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Since its inception, the US constitution has drawn more attention than any other constitution across the entire globe. The attention stems from the fact that the constitution was put together by individuals who were committed to ensuring that the country’s legislature was an embodiment of freedom driven by the desire to be different from oppressive regimes. The United States has been compelled to enact protective legislation that seeks to safeguard its national security and its people. A prime example of such legislation is the Foreign Intelligence Surveillance Act of 1978 (FISA). The Act has elicited ambivalent reactions from both within and outside the US. This paper thus examines the Act critically from two distinctive positions, viz. based on the premise that the Act is still relevant and can serve adequately in contemporary times, and based on the premise that it has been overtaken by time and needs to be overhauled.
A Synopsis of FISA
The Foreign Intelligence Surveillance Act (FISA) came to be in 1978 as a move by the US Congress to safeguard individual privacy rights of Americans. FISA currently allows the US government to survey electronically or physically search any communication to or from its territory as well as within its territory so that it can monitor activities of foreigners with interests in the US (Jordan, 2006). The Act has evolved throughout its history to become an effective tool for gathering foreign intelligence and not just to monitor and stop terrorist schemes in the offing. The Act established a secret court, FISC, which determines if requests for surveillance or search warrants are adequately reasonable before issuing the warrants (Breglio, 2003). The court carries out its proceedings completely hidden from the public and does not release any information concerning its proceedings to the public.
FISA, an Optimistic Perspective
Many developments have occurred since FISA was enacted. The developments aim at expanding the mandate of the legislation and strengthening it so that it can better serve the US government. Some of the major developments that have been witnessed include the incorporation of physical searches in addition to electronic surveillance in a 1995 amendment and incorporation of pen registers and trap and trace devices that assist in investigating terrorism activities within the US in 1998 (Breglio, 2003). The Act has undergone over fifty changes since its inception (Jordan, 2006). This aspect has placed the US government in a position where it is forced to prove beyond doubt that there is a compelling need for intelligence surveillance whenever it seeks to engage in one. The government is required to prove the likelihood that the target’s threat to national security before it is free to carry out intelligence surveillance legally (Anzaldi & Gannon, 2010).
The Act was drafted such that even the president cannot directly order intelligence surveillance unless the due process is followed. This characteristic of the Act pitches it as legally self-governing, thus eliminating any chances of abuse by the government or any of its components. Guidelines that inform the operation of the Act thus ensure that it can only be used legally. It protects itself from being brandished by sadistic characters who seek to draw gratification from causing foreign authorities to discomfort without reasonable cause.
From a political perspective, FISA has enabled the US to hold firm its position as a world superpower with relatively minimal international conflicts. Foreign superpowers seeking to draw information from the US and use it against the government find it extremely difficult to accomplish such acts (Political Transcript Wire, 2007). Ironically, this aspect has served to maintain cordial relationships between the US and foreign powers. This happens in the sense that the foreign powers are fully aware that any attempt at undermining the US government or seeking its vital government information will be unveiled. The foreign powers are thus motivated to keep off the affairs of the US and its citizens. This grants the US government political stability, which stems from the fact that although it is vulnerable from attacks from foreigners, the likelihood of such an attack occurring without the government’s knowledge is greatly minimized.
Considering FISA from a moral perspective often spurs heated debates. Many have posited that surveying people or countries’ private communication or affairs is not morally correct. However, the US government has to do all within its power to deliver a secure and economically enabling environment for its citizens. Notably, most threats to US national security come from foreigners (Anzaldi & Gannon, 2010). It would thus be irresponsible for the US government to pretend to purport that it upholds morals by keeping off private information that is significant to national security. If all governments could enact legislation similar to FISA, the world would be a safe and secure place because every government will be aware that its activities in foreign territories are closely monitored and so keep off sensitive areas (Anzaldi & Gannon, 2010).
FISA, a Pessimistic Perspective
The Foreign Intelligence Surveillance Act has been touted as a failure due to the occurrence of many incidents that threaten the lives and even lead to the demise of many Americans. A prime example of such incidents is the terrorist attacks of September 11 (Breglio, 2003). This incident took place long after the Act had been beefed up with additional provisions, which aimed at making it more vigilant. The attack instigated a plethora of further protective measures by the US government, such as the enactment of the US Patriot Act (Breglio, 2003). However, the additional measures only served to worsen the situation.
Whenever the FISA court issues an intelligence surveillance search warrant, it is accompanied by a gag order, which restrains the targeted individual from disclosing the information to anyone except his/her lawyer (Anzaldi & Gannon, 2010). It leaves the individual with no option but to remain silent, which again breaches the individual’s freedom of speech, but with nowhere to turn to. In a legal sense, FISA has acted a pass for the US government to trample on fundamental human rights of its citizens and other persons residing both within and outside the US territory.
Politically, FISA has increasingly placed the US government in the limelight for the wrong reasons. Although the US government has made it appear to the international community that it seeks warrants for it to intercept the communication, the truth is that the US government intercepts even foreign to foreign communication without warrants (Jordan, 2006). This element has the potential to severe relationships between the US and other governments across the world, as has already been witnessed when the EU expressed disquiet over the US spying on international communication via both phones and the Internet.
The bad blood between the US and the Eastern world has been worsened by FISA in the sense that the US government can access vital information from such nations and does not shy away from using such data to make statements or take actions that make it clear that it has been eavesdropping. Such actions have had negative political implications in the sense that even though the US is a superpower, which many countries shy from facing directly, the actions propagate a general hatred towards the country and its citizens. The hatred may, in turn, have negative economic implications for the country.
In a moral sense, it is irresponsible for the US government to monitor communication around the entire world in the pretext of gathering intelligence. At the same time, its citizens remain increasingly conscious of the fact that they are vulnerable to terrorist attacks. FISA was formulated many years back, and even though it has undergone several facelifts to make it commensurate with contemporary communication technology, it is still not enough. The US is a world leader in many realms. As such, it should approach the issue of foreign intelligence with its technological prowess, which will enable it to only intercept what it needs to intercept but have nothing to do with world communication and especially that which has nothing to do with the US. The fact that the NSA can intercept and leak important government information from other governments is also immoral. It leaves much to be desired on the professionalism of personnel in such vital government agencies.
FISA might have been good intentioned legislation, but how it has been handled and applied has made it unwelcome by many. The country could do with a better approach to matters of intelligence because overhauling the current legislation may not serve to eliminate the irresponsible culture that has developed among intelligence surveillance personnel. The friction caused by the legislation between the US and other countries does not bode well with the country’s status and standings from a global perspective. Maintaining the status quo is not an option in this situation; change needs to be effected to deliver a better foreign intelligence surveillance approach.
Anzaldi, M., & Gannon, W. (2010). In re directives pursuant to section 105B of the foreign intelligence surveillance act: Judicial recognition of certain warrantless foreign intelligence surveillance. Texas Law Review, 88(7), 1599-1631.
Breglio, K. (2003). Leaving FISA behind: The need to return to warrantless foreign intelligence surveillance. The Yale Law Journal, 113(1), 179-217.
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Jordan, D. (2006). Decrypting the Fourth Amendment: Warrantless NSA Surveillance and the Enhanced Expectation of Privacy Provided by Encrypted Voice over Internet Protocol. Boston College Law Review, 47(1), 1-42.
Political Transcript Wire. (2007). Sen. John D. Rockefeller IV Holds a Hearing on the Foreign Intelligence Surveillance Modernization act of 2007. Web.