Law and Domestic Security: The Effects of FISA and the Patriot Act on American Counter-intelligence and Counter-terror Efforts

“Someday someone will die and, wall or not, the public will not understand why we were not more effective and throwing every resource we had at certain ‘problems’. Let’s hope the [lawyers] stand behind their decisions then…”

- Coleen Rowley, Former FBI Agent












Before 1978, the story goes, agencies involved in domestic security, particularly the Federal Bureau of Investigation (FBI), ran wild, charging after spies and traitors and trampling civil rights. They broke into houses and busted safes; they put down illegal wiretaps, and scrutinized members of fringe political movements without probable cause. In response to these excesses, Congress put strict limits on government agencies’ powers, and specific guidelines for the surveillance on suspected spies and foreign agents, namely: The Foreign Intelligence Surveillance Act of 1978 (FISA). For the past thirty years FISA has been an essential part of American counter-intelligence operations, and it has had its share of both successes and failures. However, is it a law that is of overall benefit to the security and counter-intelligence efforts of the United States? Has FISA been improved or fixed by the counter-intelligence directives of the Unifying and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT)? Do these laws secure us, or leave us more vulnerable to attack?

History of FISA
Domestic security in America has a complicated history. Originally, the task of counter-intelligence fell to the Pinkerton Detective Agency and then, around the turn of the century, to the different branches of the military.[1] The supposed abuses that lead to the creation of the Foreign Intelligence Surveillance Act began with operations conducted by Office of Naval Intelligence. “In its enthusiasm to seek out individuals posing a possible threat to national security, ONI could be blamed for periodically engaging in ‘witch hunts’ or using questionable methods that would later be judged an affront to justice.”[2] The “questionable methods” included wire-tapping and physical searches without a warrant.[3]
In 1908, the Federal Bureau of Investigation was founded. While, in the beginning the Bureau made some brief forays into counter-intelligence (most notably with the General Intelligence Division), J. Edgar Hoover’s ascent to the top and his superiors’ hostile attitude towards intelligence gathering resulted in the effective dismantlement of these efforts.[4]
It was not until 1938 that the FBI became the central agency for internal security, especially counterintelligence measures, by the order of President Franklin D. Roosevelt.[5] The administration was under enormous pressure from the public and Congress to do something about the “spy problem” coming from fascist and communist subversion and espionage.[6] J. Edgar Hoover insisted that such duties should fall to a central civilian agency: “Army and Navy must bend every effort toward winning the war… investigative activities and protective measures [should be] handled by one central agency, the Bureau.”[7]
After World War II, the security apparatus begun by Hoover and Roosevelt was not dismantled; instead it was further consolidated into the Justice Department and the FBI.[8] The threat of Communist subversion and espionage loomed large in post-war America, and in the mind of Hoover. However, conventional attempts at penetrating the Communist Party of the United States of America (CPUSA) and other extremist groups failed because of obstructive legislation and the secretive nature of these groups.[9] In order to adapt to these difficulties, it was decided that “unconventional methods” would be employed. [10] Thus in 1956, the Counterintelligence Programs (COINTELPROs) were born, and within them lay the seeds of disillusionment that would be the catalyst for the creation of FISA.
The purpose of COINTELPROs was to use intelligence and political warfare techniques to neutralize domestic subversive organizations:
COINTELPRO-Communist Party (and COINTELPRO-Socialist Workers Party) involved such dirty tricks (and worse) as distributing anonymous or fictitious material to competing members of groups; selectively leaking information, sometimes false, through new media; directing informants within targeted groups to disrupt the activities of those groups through misinformation or by fermenting factionalism; disrupting the personal lives or careers of subjects; requesting tax audits of targeted individuals and check-ups by police for routine violations; impeaching the credibility of targeted group members by planting materials that suggested they were agents of the bureau; and simple interviewing and re-interviewing of targeted individuals in order to harass and intimidate them. Ultimately, these COINTELPRO techniques were extended to targets other than Communists- including groups that lacked any connection to a foreign power.[11]

In addition to the above, the FBI was involved in such activities as surreptitious entry, mail interception, and extensive electronic eavesdropping.[12] The FBI was extraordinarily successful at fulfilling this mission, and COINTELPRO effectively dismantled from the inside some of the most dangerous groups in the United States, such as CPUSA[13] and The Black Panthers[14]. However, this licentious attitude towards civil liberties was to bear bitter fruit.
