Fixing FISA for Long War: Regulating Warrantless Surveillance in the Age of Terrorism

[Excerpt] “The English poet W.H. Auden once claimed that “Peeping Toms are never praised, like novelists or bird watchers, for the keenness of their observations.” Perhaps Auden would have modified his maxim had he lived in the age of terrorism. A certain degree of government surveillance of even intimate communications is expected, encouraged, and indeed praised when the government’s efforts lead to the prevention of catastrophe. However, it is also expected that the government will minimize these intrusions, will conduct surveillance only on legitimate targets, and will follow the procedural safeguards that the representatives of the people have enacted in their name. As the Bush Administration has recently discovered, where these caveats are (or are perceived to have been) disrespected, government surveillance is perceived to degenerate into an illegitimate invasion of privacy and arbitrary abuse of power. On December 16, 2005, the New York Times revealed that, shortly after the terrorist attacks of September 11, the White House surreptitiously authorized the National Security Agency (“NSA”) to conduct surveillance on Americans inside the United States. This search for evidence of terrorist activity without first obtaining a court-approved warrant was in apparent violation of the Foreign Intelligence Surveillance Act (“FISA”) and in possible abrogation of the Fourth Amendment. […] In this article, assuming that the warrantless searches are necessary and that strict compliance with FISA in its current form would inhibit the collection of intelligence vital to national security, I will suggest amendments to FISA that would create a new independent body, appointed by the FISC, with the power to review the NSA’s warrantless searches and with the standing to challenge the constitutionality of individual searches before the FISC. Where an individual’s constitutional rights have been violated, the agency would be able to collect damages on his behalf and to move for an injunction on continued surveillance. I will also suggest statutory limitations restricting the admissibility of evidence gathered through warrantless surveillance in criminal prosecutions. Before I offer any suggestions for the amendment of FISA, however, I will describe in further detail the purpose and relevant provisions of the law to be amended and the deficiencies of the Administration’s legal justifications for bypassing those provisions. Because the Administration believes that the President has the inherent authority to conduct warrantless searches pursuant to his power as Commander-in-Chief, it does not believe that amendments to FISA (or even FISA itself) are necessary. Thus, in Part II of this article, I will briefly sketch the historical circumstances which led Congress to believe why it was necessary and proper to enact FISA, outline the provisions of FISA which are relevant to this article, and describe the contours of the NSA program to the extent that they have been made public. In Part III, I will suggest why the Administration’s arguments regarding the legality of the domestic surveillance program lack merit. Finally, in Part IV, I will offer suggestions for the amendment of FISA

Searching for Accountability Under FISA: Internal Separation of Powers and Surveillance Law

The Foreign Intelligence Surveillance Act (FISA) has never been more controversial. Enacted to bolster surveillance\u27s institutional framework after the excesses of J. Edgar Hoover\u27s FBI, FISA\u27s deficits have been front and center due to the Justice Department Inspector General\u27s report on the flawed Carter Page FISA request and disclosures of excessive FBI querying of U.S. person information under § 702 of the FISA Amendments Act. This Article suggests that current problems have their roots in the failure of both the FBI and the Department of Justice (DOJ) to learn the lessons of FISA\u27s origins and history

Circumventing the Constitution for National Security: An Analysis of the Evolution of the Foreign Intelligence Exception to the Fourth Amendment’s Warrant Requirement

Though few are even aware of its existence, the foreign intelligence exception to the Fourth Amendment’s warrant requirement affects the lives of nearly every American. Recent leaks of top-­‐secret National Security Administration documents depict how the government has morphed the exception into a massive catch all that allows intelligence agencies to perform invasive searches without a warrant and in complete disregard of the Constitution. The foreign intelligence exception began as a narrow tool to shield sensitive national security investigations, but its application has reached an alarming breadth. This note explores the creation and expansion of the foreign intelligence exception, tracing its history from George Washington’s secret surveillance efforts during the Revolutionary War to the modern framework for warrantless intelligence surveillance created by the Patriot Act. The Supreme Court has long recognized the necessity of exceptions to the Fourth Amendment’s ordinarily strict warrant and probable cause requirements. However, this history illustrates the foreign intelligence exception’s glaring disregard for the protections afforded to all Americans by the Fourth Amendment

Conceptualizing and Reconceptualizing the Reporter’s Privilege in the Age of Wikileaks

The examination of the reporter’s privilege in light of WikiLeaks gives rise to several imperative questions. Could WikiLeaks claim a federal reporter’s privilege if the U.S. government were to ask it to disclose the sources of its documents? Does the current federal law on reporter’s privilege adequately address new media, such as WikiLeaks? And if not, how should the law evolve to sufficiently accommodate organizations like WikiLeaks? This Note seeks to answer these questions. First, this Note advocates that WikiLeaks would be able to claim the privilege under current federal law. Second, this Note concludes that the current law on the reporter’s privilege has not sufficiently evolved to account for entities like WikiLeaks. Third, this Note discusses policy proposals to address the current shortcomings and ultimately advocates for a qualified privilege, the scope of which is determined by the source’s expectations, where the reporter presents the source’s expectations in court on behalf of the source

Only the DOJ Knows: The Secret Law of Electronic Surveillance

This Article examines a troubling pattern in the application of federal law enforcement surveillance statutes-namely, those portions of the Electronic Communications Privacy Act of 1986 (the ECPA ) sometimes known as the Pen Register Statute ( PRS ) and the Stored Communications Act- ( SCA )-whereby federal prosecutors secretly and routinely obtain court authorization for surveillance that Congress did not intend and which may violate the Fourth Amendment