S.3001 and Emergency Electronic Surveillance

There exists in Congress four bills that I have been watching to see whether they mature into law or not. These particular bills, taken individually, are almost benign in what they allow government to do. Each bill addresses different aspects that could raise one's suspicions that they were attempting to build a police state--piece by piece. However, when you put them all together, there is no question that you have the makings for a total police state. From prisoner detention to total surveillance, it's all here... perhaps waiting for another 9/11 type event to get them passed into law. They are:

S. 2453 : National Security Surveillance Act of 2006

S. 2455 : Terrorist Surveillance Act of 2006

S. 2468 : A bill to provide standing for civil actions for declaratory and injunctive relief to persons who refrain from electronic communications through fear of being subject to warrantless electronic surveillance for foreign intelligence purposes, and for other purposes

S. 3001 : Foreign Intelligence Surveillance Improvement and Enhancement Act of 2006

Today, I want to take a closer look at S. 3001. This bill is intended to make the Foreign Intelligence Surveillance Act (FISA) more user-friendly. The Bush Administration has repeatedly complained that the requirements that currently exist under FISA don't allow them the flexibility to eavesdrop on terror suspects. I strongly disagree, but we'll save that for another post. In an effort to appease the president, Sen. Specter drafted the "Foreign Intelligence Surveillance Improvement and Enhancement Act of 2006'' to loosen the rules of surveillance on the executive branch.

 

In the original FISA, surveillance of "United States persons" was only allowed after the investigator went before the FISA court and presented his evidence showing that the target of surveillance was breaking the law. The judge, being a third party arbiter, would grant or deny the request based on the supporting evidence. If you know the language of, and the reasons for the inclusion of the Fourth Amendment to the United States Constitution, then you'll understand why FISA has to be structured after this fashion. For those who don't, I'll explain it.

 

First, lets review the language of the Fourth Amendment:

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.

This sentence is a restriction placed on government telling it's agents that the people are not to have their privacy violated by government unless it can be demonstrated through probable cause (note that it does not say reasonable suspicion) that you're breaking the law. If that condition is met, then a warrant will be issued allowing government agents to suspend your right of privacy so that they can search and/or seize those things specifically enumerated in their warrant. Remember, the U.S. Constitution and the government it instituted were placed on this earth to protect the rights of the American people. The people are given the widest latitude when it comes to government violating their rights, especially when it comes to this issue. The government is forced to operate under a very strict set of rules to protect the people from over-zealous government agents.

 

When FISA was created, the drafters understood that any new legislation must comply with the Fourth Amendment when a nexus could be shown to U.S. persons. Therefore, it was hard-coded into FISA that when the possibility existed that surveillance may include U.S. persons, they had to get a warrant. Doing so kept them in good graces with the Constitution. Doing otherwise would have them violating the individual's god-given right to be left alone by their government. Hopefully my explanation is clear: You have the right to privacy, antecedent of government. If government wants to violate your right to privacy, it must demonstrate probable cause to do so.

 

Now, lets take a look at Specter's bill. Let me start by saying that I'm not going to review the whole bill, but rather I intend to focus on the more egregious parts where it can be plainly shown to violate the Fourth Amendment. The version of the bill that I will be referring to can be found here (.pdf). When I reference language, I'll give you the page number and line so that you can look it up yourself.

 

The first item I want to address is the expansion of authority. On page 7, line 10, we see that the Attorney General has been granted the authority to "appoint appropriate supervisory or executive personnel ... to authorize electronic surveillance on a United States person in the United States on an emergency basis pursuant to the provisions of this subsection." With the flick of a pen, judicial review has been decimated. I'll explain this comment later. For now, lets continue.

 

The next section of interest begins on the same page at line 19. This section explains that surveillance of U.S. persons may be conducted if the

"supervisor or executive reasonably determines that (i) an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained; and (ii) the factual basis exists for the issuance of an order approving such surveillance under this title."

This puts in place two conditions that allow warrantless surveillance. The first is a declaration of an emergency made by the president, the second is the existence of a "factual basis" for a warrant to be issued. This language effectively moves the whole matter of surveillance of U.S. persons out of the arena of probable cause and puts it in the arena of reasonable suspicion--a much less stringent interpretation of the facts. (For your information, the president just happened to re-declare a state of emergency for another year on September 5th... in case you're wondering.)

