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Foreign Intelligence Surveillance Court: Us Foreign Intelligence Surveillance Court
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Those provisions allowed the counterintelligence components of DOJ and the FBI to work in a coordinated manner with their criminal component counterparts to protect against hostile acts and clandestine intelligence activities by foreign powers. On the other hand, the Court’s substitute language prohibited action by the counterintelligence component at the recommendation or request of the criminal component to initiate, operate, continue, or expand FISA surveillances or searches. In addition, the Court directly foreclosed the use of FISA procedures to enhance criminal prosecutions.16 DOJ did not appeal the FISC’s memorandum opinion and order. Rather, it awaited the FISC’s application of the new minimization standards and the imposition, consistent therewith, of restrictions on the government’s use and sharing of FISA information. That occurred during the summer of 2002 when DOJ sought the FISC’s approval for a renewal of electronic surveillance authority in a particular case. DOJ’s application sought to have the Court impose the Attorney General’s new minimization standards; consistent with its earlier memorandum opinion... the FISC rejected DOJ’s request and retained the more-restrictive earlier minimization standards.
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There exists in Washington D.C. a highly secretive court called the US Foreign Intelligence Surveillance Court. Responsible for deciding when a politically dangerous wiretap is appropriate, this branch of the US government is located on the 6th floor of the Justice Department building. Housed in a lead-enclosed vault (to prevent bugging), this organization is not listed as a official government sector. The Federal government will not acknowledge its existence or where it is located. Its court decisions are never published. The only public information disclosed about this organization is found in a annual 2 sentence report – the number of wiretaps requested, and the number of wiretaps granted.
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Worse, the judge clearly failed to do enough homework to understand the Foreign Intelligence Surveillance Act itself, much less the Fourth Amendment. She gets basic provisions of the statute itself wrong, e.g., apparently believing that a provision explicitly dealing with foreign agent/non-U.S. persons communications constitutes an “exception” to FISA’s warrant requirements. She ... seems to make the elementary and fatal mistake made by many commentators, that the government can, under FISA, listen in on conversations for 72 hours without meeting FISA’s substantive and procedural tests. This is simply false. NSA cannot lawfully, under FISA, listen to a single syllable of a covered communication until it can prove to the Attorney General (usually in writing) that it can jump through each and every one of FISA’s procedural and substantive hoops.
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While the FISC was established to be the watchdog for the Constitutional rights of the American people against domestic surveillance, it quickly became the lap dog of the intelligence agencies. Surveillance requests that would never receive a hearing in a state or federal court are routinely approved by the FISC. This has allowed the FBI to use the process to conduct surveillance to obtain evidence in circumvention of the US Constitution, and the evidence is then used in subsequent criminal trials. But the process established by Congress and the courts ensures that information regarding the cause or extent of the surveillance order is withheld from defense attorneys because of the classified nature of the court.<42> Despite Congress’s initial intent for the FISC, it is doubtful that domestic surveillance by means of ECHELON comes under any scrutiny by the court.
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The Foreign Intelligence Surveillance Act was approved by Congress earlier this month to help the National Security Agency in the fight against terrorism. But it has now emerged that the bill gives the security services powers to intercept all telephone calls, internet traffic and emails made by British citizens across US-based networks.
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There was concern from the beginning that government agents would use FISA orders to circumvent the Fourth Amendment’s warrant requirement by using foreign intelligence investigations as a pretext for gathering evidence for use in domestic criminal prosecutions. Accordingly, FISA required that intelligence gathering be the “primary purpose” of a FISA wiretap order. Prior administrations established a “wall” separating intelligence gathering from criminal prosecutions, and previous court decisions, including one from the conservative Fourth Circuit Court of Appeals, established that the Fourth Amendment required the “wall.”
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Us Foreign Intelligence Surveillance Court