On March 8th, 1971 a radical leftist organization (the “Commission to Investigate the FBI”) broke into an FBI office in Media, Pennsylvania, and stole reams of secret documents.[15] The stolen documents had detailed accounts of FBI activity against anti-war and New Left organizations, as well information on COINTELPRO. When the Commission released these documents to the media, it was the first time that COINTELPRO had been disclosed to the public.[16]
The Media break-ins began an avalanche of public attention to the “abuses” of the FBI. This attention included such inquiries as a conference entitled “Investigating the FBI”, jointly held by the Woodrow Wilson School of Princeton University and the Committee for Public Justice, a civil libertarian watchdog group.[17] Along with the death of J. Edgar Hoover, the Watergate Scandal and the indirect involvement of the FBI in Nixon’s corruption put the Bureau in a very vulnerable position. “With Hoover gone, critics of the Bureau, both within the government and outside it, could conceivably pressure more information out of the FBI concerning such excesses as COINTELPRO.”[18] These events brought about the slow and steady unraveling of the secrets of COINTELPRO, and were ultimately the cause of the Church and Pike Committees, congressional committees that held hearings, investigating FBI abuses.
The Church and Pike Committees did not find anything new, per se, but they brought to full public and political light the activities of the Counterintelligence Programs, and, in the process, thoroughly discredited the Federal Bureau of Investigation:
What was permanently damming to the Bureau, however, was not the Senate’s revelation (once again) of COINTELPRO, bad though that was, but the manner in which the congressional investigators made COINTELPRO into the central exhibit in a brief that purported to prove that the Bureau was, in effect, a permanent conspiracy against dissent in the United States… The Church Committee staff’s Final Report completed the destruction of the Bureau’s history by turning its once glorious history into a plot against the republic.[19]
The legislative branch, supported by the public’s perception of FBI malfeasance, turned the COINTELPRO scandal into a mandate to place heavy restrictions on the Bureau’s ability to conduct domestic security and counterintelligence:
The legislative goal of the Church Committee was a charter for the FBI that would strictly limit its intelligence operations… There were, however, two important consequences for the Bureau directly traceable to the 1975-1976 congressional investigations. Congress established oversight committees for intelligence (the Senate in 1976, the House in 1977) to supervise the FBI (and the CIA). Then it passed the Foreign Intelligence Surveillance Act in 1978… which assumed that strictly domestic terrorism should be handled in an ex post factum fashion, investigating crimes after they occurred rather than preventing them.[20]
FISA was originally conceived not only to curtail abuses and rein in the FBI, but to neutralize any attempts at preventative counter-terrorism and counter-intelligence.

Overview of the Foreign Intelligence Surveillance Act
President Carter signed the Foreign Intelligence Surveillance Act into law on October 25, 1978, and, according to its provisions, it became fully effective on August 16th, 1979.[21] In so doing, Carter radically changed American counterintelligence doctrine and capabilities. The change that FISA instituted has been far-reaching, but there are five main areas where FISA has had the most direct impact: the creation of a secret FISA court, electronic surveillance, physical searches, pen registers and trap and trace devices, and access to confidential business records.
While Congress was determined to limit the FBI’s ability to execute operations and surveillance, it acknowledged that the issues of domestic security and counterintelligence required secrecy.[22] However, it had to balance the need for secrecy with civil liberties, which require that any action taken against a U.S. person have a court order.[23] Therefore, the FISA legislation created its own court, the Foreign Intelligence Surveillance Court (FISC), which hears cases and briefs, and issues orders completely confidentially. The judges, clerks, and lawyers are all required to obtain a security clearance.[24] All sensitive material conducted under the auspices of FISA pass through this court and its cases are classified. Its decisions are subject to appellate review by the FISC Court of Review, whose records are also sealed and whose meetings are secret.[25] The FISA court strikes an elegant, if delicate, balance between the needs of national security and the demands of the citizenry.
