote, at least in the short term.

But a more conservative Supreme Court could reinterpret the Fourth Amendment to apply only to full U.S. citizens (allowing the government to target non-citizen U.S. residents using FISA), or somehow reinterpret national security interests as being more important than the interests served by the Fourth Amendment.

7. What happens if the government ignores the law and doesn't report procedures?

Probably the same thing that happened when the government ignored the original FISA of 1978: Absolutely nothing.

8. Is this the first time FISA has been broken and then revised in this manner?

No. In 1994, the Clinton administration violated FISA's physical search clauses in its investigation of suspected spy Aldrich Ames; Congress revised FISA to meet the administration's needs and retroactively approve of the original violation, just as it essentially has in this case.

9. Is there any way to prevent or discourage future presidents from violating FISA?

There are several, ranging from criminal penalties to automatic censure to the reestablishment of an independent counsel system. None of these options have been put to use in the bill.

10. What about the telecom immunity clause?

It's not ideal, but it's far from being the only, or even the most serious, problem with this legislation.
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