What Really is at Stake with the FISA Amendments Act of 2008 and Ideas for Future Surveillance Reform
Stephanie Cooper Blum
Department of Homeland Security ; Michigan State University
May 4, 2009
Boston University Public Interest Law Journal, Spring 2009
The need to reconcile domestic intelligence requirements with the protection of civil liberties is a recurring and prominent theme in the war on terror. While this tension between domestic intelligence gathering and civil liberties can be seen in many contexts since 9/11, this Article focuses on the Bush administration’s Terrorist Surveillance Program (TSP), where the National Security Agency (NSA) secretly wiretapped Americans without traditional Foreign Intelligence Surveillance Act (FISA) warrants and the resulting FISA reform legislation culminating in the FISA Amendments Act of 2008 (FAA). In July 2008, the American Civil Liberties Union (ACLU) filed suit against the FAA arguing that it is unconstitutional; this Article, however, argues that the FAA is most likely lawful and appears to be a nuanced compromise between the legitimate need to expeditiously gather intelligence against terrorists and the protection of Americans’ civil liberties. In order to draw this conclusion, it is necessary to understand what traditional FISA requires, how the TSP program departed from that rubric, and how advances in technology and the nature of terrorism have impacted intelligence gathering.
Part I of this Article analyzes the legal framework of domestic spying and discusses the Fourth Amendment, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, FISA, and changes made to FISA with the USA Patriot Act. Part II analyzes the Bush administration’s warrantless surveillance program and whether, and to what extent, it violated the law. Part III discusses the challenges posed by terrorism to intelligence gathering and the need for modifications to FISA. Part IV analyzes the FAA of July 2008 and ponders whether it is just the perception that civil liberties could be eroded, or whether Americans’ civil liberties truly are at risk. Finally, in Part V, this Article argues that in some ways the FAA has not gone far enough in addressing the underlying problems with conducting surveillance of terrorists and suggests areas for future reform.
Number of Pages in PDF File: 68
Keywords: Foreign Intelligence Surveillance Act (FISA), FISA Amendments Act (FAA), Terrorist Surveillance Progam, FISA reform
Date posted: May 7, 2009 ; Last revised: August 10, 2009
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