FISA empowers the President, through the Attorney General, to authorize electronic surveillance, without a court order for up to one year, in order to acquire “foreign intelligence”. However, in order to do this, the Attorney General must meet two criteria: first, he must certify, in writing and under oath that the surveillance is directed only against foreign targets, and communication between the same, and secondly, he must report to Congress the minimization procedures that he is undertaking in the operation.[26] “Minimization” is a term that refers to a set of protections for American persons which restricts electronic surveillance:
[They are] specific procedures … that are reasonably designed in light of the purpose and technique of the particular surveillance, to minimize the acquisition and retention … of non-publicly available information concerning unconsenting United States persons.[27]

The minimization restriction goes farther than this, however, and forbids the retention or use of incidental information about crimes committed by American citizens, nor can any information about an American person be disseminated, even within the government, without the person’s consent, nor, finally, can any electronic surveillance record be kept about an American person without a FISA warrant, which must be obtained within seventy-two hours.[28]
However, protections go even further than minimization efforts. The most important provision on electronic surveillance as regards domestic counterintelligence is that the Attorney General may not, under any circumstances, order electronic surveillance on an American person without a court order, and, furthermore, he can only order that surveillance if there is “…no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party.”[29] The essential point to all of these restrictions is the complete inviolability of the American person; no matter what his or her crimes, or his or her involvement, or even incidental contact with surveillance, without the long and complicated process of obtaining a court order.
In regard to physical searches, the same basic guidelines apply, including mandatory minimization efforts and the seventy-two hour guideline for retroactive court orders. American intelligence services may execute a physical search on non-United States persons without a court order, provided the Attorney General authorizes it. “While tailored to physical search, the requirements [of FISA] strongly parallel those applicable to electronic surveillance under 50 U.S.C., Section 1804 (a)(7)(B).”[30] Once again, should the search turn about anything that involves or implicates an American person, it must be completely disregarded and can bear no influence on the case.[31] In fact, as far as the courts are concerned, any such evidence or information does not exist.
Title IV of FISA presents the restrictions and guidelines for pen registers and trap and trace devices, or, in other words, the rules governing surveillance directed towards the activity of specific phone lines. Trap and trace devices and pen registers are attached to a single line and, instead of recording conversations, they monitor the phone numbers of both incoming and outgoing phone calls.[32] Pen registers can also be used to monitor internet usage, specifically what websites a person visits, and the people they e-mail.
In the case of pen registers and trap and trace devices FISA is a bit more permissive in allowing their use. The main concern of FISA is that the FBI not utilize these tools against American dissidents. The Attorney General, or a designated attorney for the government, may authorize the use of these devices “for any investigation to protect against international terrorism or clandestine intelligence activities, provided such investigation of United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.”[33]
The last major proviso of the Foreign Intelligence Surveillance Act is subsection 1861(a)(2), which empowers the government to require businesses to produce any and all of their records for a counter-terrorism or –intelligence operation or investigation. However, they must apply to FISC for authorization to confiscate business records. While pursuing a court order, the government is required specify on its application that the records sought after are for “an authorized investigation conducted in accordance with [FISA] to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.”[34] Additionally, the Act prohibits “…any person to disclose that the FBI has sought after or obtained tangible things under Section 1862”[35] with the exception of authorized individuals, as well as precluding “… liability for persons who, in good faith, produce tangible things under such a Section 1861 order.”[36]
The Foreign Intelligence Surveillance Act is an intricate and complicated piece of legislation that seeks to accomplish much. The two necessities of a free society are freedom and national security, yet one is clearly more important than the other. Freedom cannot long survive if the nation is under constant threat of attack. The traditional conflict between these two values is one that statesman have attempted to reconcile since the beginning of our nation. Yet, by putting paramount importance on civil liberties, legislators have put the people who enjoy those freedoms in danger.

The Consequences of the Foreign Intelligence Surveillance Act
FISA has had profound consequences on our country’s ability to protect itself. While it may have set a legal framework that protects civil liberties, it also made any attempt at domestic security progressively more difficult. In fact, it eventually became impossible to conduct and coordinate counterintelligence and counter-terrorism operations due to the legislation’s restrictions. The problems created by FISA are legion, but this paper will consider the most egregious ones.
The most serious consequence of FISA is what is termed the “wall” between FBI operations conducting domestic security and the rest of the government- including the criminal division of the FBI. The FBI became so concerned about even appearing as though they were engaged in inappropriate domestic security, the same issue that FISA was enacted for, that they erected a wall of isolation around their domestic security operations.[37] This wall was so high that the FBI agents conducting criminal investigations and those conducting intelligence operations on the same (foreign) person could not share any information:
[There] was a prosecution team in New York that began criminal investigation of Usama Bin Laden (sic) in early 1996. The team had access to a number of sources. We could talk to citizens, local police officers, other U.S. government agencies, foreign police officers-even foreign intelligence personnel, and foreign citizens. We did all those things. We could even talk to Al Qaeda members - and we did. But there was one group of people we couldn’t talk to… the FBI agents across the street from us assigned to a parallel intelligence investigation of Usama bin Laden (sic) and al Qaeda. We could not learn what information they had gathered. That was “the wall”.[38]
It is absurd that any law would get in the way of simply sharing information on matters of vital national security because of a public relation concerns.
