FISA Law Irrelevant, Unconstitutional, Critics Say

By Fred Lucas | July 7, 2008 | 8:23 PM EDT

( - When the U.S. Supreme Court said in 1967 that the 4th Amendment protects telephone conversations in a phone booth from surveillance without a warrant, Justice Potter Stewart said in the majority opinion that the ruling did not address "a situation involving national security."

The following year, when Congress crafted a bill to comply with the court ruling on surveillance, the language said nothing in the new rules "shall limit the constitutional power of the president to take such measures as he deems necessary to protect the nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States or to protect national security information."

In fact, Presidents Jimmy Carter and Bill Clinton both utilized warrantless wiretapping against U.S. citizens on American soil to protect national security, and few people cried foul.

Still, warrantless surveillance of international communications has been a raging controversy in the nation's capital for more than a year, as Congress has argued over how to hold the Bush administration accountable to the Foreign Intelligence Surveillance Act (FISA), passed in 1978 to require a judicial review prior to surveillance done within the United States for national security reasons.

The latest dust-up over FISA came after revelations that the National Security Agency had collected data on suspected communications to and from the United States with suspected terrorists abroad.

On Wednesday, the Senate Judiciary Committee will hold a hearing on a proposal to expand the surveillance powers of the executive branch while also granting immunity to telecommunications companies.

However, scholars and lawmakers question whether warrants - required under the Fourth Amendment to the Constitution - apply to national security matters and if FISA is even constitutional given past legal precedent.

Besides the 1967 ruling in Katz v. United States , the high court also issued a notable ruling in United States v. United States District Court , better known as the "Keith decision."

In this case, the court ruled the Fourth Amendment applied to the surveillance of a domestic terrorist group, but the decision went on to say, "We have not addressed and express no opinion as to the issue which may be involved with respect to activities of foreign powers and their agents."

The decision not to rule on foreign surveillance affirms the 1968 congressional action that put intelligence-gathering in the hands of the executive branch, said Robert F. Turner, co-founder of the Center for National Security Law at the University of Virginia School of Law.

Besides the Katz and Keith rulings, the court opted not to consider four other cases regarding foreign surveillance - in effect upholding their earlier rulings.

"The Supreme Court had six opportunities to say something on this and didn't," Turner told Cybercast News Service . "There is a long history of Congress having nothing to do with intelligence and the courts have long excluded themselves."

Among the notable cases not to be decided by the U.S. Supreme Court was United States v. Truong Dinh Hung , decided by the U.S. Fourth Circuit Court of Appeals in 1980. The court upheld the government's right to use a wiretap without a warrant for intelligence gathering, but not for criminal prosecution.

In its opinion, the court said always requiring a warrant would "in some cases delay executive response to foreign intelligence threats," and said the executive could be excused from securing a warrant when "the object of the search or surveillance is a foreign power, its agent or collaborators."

Nonetheless, in January, the Bush administration announced it would seek to comply with the FISA law in what the president called the "terrorist surveillance program" and what critics called "the NSA eavesdropping program."

The Senate intelligence committee approved a FISA bill earlier this month that would give immunity from lawsuits to telecommunications companies that assisted the government in data-mining.

However, some Democrats led by Sen. Chris Dodd (D-Conn.) are trying to block the bill from coming to a vote in the full Senate.

"The president has no right to secretly eavesdrop on the conversations and activities of law-abiding American citizens, and anyone who has aided and abetted him in these illegal activities should be held accountable," Dodd, a presidential candidate, said in a statement.

"It is unconscionable that such a basic right has been violated, and that the president is the perpetrator. I will do everything in my power to stop Congress from shielding this president's agenda of secrecy, deception and blatant unlawfulness," Dodd added.

Sen. Christopher "Kit" Bond (R-Mo.), ranking Republican on the Senate intelligence committee, said immunity is needed to encourage telecommunications companies to cooperate with the federal government during the war on terror.

He said lawsuits "with allegations and pleadings and other things could only open up more information" for the terrorist to exploit.

Further, Bond also had his doubts that the Fourth Amendment was applicable when the executive branch is gathering intelligence for national security reasons.

"I believe Article 2 of the Constitution gives the president important powers over foreign affairs, including - as the courts have recognized - the authority to use methods to collect foreign intelligence, which may otherwise be impeded by the Fourth Amendment," Bond told Cybercast News Service .

"Jimmy Carter's administration intercepted Truong's communications. Bill Clinton used his Article 2 powers in the Aldrich Ames (spy) case to conduct warrantless search of Aldrich Ames's house," Bond continued.

"However, because of the concerns raised by Democrats on the House and Senate side and our friends in the media, the president in January of this year said he would conduct the terrorist surveillance program in accordance with the FISA law," he added.

Leaving intelligence gathering completely up to the executive branch would violate a key principle of separations of power, said Tim Lee, adjunct scholar with the Cato Institute, a libertarian think tank.

"The line is traditionally drawn that surveillance on American soil requires a warrant. Surveillance outside the borders is not subject to American courts," Lee told Cybercast News Service .

"We really don't know what the Bush administration is doing. You don't let the executive branch unilaterally decide what international terrorism is. The concern with that is if the White House thinks getting a warrant is too much work through the courts, they'll just call someone a terrorist," he added.

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