Truth About FISA Power & National Security

Bush claims he needed all this extra power to protect us, yet there is already in place a mechanism to do such secret domestic wiretaps if needed, and many regard even THAT as too much power for government to wield fairly.

This process involves going to what us known as a FISA (Foreign Intelligence Surveillance Act) Court. Indeed in 2003, the American Bar Association adopted a resolution calling on Congress to conduct more strict oversight on the FISA courts process, to ensure that they did not violate Constitutional protections guaranteed to the American people. The the FISA process alone is so outside the normal system of American jurisprudence, it had them worried.

Under the Fourth Amendment, a search warrant must be based on probable cause that a particular crime has been or is being committed. This is not the rule under FISA. Government surveillance under FISA is permitted solely based on whether the surveillance target is a foreign power or an agent of a foreign power, irrespective of whether the target is suspected of engaging in criminal activity. However, if the target is a U.S. citizen, there must be probable cause to believe that the U.S. person's activities may involve espionage or other similar conduct in violation of the criminal statutes of the United States. Nor may a U.S. person be determined to be an agent of a foreign power "solely upon the basis of activities protected by the first amendment to the Constitution of the United States," such as lawful protest activities.

FISA established a special court -- the Foreign Intelligence Surveillance Court (FISC) -- composed of seven federal district court judges appointed by the Chief Justice for staggered terms and from different circuits. Individual judges of the FISC review the Attorney General's applications for authorization of electronic surveillance aimed at obtaining foreign intelligence information. The FISC meets two days monthly.

A FISA application must contain:

• a statement of reasons to believe that the target of the surveillance is a foreign power or agent of a foreign power;
• a certification from a high-ranking executive branch official stating that the information sought is deemed to be foreign intelligence information, and that the information sought cannot reasonably be obtained by normal investigative techniques;
• statements regarding all previous applications involving the target;
• detailed description of the nature of the information sought and of the type of communication or activities to be subject to the surveillance;
• the length of time surveillance is required;
• whether physical entry into a premises is necessary, and proposed procedures to minimize the acquisition, use, and retention of information concerning nonconsenting U.S. persons.

The FISA law establishes a separate legal regime for "foreign intelligence" surveillance. And it's power has grown with time. At first, it was limited to electronic eavesdropping and wiretapping. In 1994 it was amended to permit covert physical entries in connection with "security" investigations. 1998, it was amended to permit pen/trap orders. Then FISA Court was allowed to obtain some business records.

Moreover, it's not like these secret courts aren't giving government requests enough deference to the requests to where additional powers would even be required by the Executive. The fact is, the FISA Court has, in over 18,742 requests since 1978, only rejected 4 requests for wiretap.

But all this wasn't enough for old George.

Better?

He's made the argument that for the sake of immediacy, if an attack is pending, they need to have the power to skirt the FISA court altogether. But this argument is highly specious because AGAIN, a mechanism is already in place for such an eventuality. If there is and urgent matter, the government is allowed to wiretap WITHOUT a FISA warrant for up to 72 hours.

So Bush had all the power he needed to do his job, but he just wanted MORE.

Republican Congressman Dana Rohrbacher made the statement that "If it was up to [critics of the President's use of power], they probably would have blown up the Brooklyn Bridge. The bottom line is this: in wartime we expect our leaders, yes, to exercise more authority."

Which interested me, because President Clinton actually DID thwart a plot to blow up the George Washington Bridge back in the early 90's, as well as:

• The Millennium plot to blow up 12 U.S. jetliners simultaneously
• The plot to blow up UN Headquarters;
• The plot to blow up FBI Headquarters;
• The plot to blow up the Israeli Embassy in Washington;
• The plot to blow up Boston airport;
• The plot to blow up Lincoln and Holland Tunnels in NY;
• The plot to blow up the Los Angeles airport LAX;
• The plot to blow up the Seattle Space Needle, and;
• The plot to blow up the US Embassy in Albania.

And he didn't seem to need all these extra powers to do it.

So why can't Bush?

Oh that's right.... he's as incompetent as Brownie.