The isolation that this wall creates is not just damaging to the efforts of the FBI, but also to the government’s efforts against terrorism and foreign intelligence operations worldwide. In the modern age, globalization is taking effect, and the world is growing increasingly interdependent, so that “no ‘affair’ is any longer exclusively ‘foreign’.”[39] Now even more so than in previous years, the counterintelligence, investigative and foreign intelligence apparatus need to be able to communicate with one another in order to perform their essential duties with effectiveness.
Congress, in creating FISA, overreacted to the reports of abuse, and in the process of transforming the FBI into a kinder, gentler agency also hamstrung our ability to protect ourselves from domestic intelligence and terrorist operations. The FBI and the Department of Justice, in their efforts to avoid any stain of real or imagined impropriety, built the wall higher than was required by law:
We believe that it is prudent to establish a set of instructions that will clearly separate the counterintelligence investigation from the more limited, but continued, criminal investigations. These procedures, which go beyond what is legally required, will prevent any risk of creating an unwarranted appearance that FISA is being used to avoid procedural safeguards which would apply in a criminal investigation.[40]
While it is certainly gratifying that the FBI is concerned with observing “procedural safeguards” and protecting citizens’ civil rights, they are primarily a criminal and security agency and the focus should be less on legal niceties and more on actively protecting the country.
The current position of the FBI, and its security apparatus, is a direct result of FISA and the culture it sought, successfully, to create.[41] In a report prepared by the United States General Accounting Office for Senator Fred Thompson, of the Senate Committee on Governmental Affairs, it is reported that the “Criminal Division believes that [Office of Intelligence Policy and Review] and [Federal Bureau of Investigation] concerns are overly cautious” toward the possibility of intelligence corrupting criminal evidence.[42]
While the Foreign Intelligence Surveillance Court is an elegant solution to the conflicting necessities of secrecy and appellate review, it has a major drawback. Theoretically the court can issue orders quickly enough to accommodate the needs of field operations. However, in reality, the massive amount of paperwork, which needs meticulous attention, and the high case load makes for unacceptably long wait times. On average, it takes over forty-six days for the Justice Department to present an application for a FISA warrant to the FISC.[43] Add this to the 1,228 applications presented to the Foreign Intelligence Surveillance Court annually, and the likelihood of court orders being issued in a timely matter is virtually non-existent. Intelligence operations are by nature dynamic with ephemeral opportunities that require quick action. Intelligence officers do not have the luxury of the time required to submit briefs and applications. Important information and dangerous individuals may be lost because of a slow, overworked court.
The court’s jurisdiction has been expanded far past the borders of the United States. The original intent of FISA was to protect Unites States persons within the nation’s borders, but it has come to mean that no US person anywhere in the world can be targeted for surveillance without the approval of the FISA Court. This requirement would further hamper intelligence officers in their capabilities and options, and generally make the nation less safe:
Unforeseen changes in technology, however, meant that… the government often needed to obtain a court order before vital intelligence collection could begin against a terrorist or other foreign intelligence target located in a foreign country. A mandatory prior court approval process would create delays that could prevent the swift gathering of intelligence necessary to indentify and provide warning of threats to our country.[44]
If the United States desires to be truly committed to her own safety and security, and to that of her citizens, then she should be more careful about to whom she extends her protection, including Americans who associate themselves with terrorists and spies. The Foreign Intelligence Surveillance Act was written in 1978, and issued restrictions and guidelines based on the technological capabilities of the time. However, in 2008, this means that the bulk of FISA, even with revisions, is hopelessly out of date.[45]
“Revolutionary advances in telecommunications technology since 1978 upset the careful balance established by Congress to distinguish between surveillance governed by FISA and surveillance directed at targets outside the US.”[46]
The Foreign Intelligence Surveillance Act of 1978 has very serious problems. Many of its protections are excessive, and were written with a completely different technological frame of reference. FISA makes our intelligence and domestic security apparatus slow and moribund, at the very time when they should be modernizing and revitalizing to face the threats of the twenty-first century.

