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The Foreign Intelligence Surveillance Act (FISA)

A Short History


The Foreign Intelligence Surveillance Act (FISA) has gotten a good bit of press over the past two years, but it's difficult to understand what the law means and why it's important without knowing a little bit about its history. The story goes something like this...

1970: Christopher Pyle Speaks Out

1967 Demonstration
Photo: NARA.
In January of 1970, a young man named Christopher Pyle uncovered evidence that the U.S. Army Intelligence Command had over 1,500 officers in the United States commissioned to spy on any known protests or demonstrations with more than 20 participants. His complaint caught the eye of Senator Sam Ervin (D-NC) and Senator Frank Church (D-ID), each of whom launched committee investigations into warrantless government surveillance of civilians.

1974-1976: Seymour Hersh and the Church Committee

Mail Sorting
Photo: Peter McDiarmid / Getty Images.
As chair of the Senate Judiciary Subcommittee on Constitutional Rights, Senator Ervin was concerned about Pyle's allegations but had little power to act on them. Ervin's work as chair of the Watergate committee, from 1972 on, would prove more productive.

His work was picked up by Senator Church in 1975, after the resignation of President Nixon and the publication of a December 1974 report by journalist Seymour Hersh revealing large-scale warrantless CIA surveillance. Senator Church led the U.S. Select Committee to Study Governmental Operations with Respect to Intelligence Activities, which found that the executive branch had routinely perpetrated civil liberties violations against civilians on a massive scale in violation of federal law.

1978: President Carter Signs the Foreign Intelligence Surveillance Act (FISA)

Jimmy Carter and Frank Church
Photo: NARA.
The Church Committee's findings led to numerous changes in U.S. policy. One of these changes was the establishment of the Foreign Intelligence Surveillance Court, a court through which the executive branch may secretly obtain warrants for electronic surveillance while remaining subject to judicial review.

1994: The Aldrich Ames Controversy

Bill Clinton and Janet Reno
Photo: Mark Wilson / Getty Images.
FISA did not cover physical searches at first. When the Clinton administration investigated CIA agent and suspected Soviet spy Aldrich Ames in 1994, the president ordered Attorney General Janet Reno to authorize warrantless physical searches of Ames' residence. The Clinton administration argued that the executive branch did not need a search warrant in cases where the suspect was believed to be an agent of a foreign power, even if the suspect was a U.S. citizen.

Under pressure from civil libertarians, the Clinton administration eventually agreed to a revision of FISA that allowed justice department officials to obtain warrants for physical searches through the Foreign Intelligence Surveillance Court.

2005-present: The Spygate Controversy

Bush and Gonzales
Photo: Mark Wilson / Getty Images.
In December 2005, the New York Times reported that the Bush administration had conducted numerous illegal warrantless searches as part of its counterterrorism initiatives. In January 2007, the Bush administration voluntarily agreed to place its surveillance program under the supervision of the Federal Intelligence Surveillance Court. The Court was promptly overwhelmed with the number of surveillance requests, creating the possibility of unacceptable delays in processing FISA warrants. In August 2007, Congress passed a law exempting the Bush administration from FISA for six months, allowing time to analyze and debate possible long-term revisions that can be made to FISA to better accommodate both the Court and the executive branch.
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