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Constitutional & Legal Issues

Foreign Intelligence Surveillance Act

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Cinquegrana, Americo R.

1. "FISA: A Reformist Success Story." Foreign Intelligence Literary Scene 8, no. 6 (1989): 1-2, 11-12.

2. "The Walls (and Wires) Have Ears: The Background and First Ten Years of the Foreign Intelligence Surveillance Act of 1978." University of Pennsylvania Law Review 137 (Jan. 1989): 793-828.

Cole, Jared P., and Andrew Nolan. Reform of the Foreign Intelligence Surveillance Courts: A Brief Overview. Washington, DC: Congressional Research Service, Library of Congress, 31 Mar. 2014. [http://www.fas.org/sgp/crs/intel/R43451.pdf]

"[S]everal legislative changes to the government's intelligence operations authority have been suggested.... Some have proposed altering the underlying legal authorities relied on by the government when applying to the FISC, while others have suggested changes to the practices and procedures of the FISA Courts. This report provides a brief overview of the legal implications of the latter group of proposals."

Dillin, John. "Congress Quietly Debates Merits of Warrantless 'Spy' Searches." Christian Science Monitor, 31 Aug. 1994, 2.

Doyle, Charles. "Memorandum to Senate Select Committee on Intelligence: Probable Cause, Reasonable Suspicion, and Reasonableness Standards in the Context of the Fourth Amendment and the Foreign Intelligence Surveillance Act." Washington, DC: American Law Division, Congressional Research Service, Library of Congress, 30 Jan. 2006. [http://www.fas.org/sgp/crs/intel/m013006.pdf]

"Probable cause is [a] bit different under FISA. Ordinarily, probable cause speaks to the probability of the existence of a certain fact.... FISA authorizes issuance of a surveillance or search order predicated upon the probability of a possibility; the probability to believe that the foreign target of the order may [italics in original] engage in spying, or the probability to believe that the American target of the order may [italics in original] engage in criminal spying activities. [citations omitted] But it is the predicate not the standard that is changed. The probable cause standard [italics in original] is the same in FISA as in a criminal context: would a prudent individual believe that a fact is probably true. It is the focus that is different. Would a prudent individual believe that spying may occur."

Eggen, Dan. "High Court Won't Rule on Terror Surveillance." Washington Post, 25 Mar. 2003, A3. [http://www.washingtonpost.com]

On 24 March 2003, the U.S. Supreme Court declined to allow civil liberties advocates to intervene in the argument over "whether the government had gone too far in permitting information gathered with secret Foreign Intelligence Surveillance Act warrants to be used in criminal prosecutions.... The dispute revolves around powers granted ... as part of the USA Patriot Act.... The court that oversees government spying, the Foreign Intelligence Surveillance Court, ruled last year that the government was overstepping its bounds.... But the FISA appellate panel ... overturned that ruling in November, concluding that the government was free to implement more aggressive tactics in conducting searches and surveillance of suspected terrorists."

Eggen, Dan, and Dafna Linzer. "Judge Rules Against Wiretaps: NSA Program Called Unconstitutional." Washington Post, 18 Aug. 2006, A1. [http://www.washingtonpost.com]

Judge Anna Diggs Taylor of the U.S. District Court of Eastern Michigan ruled on 17 August 2006 that NSA's "warrantless surveillance program is unconstitutional." Judge Taylor "ordered a halt to the wiretap program..., but both sides in the lawsuit agreed to delay that action until a Sept. 7 hearing.... The eavesdropping program ... allows the NSA to intercept telephone calls and e-mails between the United States and overseas without court approval in cases in which the government suspects one party of having links to terrorism." See also, Adam Liptak and Eric Lichtblau, "U.S. Judge Finds Wiretap Actions Violate the Law," New York Times, 18 Aug. 2006.

Jaeger, Paul T, et al. "The Impact of the USA Patriot Act on Collection and Analysis of Personal Information Under the Foreign Intelligence Surveillance Act." Government Information Quarterly 20. no. 3 (Jul. 2003): 295-314.

La Bella, Charles G. "Foreign Security Surveillance -- Balancing Executive Power and the Fourth Amendment." Fordham Law Review 45, no. 5 (Apr. 1977): 1179-1201.

Lichtblau, Eric. "Judges on Secretive Panel Speak Out on Spy Program." New York Times, 29 Mar. 2006. [http://www.nytimes.com]

On 28 March 2006, five former judges on the Foreign Intelligence Surveillance Court, "including one who resigned in apparent protest over President Bush's domestic eavesdropping, urged Congress ... to give the court a formal role in overseeing the surveillance program.... [S]everal former judges who served on the panel also voiced skepticism .... about the president's constitutional authority to order wiretapping on Americans without a court order."

Liu, Edward C. Amendments to the Foreign Intelligence Surveillance Act (FISA) Extended Until June 1, 2015. Washington, DC: Congressional Research Service, Library of Congress, 16 Jun. 2011. [ http://www.fas.org/sgp/crs/intel/R40138.pdf]

"On May 26, 2011, in the face of imminent expiration, three amendments to the Foreign Intelligence Surveillance Act (FISA) were extended until June 1, 2015.... Two amendments were enacted as part of the USA PATRIOT Act.... The third amendment was enacted in 2004, as part of the Intelligence Reform and Terrorism Prevention Act (IRTPA)."

New York Times. "[Editorial:] Spying on Americans." 2 May 2007. [http://www.nytimes.com]

President Bush "has submitted a bill that would enact enormous, and enormously dangerous, changes to the 1978 law on eavesdropping. It would undermine the fundamental constitutional principle ... that the government must seek an individual warrant before spying on an American or someone living here legally." DNI Michael McConnell said on 1 May 2007 "that the evidence of what is wrong with FISA was too secret to share with all Americans. That's an all-too-familiar dodge.... The measure would not update FISA; it would gut it.... This is a dishonest measure, dishonestly presented, and Congress should reject it."

Stevens, Gina Marie, and Charles Doyle. Privacy: An Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping. Washington, DC: Congressional Research Service, Library of Congress, 3 Dec. 2009. [http://www.fas.org/sgp/crs/intel/98-326.pdf]

"This report provides an overview of federal law governing wiretapping and electronic eavesdropping. It also appends citations to state law in the area and contains a bibliography of legal commentary as well as the text of the Electronic Communications Privacy Act (ECPA) and the Foreign Intelligence Surveillance Act (FISA)."

Stolz, Barbara Ann. "The Foreign Intelligence Surveillance Act of 1978: The Role of Symbolic Politics." Law & Policy 24, no. 3 (Sep. 2002): 269-298.

From Abstract: "Since 1978, the Foreign Intelligence Surveillance Act (FISA) has governed United States intelligence gathering for national security purposes.... FISA established a statutory framework for national security surveillance. Understanding FISA contributes to the study of criminal justice policymaking because law enforcement and intelligence communities view it as an important tool for combatting espionage and terrorism. This article examines the enactment of FISA from the perspective of symbolic politics."

U.S. Congress. Senate. The Foreign Intelligence Surveillance Act of 1978: The First Five Years. Report 98-660, 98th Cong., 2d sess. Washington, DC: GPO, 1984.

This report discusses, among other topics, the court challenges to FISA. In particular, see United States v. Falvey, 540 F.Supp. 1306, 1314 (E.D.N.Y. 1982); United States v. Megahey, No. 83-1313, 2d cir, 8 Aug. 1984; and United States v. Belfield, 692 F.2d 141 (D.C. Cir. 1982).

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