The Influence of the USA PATRIOT Act on FISA
The Unifying and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 was legislation designed to strengthen the counter-terrorism tools of the United States government. However, the PATRIOT Act amends some very important sections of FISA, which has consequences for all domestic security, counter-terrorism and counterintelligence alike. The PATRIOT Act has been a boon for our domestic security and intelligence because many of the problems of FISA have been addressed and remedied, to varying degrees, by it.
The biggest problem that FISA had was the isolation between the counterintelligence and investigative aspects of government. The wall nurtured a counter-productive and weak culture within the counterintelligence community. One of the main reasons that the PATRIOT Act was written was to help break down this wall, in order to prevent a failure such as September 11th from happening again. [47] This makes breaking down the wall the most significant thing that the PATRIOT Act has accomplished in repairing our domestic intelligence capabilities. “The wall, prior to its partial dismantlement through the operation of the USA PATRIOT Act… had the unintended consequence of depriving counterintelligence operators of some of the basic tools of criminal investigation.” [48]
Despite the major strides made possible by the PATRIOT Act in improving domestic security, an entire culture of timid and over-cautious behavior needs to be transformed. Even more importantly, our domestic security operators need to be able to act on or obtain time-sensitive information, leads, and opportunities, without having to run the legal gamut. The National Security Letter has made quick response to changing circumstances and access to vital information a possibility by allowing the Attorney General to authorize, without a court order, the collection of “sensitive information such as the web sites a person visits, a list of e-mail addresses with which a person has corresponded, or even unmask the identity of a person who has posted anonymous speech on a political website.”[49] The National Security Letters also protect secrecy by “…also allow[ing] the FBI to forbid or ‘gag’ anyone who receives an NSL from telling anyone about the record demand.”[50] The National Security Letter provision of the PATRIOT Act is of great value to domestic intelligence staff, and fixes the overly regulated aspects of information collection in FISA.
One of the major aspects of FISA was the power it granted the Attorney General to compel businesses to share sensitive documents. This gave domestic intelligence agencies a tremendous resource of information. Under the PATRIOT Act, this power has been significantly expanded. Whereas previously FISA stipulated that it could only require “access to certain business records for foreign intelligence and international terrorism investigations”, the PATRIOT Act has increased the scope of documents the government is able access. The Director of the FBI, or a designee, may apply to the FISC for an order that requires:
The production of any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a United States person or [sic] to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person in not conducted solely upon the basis of activities protected by the first amendment to the Constitution.[51]
While there was nothing technically wrong with the FISA provision about obtaining business documents, it greatly limited the potential of this resource. The PATRIOT Act increased the effectiveness of this FISA provision.
Before the passage of the PATRIOT Act, virtually no legislation existed that empowered the government to pursue individuals or organizations that funded clandestine intelligence or terrorist activities in the United States. Although FISA allowed for access to private business records, it did not enable the government to stop or slow the flow of money:
Also included in the PATRIOT Act was authority that allowed us [Justice Department] to go after the purse strings of potential terrorists… Somebody finances international terrorism, and some of that money flows through US banks. Prior to 9/11, we could do relatively little to impede or impound funds that were moving through the terrorist financial network. The PATRIOT Act gave us the ability to investigate and prosecute anyone who financially supports terrorism or funnels money to terrorists.[52]
The capacity to trace money, and even stop its flow, especially in American bank systems, is invaluable for any domestic security agency.
The Foreign Intelligence Surveillance Court originally had only seven justices. The framers of this law had no conception of the sheer number of cases that the FISC would have to process; as was previously mentioned, over 1,200 cases go before these judges every year. The PATRIOT Act remedied this situation by increasing the number of judges from seven to eleven, at least three of whom must always be within twenty miles of the District of Columbia.[53] Requiring three judges to always be available improves response time for time-sensitive issues, and the augmented number of judges means that they can get through more cases, more quickly.
The two aspects of FISA which have the strictest legal requirements are the ones which deal with physical searches and electronic surveillance, which also happen to be two of the most vital weapons in an internal security’s locker. Minimization restrictions and mandatory FISC court order were brutal obstacles to effective utilization of these tools. On the other hand, they are also some of the most controversial powers with which domestic intelligence is entrusted. The PATRIOT Act’s amendments to the FISA law represent substantial, positive, but restrained change.
