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The Fog of FISA

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Message Blaine Kinsey

The Constitution is neither perfect nor sacred, but its simplicity makes it adaptable to changing circumstances, and the Constitution does provide a method for amending any errors of commission or omission. It is to our credit that much of the racism embedded in the original Constitution has been nullified via amendments. 

I am not an attorney, but our Constitution was written so that it could be understood by us common people. However, there are some constitutional disputes which are so complex that most people have difficulty understanding the issues, and many of the most complex constitutional disputes are about the extent to which the Federal government may infringe upon rights in situations where the language in the Constitution states that the Federal government may not infringe upon such rights. 

Most reasonable people understand that the individual rights which are protected by the Constitution are not absolute, even when those rights are expressed in language that is uncluttered and unequivocal, but we should be exceedingly skeptical when someone is torturing the English language to explain why it is legal for the government to engage in activity that ostensibly is prohibited by the Constitution.


The Fourth Amendment to the U.S. Constitution is clear and concise:

"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."  

In the case of KATZ v. UNITED STATES (1967), the Supreme Court stated:

"The Government's eavesdropping activities violated the privacy upon which petitioner justifiably relied while using the telephone booth and thus constituted a 'search and seizure' within the meaning of the Fourth Amendment." 

As specified by the Fourth Amendment, the government must have some reasonable basis for directing a search at a particular target. Although a reasonable search does not necessarily require a warrant, probable cause is a prerequisite for any reasonable search of the communication of a U.S. citizen or other legal U.S. resident.

Contrary to what defenders of the Terrorist Surveillance Program posit, a search is not reasonable merely because the underlying motivation (e.g., the possibility that a search may uncover dangerous illegal activity) for the search is reasonable. With the exception of physical searches at international borders (which historically is related to the enforcement of customs laws), a search is not reasonable if probable cause does not exist for the search. Otherwise, there would be no legal barrier to prevent us from living under constant surveillance.

The concerted effort in Congress to disembowel the Foreign Intelligence Surveillance Act (FISA) of 1978 is a good example of how precariously individual liberties exist during periods of mass hysteria.

FISA covers all forms of surveillance, including physical searches, but most of the controversy concerning FISA relates to a program of warrantless electronic surveillance that was directed by the National Security Agency (NSA) and that was initiated by the Bush Administration no later than September 2001. (Some evidence from former Quest CEO Joseph Nacchio, and from the lawsuit Hepting v. AT&T Corp., indicates that this program was initiated as early as February 2001). This program of warrantless electronic surveillance has been termed the Terrorist Surveillance Program by the Bush Administration, and the existence of this Terrorist Surveillance Program was revealed to the public by the New York Times in December 2005. To protect national security and to protect themselves from being held accountable for their actions, the Bush Administration is doing everything possible to prevent Congress and the public from understanding the exact nature and extent of the Terrorist Surveillance Program.

FISA provides a legal means for the Federal government to obtain foreign intelligence through surveillance, but the Bush Administration maintains that FISA was inadequate for our so-called war on terror. In a commentary which was printed by the Philadelphia Inquirer on February 1, 2008, Richard Clarke, former head of counterterrorism at the National Security Council, wrote:

 "Though 9/11 changed the prism through which we view surveillance and intelligence, it did not in any way change the effectiveness of FISA to allow us to track and monitor our enemies. FISA has (sic) and still works as the most valuable mechanism for monitoring our enemies."

James A. Baker, who was formerly head of the Office of Intelligence Policy and Review (OPIR) at the Department of Justice, and who worked for OPIR from 1998 until January 2007, submitted a statement to the Senate Judiciary Committee on September 25, 2007 in which he explained that FISA had been a useful tool in obtaining actionable foreign intelligence. This information from Mr. Clarke and Mr. Baker is in stark contrast to the disparaging manner in which most defenders of the Terrorist Surveillance Program have portrayed FISA, but much of the criticism of FISA is baseless propaganda that is intended to justify the Terrorist Surveillance Program.

Some defenders of the Terrorist Surveillance Program argue that privacy should not impede such surveillance because most people have voluntarily and involuntarily surrendered their privacy to a myriad of business interests (especially via the internet). There is a distinct difference between surrendering information to a private enterprise with which you are transacting business and having the government obtain information from you illegally and involuntarily (regardless of the government's motivation). Specific laws prohibit third parties from obtaining certain personal data that is intended to be maintained in private by the business to whom this information is divulged. The fact that private enterprise may obtain certain information legally and voluntarily is not a constitutional issue. It is not illegal for your neighbor to keep you under visual surveillance and to compile a dossier on you, but it is illegal for the Federal government (or a State) to engage in surveillance of U.S. citizens and other legal residents without probable cause.

In November 2007, Mark Klein, a retired AT&T technician, visited Washington D.C. to furnish information to members of Congress, congressional staff members and journalists about his personal knowledge of wiretapping by the National Security Agency (which directed the Terrorist Surveillance Program), including massive unfiltered electronic surveillance of Internet traffic and telephone calls to and from U.S. citizens. The information disclosed by Mr. Klein has been an integral part of a pending lawsuit (Hepting v. AT&T Corp.), yet this information had received little media attention prior to Mr. Klein's trip to Washington.

On December 19, 2007, Ryan Singel reported for the WIRED magazine blog Threat Level that information obtained via a request under the Freedom of Information Act by the Electronic Frontier Foundation from the FBI, in an end-of-year report compiled by the FBI's Telecommunications Intercept and Collection Technology Unit, revealed that the FBI's software for recording telephone surveillance of suspected spies and terrorists intercepted 27,728,675 sessions in 2006. The report did not explain the methodology, but such reports indicate that the surveillance was not targeted with much precision.

On February 28, 2008, Babak Pasdar (a computer security consultant) filed a seven-page affadavit with the Government Accountability Project explaining that, while he was working to revamp security for a major telecommunications carrier, he discovered a link referred to as the Quantico Circuit that was passively giving a third-party (the center of the FBI's electronic surveillance operations is in Quantico, VA) "access to the billing system, text messaging, fraud detection, web site, and pretty much all the systems in the data center without apparent restrictions."

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I am retired after working 33 years as a Claims Representative for the Social Security Administration, and I am a card-carrying member of the ACLU.
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