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A Secret Court For A Secret War Kevin Currie ENF 645 Counter Terrorism Dr. Shaw October 21, 2009 A Mysterious Click On The Telephone Line. Against the moonlit streets of Washington D.C, heavy snowfall covers the usually quiet city. Across the National Mall a single light in the Capital building glows bright as two members of congress share a late drink discussing a matter of national security. Quietly the two members who serve on the Forgiven Intelligence Surveillance court, known to many as FISA, discuss a radio address given by President George Bush. After finishing a small glass of a well-aged brandy, one of the men opens a file on a near by laptop and plays the following radio address. "If this law expires, it will become harder to figure out what our enemies are doing to infiltrate our country, harder for us to uncover terrorist plots, and harder to prevent attacks on the American people," Bush said. "We need to know who our enemies are and what they are plotting. And we cannot afford to wait until after an attack to put the pieces together." (Bush national radio test n) A long sigh followed by a click of the laptop mouse, one of the men said “Is the President talking about an a warrantless tap program?” “Yes, and if this gets out, the American People are going to revolt. If the President gets his way, anyone can have his or her phones taped at anytime without a court order; and it’s an election year to make things worse.” Quietly the other man sips his ice filled glass, pauses then grimly says “ya it’s going to be George Orwell’s 1984. This is going get ugly.” Even though this conversation may be fictional, the concern is very real. Under the previous administration of George W. Bush, and even under the current administration, there is a real fear of warrantless wiretaps being issued without the oversight of the FISA court, which could cause immense damage to privacy laws and the moral of a nation. Additionally, if the basic rule of law is pushed aside by this administration could set a very dangerous precedent for a runaway government invading the private lives of every American creating a nation similar to the fictional novel 1984. Understanding the danger if the oversight FISA court is not implemented for every warrant is imperative. However, more Americans appear to be more concerned about Britney Spears than the inner workings of a government, which may not consider the rule of law. Further more even less Americans known what FISA is and why it was created. The Foreign Intelligence Surveillance Act also known as FISA was created back in 1978 as public law 95-511, and then amended by the Patriot Act under the Bush Administration.
This very act was produced from continued concern of domestic spying by the NSA. In 1972, the United States Supreme Court reviewed reported wiretap abuses and declared that warrantless wiretaps of domestic groups for national security reasons were a direct violation of the Fourth Amendment. This historical case was documented as The United States v. United States District Court (Keith), 407 U.S. 297 (1972). Even though the Supreme Court has ruled this type of domestic spying illegal, this has not stopped some from “bending of the rules” especially in a post 9/11 world. It is important to recognize how broad, ambiguous, and extreme secrecy the FISA events makes the power of FISA predisposed to abuse. The FISA act/power extends beyond countries harboring spies and terrorists. In fact FISA can be used in criminal investigations involving United States citizens. Take for example a portion of the electronic surveillance section 1801(f)(1) states “only reaches wire or radio communications sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person." (FISA court, June 1978) In other words, if you or someone you may know broke the law in some fashion, the investigative agency may use the FISA act without a warrant. Historically the National Security Agency was forced to obtain warrants from the top-secret FISA court before any eavesdropping on Americans for “ gathering intelligence” could begin. Although in early 2007 the FISA court ruled on new restraints for NSA, FBI and CIA suddenly requiring these agencies to obtain a warrant if an intercept of foreign-to-foreign communications pass through a U.S. network, which is a common occurrence with most electronic communications. (Pern, Stern p. 258) Of the most common forms of electronic communication is the mobile telephone. Even with our love/hate relationship with cellular providers, including Verizon T-Mobile, and AT&T these big companies were fighting the government from gaining telephone records. According to a USA Today report “major U.S. telecom carriers turned over the telephone records of millions of residents to the U.S. National Security Agency (NSA) for use in tracking domestic terrorist communications.” (Gross, p.21) Considering the NSA used the very common “National Security” reason, any intelligent, reasonable, person should question this blanket response, since we really do not know how this data is being used. If this is still not concerning enough, the Department Of Justice flatly denied the ACLU a motion for
the release of court FISA records on December 11, 2007 as shown from the actual faxed document
below. The memorandum opinion mentioned was a diplomatic way of saying nothing shall be released based on national security. The growing concern with FISA could be credited with an article written on December 16, 2005 by New York Times reporters stating President Bush “secretly authorized the NSA to conduct electronic surveillance on Americans and others without warrants. (Risen, A1) To apply balance within this essay, the NSA did apply the use of warrants 2,176 in all during 2006. Additionally the Bush Administration finally conceded allowing FISA judges to review the measures for wiretapping as long as 120 days after the original tapping took place. However, if a judge objects to the wiretapping the action could continue pending an appeal to the Supreme Court. Considering these actions may not even exist without the outcry of the media and organizations including the ACLU, and the Electronic Frontier Foundation. (Senate Select Comm) Because of the FISA act and the events of 9/11 a man named Petitioner Hamdi, an American citizen whom the Government has classified as an "enemy combatant" for supposedly joining a Taliban cell, and was captured in Afghanistan and is detained Charleston, S. C. (Schmitt p. 11) Hamdi's father filed a habeas petition under 28 U. S. C. §2241, alleging the United States Government is holding his son in violation of the Fifth and Fourteenth Amendments as Hamdi traveled to Afghanistan for relief work less than two months before September 11, thus could not have established any military training. Hamdi is currently detained as an enemy of the state, in part of the FISA law. (Schmitt p. 13)
Yet a visit to this area for two months could also be used for other reasons, including a different type of training, including intelligence gathering for a sleeper cell. The battle of the FISA law, court has added a new chapter as President Bush suggested during the State Of The Union to renew the FISA laws, as they will expire on February 1, 2008. During his speech the President stated, “Without passage of FISA, Americans will face greater threat as intelligence officers will have their hands tied in monitoring terrorist communications overseas. Democrats have stalled for six months and are now facing a dangerously close deadline. Congress must act immediately to pass a permanent fix to our FISA laws.” It is difficult to determine what is considered an “immediately permanent fix” or how they changes will directly affect American citizens and our way of life. Considering the numerous demands intelligence agencies are placing on telecommunications companies, it would appear no company is considered safe. Nevertheless, President Bush admitted FISA requires a permanent fix, which may be a step in the right direction if the rule of law is applied. Since the creation of the FISA act, congress has made it’s mark, including Congressman Don Edwards heavily worded opposition to extending FISA to authorize secret searches in 1994. Considering the length of his letter, and the response from Attorney General Janet Reno is considerable, thus the links of the congressman Edwards and response can be read here, and the response here. Reading Attorney General Janet Reno’s response provided a hopeful response of what the FISA law could have been. Shown below is portion of the response paragraph, which clearly details the proper use of the FISA law.
