According to the Fourth Amendment of the Constitution, a search warrant cannot be granted without probable cause. However, under FISA guidelines, a surveillance order is granted if there is probable cause, but only if the target is either a foreign power or an agent of a foreign power (Tien, 2001). The FISA guidelines state that any requests for surveillance orders must go through the Justice Department, to be reviewed and personally approved by the Attorney General. The order is then sent to the FISC.
An FISC judge must then determine that there is probable cause for the target surveillance. The FISC judge must also determine that the surveillance location is currently being used, or will be used, by the target. An approved surveillance order is valid for a period of 90 days, for an agent of a foreign power target, and a period of one year, for a foreign power. The FISC also determines if a target is a foreign power or an agent of a foreign power (Tien, 2001). Under the FISA, all hearings conducted by the FISC are secret. Philip Colangelo (2000) stated:
Each FISA plaintiff is not notified of the charges, is not advised of the trial date, not allowed a public trial, not allowed to appear in his own defense, not allowed counsel, not allowed to rebut testimony, not allowed a transcript of the proceedings, and not allowed to appeal. In fact, the accused is not allowed to be present at his trial. Many legal minds and American people are concerned that the FISA violates civil liberties and rights provided by the Constitution. Certain groups and individuals that work with victims of U. S.
foreign policy fear that, by being targeted under the FISA, their First and Fourth Amendment rights will be ignored. Most importantly there is a serious concern about FISA power abuse, considering that exact powers are vague and general in nature (Tien, 2001). The Electronic Surveillance Modernization Act, passed in September 2006 by the House of Representatives, was designed to make the FISA more flexible. Under this act, authorities had more leniencies in acquiring foreign intelligence information. However, this bill also added the requirement of increased reporting and heavier congressional supervision (Agrast, 2006).
Unfortunately, while the idea of more control and supervision of surveillance orders appeared to be the purpose of this act, there are other aspects that suggest a further invasion of Fourth Amendment rights. Mark Agrast (2006) gave a summary of what this bill would entail: 1. Redefine electronic surveillance to permit the government to intercept without a warrant not only international calls and emails to or from spies or terrorists, but every call or email entering or leaving the United States even where there is a substantial likelihood that the surveillance is not directed at a particular known individual in the United States; 2.
Permit the government to retain and use communications of U. S. persons acquired in the course of warrantless surveillance, repealing the current minimization requirement that such communications be destroyed unless a court order is obtained or certain exigent circumstances are shown to exist; 3. Provide immunity from liability to communications service providers who gave the government access to private communications from 9/11 until 60 days after the enactment of the bill.
This provision could result in the dismissal of lawsuits filed against service providers who cooperated in the NSA program; 4. Expand profoundly the current emergency provisions of FISA by permitting warrantless surveillance for a 90-day period following a terrorist attack or if the president determines that there is an imminent threat of attack likely to cause death, serious injury, or substantial economic damage, and permitting the president to grant himself extensions of the 90-day authorization indefinitely and in secret; and 5.
Amend the National Security Act of 1947 to eliminate the requirement that the president keep the members of the House and Senate intelligence committees fully and currently informed of intelligence activities. Agrast believes that these changes to the FISA would allow the government to acquire massive quantities of information from innocent Americans, without any judicial oversight. He stated that these changes will not contribute anything useful to help how the nation responds to terrorism threats.
Additionally, these changes will yield too much surveillance information in an intelligence mission to be truly useful. References Agrast, M. (2006) Shredding the Fourth Amendment. Accessed at http://www. americanprogress. org/issues/2006/09/fisa. html Colangelo, P. (2000) The Secret FISA Court: Rubber Stamping Our Rights. Accessed at http://www. freerepublic. com/forum/a3a27337612f5 Tien, L. (2001) Foreign Intelligence Surveillance Act: FAQs. Accessed at http://www. eff. org/Censorship/Terrorism_militias/fisa_faq. html