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Can FISA Keep Up With the Terrorism Threat?

The Foreign Intelligence Surveillance Act (FISA), passed in 1978 after revelations of domestic surveillance abuses during the Kennedy, Johnson and Nixon administrations, designated a secret court to approve warrants for domestic surveillance. Since 9/11, however, there's been criticism that FISA is not flexible enough to keep up with the terrorism threat. Some experts from FRONTLINE's report weigh in on the debate.

James Baker
Counsel for intelligence policy, Justice Department (2001-present)

Has the FISA law, has the FISA court kept up with the times? Can it work in the 21st century?

In my opinion FISA works. It worked in the 20th century; it works today. Congress said when it enacted FISA in the legislative history, it said that no means of collection are barred by the statute. In other words, they wrote the statute to have the flexibility to allow us to collect any type of communications or information that meets the requirements of the statute. There's no type of collection that's prohibited by the statute. That's point number one.

I also think that FISA works in the 21st century because, as you know, the government recently filed applications with the FISA court regarding the terrorist surveillance program.

The president's [warrantless wiretapping] program.

Yes. So the FISA court approved those, and we think that the approval gives us the necessary speed and agility that we need today to fight the war on terror. ...

The third thing is FISA works because the information that you collect from FISA can be disseminated widely within the intelligence community, assuming that it meets the requirements of the statute and it can be used as evidence in a criminal case. So there is a certainty with respect to the legitimacy of the information that's collected with respect to FISA. ...

I think it's important to remember, for example, that the Fourth Amendment, one of the cornerstones of our liberty and of our Constitution, was written by people who had never seen a light bulb. So obviously lots of things have changed since the 18th century, and I don't believe the people are seriously debating whether the Fourth Amendment needs to be changed today. ...

Let me just break that down for a moment. We've talked to a lot of people in the intelligence community, and some of them will say, "FISA moves too slow; it's too cumbersome." You deal with it day in and day out. Does it move too slow?

... We respond to the needs and the requirements of the intelligence community on a day-to-day basis, and part of the challenge is to make sure that we have a robust interaction with the intelligence community so that we can prioritize our work effectively and efficiently according to what they need. Urgent cases, emergency cases, cases that meet the requirements of the statute go through the system extremely quickly.

Sometimes when folks are concerned about what's happening with the statute that's moving too slowly, that may be because they're viewing it from the perspective of their particular case, and their particular case may not be the higher-priority case for the intelligence community. We adjust our resources accordingly.

You say emergency cases can be handled rapidly. How fast is fast?

There's a provision under FISA that allows the attorney general to approve an emergency surveillance or search without a court order for periods of up to 72 hours. The agencies know about this. We work with them on this all the time, and when they assess that they need to resort to that provision, they contact us right away. …

You've described a process that is agile, flexible, fast and capable of dealing with the modern communications challenge. Gen. [Michael] Hayden, former head of the NSA, said they had to do the [warrantless wiretapping] program independently because he needed speed and agility. How do you reconcile that?

Well, as the attorney general [Alberto Gonzalez] has said, we now have taken the terrorist surveillance program under FISA, so there's a FISA order now that has replaced the president's authorization. The assessment of the executive branch, the intelligence agencies, the Justice Department is that the new system provides us with the speed and agility that we need just as Gen. Hayden was describing.

However, the attorney general has also said that it took us some time to get there and that we'd been working on this now for a couple of years, even before there was the disclosure in the press about the program. The applications that we filed are innovative. They're also complex. It took us a while to figure out how we were going to do this type of collection under the existing FISA statute without having it amended, and so it was a challenge; it took us time. We had five years of experience with dealing with Al Qaeda. We had five years of building up the law before the FISA court, building up precedents, getting to where we needed to be to be able to file this application, have the court consider it and then have them approve it.

John Yoo
Deputy assistant attorney general, Office of Legal Counsel, Justice Department (2001-2003)

I think the biggest problem with FISA is that it's rooted in the mind-set of the law enforcement system: primarily, you need reasonable suspicion that someone is a terrorist; you really need to have information; you really need to have something that person did already that point[s] him out as a terrorist. That prevents the government from certain kinds of data mining or trying to search communications for key words, from trying to correlate key patterns of activity that may have a high probability of being linked to terrorist activity. But when you don't already have somebody's name, you already don't have it attached to somebody you think is a terrorist, then you need to be able to do that, to be able to predict and stop future terrorist attacks by people who may not already have committed a crime, may not already be known terrorists.


John Ashcroft
Attorney general (2001-2005)

The FISA court was never intended to be exclusive or all that could be done to defend the country in time of peril. It was, at its enactment, an effort to try and bring a way of handling circumstances that was safeguarded and that had the supervision of federal judges in the process. I think it succeeded at that.

Now, there were obvious deficits in the capacity of the FISA court to operate, and that related to technology, and the idea of the roving wiretap, again, is the best example of that. It needed to be updated; it was updated in the Patriot Act. There were other things that came as a result of the FISA court and its rulings, and other courts and their rulings, which divided the intelligence community from the law enforcement community, and they needed revision and renovation. ...

Gen. Hayden has said that the FISA court or the FISA process wasn't adaptable, wasn't flexible enough. [Do you agree?]

If people think the FISA court provided all of the authority that a president would ever have to defend the country, I think it's pretty clear that it's not adaptable enough; it's not flexible enough.

The FISA court [was] intended to be a court that would deal with foreign powers and agents of foreign powers. Now there are a variety of other potential threats to our nation's existence that from time to time may require other kinds of activity. That other kind of activity has been undertaken by presidents from the very beginning of the republic and certainly during my lifetime.

Peter Swire
Chief counsel for privacy, Executive Office of the President at the Office of Management and Budget (1999-2001)

There are people who argue that in today's communications world, you can't live under the old rules. FISA's broken; the old Anglo-Saxon principles don't work anymore. What's your response?

My response is in every generation the government wants to know everything about its citizens, and if you set up a secret police to listen to all the ordinary people, it's a bad way to go. ...

New world; mass communications; terrorists among us; homeland is the battleground; the president is commander in chief. None of that persuades you?

Let's look individually. Are there specific tailored problems? [Then] you fix it. But the president during the Civil War, during World War I, during World War -- in all the periods in history, presidents want more power. It's normal. It makes their life easier. They can achieve their goals better. But our American job back is to say, "Checks and balances." And that's what been lost in the last several years.

Michael Woods
Attorney, national security division, FBI (1999-2002)

FISA can't keep up with the technology of the modern era and can't keep up with the threat of the modern era. ... I'm just wondering from the standpoint of the FBI, is that true? ...

I don't believe so, and here's why: There are really a very, very small group of people in the government who have significant practical experience using FISA. What I often tell people I'm teaching is there are a lot more people in the government that talk about FISA than ever come close enough to see how it actually operates. ...

The technology doesn't necessarily defeat FISA. It is certainly harder to work with it, but our criminal statutes were written in the same era. They are no closer to being up to date. If you are going to have a system of laws, you have to deal with a situation in which the law doesn't keep pace. The law is never going to keep pace with the technology. I think the only hope is to write the law in a way that is adaptable enough. And to me that was one of the strengths of FISA. You had the law, but you also had a court who could work with the individual case and try to accommodate it. …

FISA is a tool largely for targeted surveillance. It doesn't necessarily require that I have to know precisely the individual that I am targeting, but I have to be able to describe my target with some particularity. It is not a tool that is written for broad collection of information, because when it was written, and I think to some extent now, the general belief is that's not something we want to be doing inside the United States. ...

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posted may. 15, 2007

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