Prior to the American revolution, British soldiers were allowed to write their own warrants. They'd stand outside someone's home, write a warrant, and then enter the premises. Thus, the Bill of Rights included the 4th Amendment. This Amendment states: "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." This is one of the legs that support the argument that the Bill of Rights protects our right to privacy.
The investigation of the Watergate break-in brought to light the violations by President Richard M. Nixon of the 4th Amendment in ordering the FBI and the CIA to electronically monitor his political adversaries. His famous statement, "When the president does it, that means it is not illegal," keeps resonating with us as we watch the Bush administration break the law over and over again. Obviously Bush, Cheney, and the whole crew adhere to Nixon's belief. This is not surprising considering that Cheney and Rumsfeld came out of the Nixon administration. They hold the 4th Amendment in contempt. But I digress. The point here is that it was the illegal surveillance by Nixon that led to the Foreign Intelligence Surveillance Act (FISA) in 1978.
FISA was set up for national security, not for criminal investigations. It required that no electronic surveillance may occur by anyone in the government at any time under any circumstances for any reason other than in accordance with law and the 4th Amendment. It's been widely interpreted by the courts that search warrants can only be authorized by the courts after government agents, under oath, convince them that it is likely that the things to be seized are evidence of crimes. This is "probable cause." FISA also set up the Foreign Intelligence Surveillance Court (FISC). Government agents had to show that the target of the warrant was an agent of a foreign government. In order to act quickly, FISA allowed that wiretaps could be put in place and agents then have 72 hours to get the warrant. It did not apply to wiretaps targeted at foreign nationals abroad, only when the target was a citizen or permanent resident of the U.S. or when the surveillance was obtained from a wiretap physically located within the U.S.
FISA was directed at "foreign powers," but it did allow for FISA-obtain information to be used in criminal trials if certain procedures were used to "minimize" the collection of the information about U.S. persons. These requirements were meant to prevent using FISA for criminal investigations.
FISA also permitted electronic surveillance without a court order. The Attorney General was allowed to authorize electronic surveillance without a court order for up to 1 year if he certified in writing and under oath that it was solely directed to communications between or among foreign powers or it was directed at "the acquisition of technical intelligence from property or premises under the open and exclusive control of a foreign power." The Attorney General need only certify this to FISC.
In 1994 FISA was amended to permit covert searches. In 1998 it was amended again to permit "pen/trap orders." A pen register collects outgoing phone numbers placed from a specific telephone line. A trap and trace device captures the incoming numbers placed to a specific telephone line.
In 2004 Congress passed the U.S.A. Patriot Act. This was passed hastily and 16 of its most contentious provisions were set to expire on December 31, 2005. On December 22, 2005 the Act was not renewed but was extended to February 3, 2006. It was extended again on February 1st to March 10th. On March 9, 2006, 14 of the 16 sections were made permanent. The other 2, the most contentious, were extended for 4 years.
The Patriot Act included the "Lone Wolf" provision -- where "agent of a foreign power" was redefined to include any person who "knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power." Therefore, surveillance and physical search orders could be issued without having to find a connection between a "lone wolf" and a foreign government or terrorist group.
It also amended FISA to expand the use of National Security Letters (NSLs) -- warrants that need not be approved by a FISA judge -- from only against "foreign agents" to being used against U.S. residents and visitors suspected to be terrorists or spies. The fact that NSLs can be issued by FBI field supervisors with no oversight, for any reason whatsoever, is one of the highly criticized provisions. The use of "sneak and peek" warrants were extended to any criminal search, not just for foreign intelligence. FISA had allowed for obtaining business records "for the purposes of conducting foreign intelligence" on a target "linked to foreign espionage" and on an "agent of a foreign power." The Patriot Act changed this to require only that the FBI certify to a FISC judge (no need for evidence or probable cause) that the search protects against terrorism. Also, the target of a search doesn't have to be a terror suspect, so long as the government's purpose is "an authorized investigation . . . to protect against international terrorism." And now searches may be done in secret -- the so-called "gag" order. Unfortunately, the subject of the search need not be suspected of any involvement in terrorism. They don't even have to name a particular person but may encompass an entire collection of data related to many individuals, such as the records of an Internet service provider. The application must specify that the records are sought for an authorized investigation, but the judge only has to determine that the FBI "says" it's for an "authorized investigation." The applications do not have to be under oath and it doesn't require that they be in writing.
FISA originally said that "probable cause" had to be demonstrated to get warrants or perform "pen/trap" based on the "primary purpose" of the search or wiretap for "foreign intelligence," except in very few cases. The target had to be linked to "foreign intelligence." American citizens would not be searched or wiretapped unless they were "agents of a foreign power." The Patriot Act expanded it so that FISC can approve warrants if the purpose is "significant" rather than "primary." Also, prior to the Patriot Act, information gathered from secret searches could not be used for prosecution. The Patriot Act amended FISA so that the information gathered can be passed along for prosecution purposes.
One of the most frightening provisions of the Patriot Act is Section 802 which creates a new category or crime called "domestic terrorism" and defines it as acts "dangerous to human life" if the actor's intent is to "influence the policy of a government by intimidation or coercion." This appears, on its face, to be intended to intimidate civilians.
Last August, after it came to light that a FISC judge had issued a secret ruling that "the government had overstepped its authority" in surveilling communications between 2 locations overseas that passed through U.S. routing stations, Congress passed the Protect America Act. Their original bill, worked out with Mike McConnell, the Director of National Intelligence, addressed some of the technical issues while still imposing oversight on the Executive branch. Bush would have none of it and so Congress gave him what he wanted. The Protect America Act gives the Attorney General and the Director of National Intelligence the power to approve international surveillance rather than FISC. The court's only role is to review and approve procedures used by the government in the surveillance after it has been conducted. It will not scrutinize the cases of the individuals being monitored. In other words, the Protect America Act sets up oversight of the program by the people who run it.
It is the Protect America Act that expired last week. While the House was willing to acquiesce and make the Act permanent, even with all its problems, Bush insisted that it include retroactive immunity for the telecommunication companies who have cooperated with his administration in conducting illegal surveillance and are being sued for their law-breaking. The Senate caved in and gave him what he wanted, but the House, so far, as stood firm. Let's hope they keep their stance. Most of the provisions of the Patriot Act and the Protect America Act are bastardizations of the intent of FISA and serve only to violate the 4th Amendment to the Constitution.