This response clearly means there is a necessary need for this valuable tool in order continue to fight international and domestic terrorism. However, the question remains what positive outcome could be made if our allies shared captured intelligence and ours with them? The answer could result in many sleeper cells removed and the preventative attacks. Another possible positive of this sharing method could be the recent arrest of Najibullah Zazi, in New York City who was linked to a terrorist group. With this very public win against terrorism it is easy to assume to say all our available resources are being used to capacity, and sharing the data leading to this arrest could save lives in other countries. Still, there are many resources, which are considered Top Secret, or Classified, which may be used with the FISA system. Yet, with the many resources of the numerous agencies, the question remains, how does this effect and influence the lives of Americans and our allies. There are many people who will openly admit the actions and methods used to combat terrorism is nothing more than big brother running amuck, as certain communities are being targeted because of their religious beliefs, and are not being treated fairly. This leads to the very difficult question, what recommendations should be put in place in order to achieve the proper results without dividing a nation using current methods including the FISA court. The first step is to create a level of trust where all Americans have the full opportunity of understanding the benefits of such methods including FISA, to be explained in plain English. Far too often the law are written in another language known as “lawyer speak.” Once the FISA court is explained in a common manner, more citizens will understand your communication device is not being tapped for
domestic calls, but only if a call is being place to a country considered a threat to America and our allies. Additionally further diplomacy should reach the communities who feel they are being targeted, including the Mosques who may offer housing to those who express radical ideals, allowing them to fully understand words of hate and acts of violence should be taken against another for not following the words of Allah is not the way of the Koran. This of course is easier than done, considering there is always someone who is ready to follow any order in the name of his or her God. Even though there are many tools to fight terrorism, there is one option, which appears to be either not popular or operating on a secret level. A program of prevention could easily stem future waves of young terrorists. Such programs could include assisting areas with massive poverty, including many areas in Africa, (Somali for example) and places in the Middle East. This simple step of just winning over the people who have lost all hope could create a great ally against a growing enemy. Certainly this suggestion may appears to be made of dreams, and could take years to see any real results. With that in mind, the faster option is to find a better method of sharing information between departments, including the NSA, who is usually a lone island, ensuring more agencies can plan the course of action based on a large “picture” of intel than a small piece. Counterterrorism is a difficult task considering the vast amount of challenges to face, including multiple internal agencies (The Department of Homeland Security) and a congress that is playing politics in a post 9/11 environment. Still unless we as a nation begin to take a common stance against terrorism the fight may be more difficult even with all of the current methods and process currently in place, leaving a great county to fall with nothing more than a memory in some history book collecting dust on a bookshelf.
References NSL Reform Act Introduced. (2007, September). American Libraries, 38(8), 25-26. Retrieved January 27, 2008, from Research Library database. (Document ID: 1360492611) Electronic Surveillance Within the United States for Foreign Intelligence Purposes, Hearings on S. 3197 Before the Subcomm. on Intelligence and the Rights of Americans of the Senate Select Comm. on Intelligence, 94th Cong. (June 29, July 1, August 6, 10, & 24, 1976) Foreign Intelligence Surveillance Act, before the Subcomm. on Courts, Civil Liberties and the Administration of Justice of the House Comm. on the Judiciary House of Representatives, 95th Cong. (June 22, 28, and 29, 1978).
Gary Schmitt (2006, January). Constitutional Spying. The Weekly Standard, 11(16), 11-13. Retrieved January 27, 2008, from Research Library database. (Document ID: 957238571) Keith Perine, Seth Stern. (2007, January). White House Gets Secret Court's Backing for Surveillance Program. CQ Weekly, 65(4), 258. Retrieved January 27, 2008, from Research Library database. (Document ID: 1222828161) Reason and Wiretaps Wall Street Journal. (Eastern Edition). New York, N.Y.:Aug 8, 2007. p. A.12 The Rules for Eavesdropping: Congress returns to the electronic surveillance controversy Kevin Whitelaw. U.S. News & World Report. Washington:Oct 15, 2007. Vol. 143, Iss. 13, p. 39 Verizon-NSA Case Raises Tough Questions Grant Gross. InfoWorld. San Mateo: May 22, 2006. Vol. 28, Iss. 21, p.12 (1 pp.)
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