 

Continuing, page 8, line 15, indicates that a "supervisor or executive responsible for the emergency employment of electronic surveillance" has 24 hours from commencement of the surveillance to submit a request for approval of the surveillance stating the grounds (or evidence) for said surveillance. From there, the Attorney General (or, if authorized by the Attorney General, to the Deputy Attorney General and the Assistant Attorney General for National Security) has 72 hours to review the request. From this point, there are two avenues this request can take. The first states that (page 9, line 6):

(B)(i) If the official concerned determines that the electronic surveillance does not meet the requirements of paragraph (1), the surveillance shall terminate immediately and may not be recommenced by any supervisor or executive appointed under paragraph (1), or any agent or employee acting under the supervision of such supervisor or executive, absent additional facts or changes in circumstances that lead a supervisor or executive appointed under paragraph (1) to reasonably believe that the requirements of paragraph (1) are satisfied.

In other words, the evidence supporting the surveillance was crap and to remain in good graces with the law, they need to stop their surveillance. Let me point out at this point in the procedure, a FISA judge has no knowledge that any surveillance has taken place. He has not been asked to review any of the evidence supporting the request for surveillance, either. To make matters worse, the second half of this big oopsy-daisy states (page 9, line 16):

(ii) In the event of a determination under clause (i), the Attorney General shall not be required, under section 106(j), to notify any United States person of the fact that the electronic surveillance covered by such determination was conducted before the termination of the surveillance under that clause. However, the official making such determination shall notify the court established by section 103(a) of such determination, and shall also provide notice of such determination in the first report that is submitted under section 108(a) after such determination is made.

In other words, you'll never know that you were the target of surveillance. Checks and balances? How quaint! Or, if you prefer: down the "memory hole". I mentioned earlier that this section changed how surveillance was permitted. It has been a longstanding fact in law that judges--not sheriffs or deputies or policemen--issued warrants. This was to protect the people from law enforcement officers with an axe to grind from acting as judge, jury, and executioner. That's why it is so important for a third party to be involved in the process. Mr. Specter's bill removes that protection and allows the executive branch to covers their own tracks, too.

 

The second avenue given states (page 10, line 1):

(C) If the official concerned determines that the surveillance meets the requirements of subsection (f), the surveillance may continue, subject to the requirements of paragraph (5).

(5)(A) An application in accordance with this title shall be made to a judge having jurisdiction under section 103 as soon as practicable but not more than 168 hours after the commencement of electronic surveillance under paragraph (1).

 

(B) In the absence of a judicial order approving electronic surveillance commenced under paragraph (1), the surveillance shall terminate at the earlier of--(i) when the information sought is obtained; or (ii) when the application under subparagraph (A) for an order approving the surveillance is denied; or (iii) 168 hours after the commencement of the surveillance.

There are a couple of points of interest contained in this section. It is only after the request for surveillance meets the approval of the Attorney General (or, if authorized by the Attorney General, to the Deputy Attorney General and the Assistant Attorney General for National Security) that it finally comes before a FISA judge. Essentially, Mr. Specter's bill turns FISA and the Fourth Amendment on their heads because it allows the CIA, FBI, NSA and any other alphabet agency the ability to pick fruit from the forbidden tree before they get permission to do so. Where is the protection in that? Where is the check by the judiciary on the executive? How does the average U.S. person protect himself from oppressive government? He can't.

 

Furthermore, section (B)(iii) requires surveillance be stopped after 168 hours. As a co-worker pointed out, all they would need to do is slightly change the given reason for surveillance, and they'd be good to go for another seven days of eavesdropping. He further remarked that with a decent list of crimes (i.e. those that could be construed to meet the "factual basis" test found on page 8, line 4), surveillance could go on for months without ever being brought before the FISA court.

 

In conclusion, both the Fourth Amendment and the original Foreign Intelligence Surveillance Act recognizes and protects an American's right to privacy by requiring any warrants to be issued by a judge based upon probable cause. The original FISA loosened the rules for when the warrant was to be obtained, allowing for unforeseen or emergency situations. What Mr. Specter's bill does is disembowels the protections of the Fourth Amendment and effectively neuters the original FISA by allowing the commencement of surveillance, only requiring a warrant almost as an after thought.

 

In a sense, Mr. Specter's bill asks Americans to "Trust us." Well, Mr. Specter, I don't. And its crap like this bill that gives me reason not to.