The altered physical search provision takes into account the sensitive nature of intelligence operations. In the original rules governing searches in FISA, a court order must be obtained and prior notice given for a search to be legal. However, the PATRIOT act has amended FISA so that “FBI agents may now conduct ‘sneak and peek’ searches when notice of a search would adversely impact a probe.”[54] This is a definite improvement over the previous provisos; however it is still very limited. “This expanded power, however, does not provide authority to seize tangible evidence or intercept communications. FBI field agents are still bedeviled by the need to obtain a warrant.”[55]
In the case of electronic surveillance, the corrected provision adapts FISA to this centuries’ technological situation. Previously, FISA only allowed the government to obtain court orders on particular devices.[56] This was perfectly acceptable when phones could not be carried on a person, and people were forced to use the same phone repeatedly. However, the advent and popularity of the cell phone meant that targets could use a phone once, throw it out, and because wire-tapping court orders take, on average, a week to procure, the target could operate seven days surveillance free.[57] The PATRIOT Act addresses this problem through the introduction of roving wiretaps:
In fact, this aspect of the act simply gives intelligence agents and law enforcement officers the court-ordered ability to change with a suspected terrorist when he or she switches phones, without having to go back to court to get a new warrant. Roving wiretaps still require a court order and still require the supervision of a member of the federal judiciary. But the roving wiretaps allow agents to track continuously terrorism suspects who have become much more adept at camouflaging their telephone communications.[58]
This modification is a vast improvement over the previous requirements of FISA, and one which is very conscious of the current technological situation.
The PATRIOT Act has, in general, been a healthy thing for the Foreign Intelligence Surveillance Act. It has both expanded its scope to meet with the new dangers the nation faces, as well as modernized it so that domestic security agencies are not fighting a twenty-first century war with twentieth century weapons. It has loosened the obsolete and rigid language of FISA so that intelligence officers can exercise initiative without being shackled to a lawyer.[59] However, the increased capacity of internal security does not come with a price of fewer civil liberties: “[W]ith its detailed statutory structure, it appears intended to protect personal liberties safeguarded by the First and Fourth Amendments while providing a means to ensure national security interests.”[60] The PATRIOT Act is just the type of change that FISA needed.
Conclusions
Many people assume that in order to have security, one must surrender liberty. While this is certainly true in extreme cases, it is not true generally. A society can both uphold its God-given, inalienable rights at the same time as maintaining a security and peace. Laws like FISA come about because people are afraid of those who are ostensibly their protectors, so they seek to weaken them and make themselves vulnerable to attack. However, stricter punishment for officers who abuse the law would both reassure the public, as well as deter others from exploiting their position.[61] Such compromises will allow a democratic society to keep its way of life intact during difficult times.
The Foreign Intelligence Surveillance Act of 1978 was a clear overreaction to over-politicized abuses by the FBI, but it was one that set this country’s security apparatus back decades. The United States has grown increasingly weak and vulnerable due to the culture and climate that FISA has created, both in the agencies and in the courts. FISA did not make the country any safer, but the PATRIOT Act did. The PATRIOT Act amended the more dangerous strictures of FISA, as well as addressing concerns not covered by it. However, the PATRIOT Act is not enough; while many of FISA’s problems have been temporarily alleviated by the PATRIOT Act, no amount of tinkering is going to fix something that is fundamentally broken. The PATRIOT Act does not need to be more extreme, or to expand the powers of the government, in order to make the country more secure. All it needs is a new base work with, something which is not a reaction to abuses, but a prudent, well reasoned, and deliberated piece of legislation. Abolish FISA, and create a law that makes sense.


[1] Frank J. Rafalko, editor, A Counterintelligence Reader: American Revolution to World War II, National Counterintelligence Center, http://www.fas.org/irp/ops/ci/docs/ci1/ch3a.htm (accessed July 23, 2008).
[2] Ibid.
[3] Ibid.
[4] Raymond J. Batvinis, The Origins of FBI Counterintelligence (Lawrence, Kansas: University Press of Kansas, 2007), pg. 40-51.
[5] Ibid, pg. 54-58.
[6] Ibid, pg. 52-53.
[7] Ibid, pg. 54.
[8] Richard E. Morgan, Domestic Intelligence: Monitoring Dissent In America (Austin, Texas: University of Texas Press, 1980), pg. 37.
[9] Ibid, pg. 45.
[10] Ibid, pg. 45-46.
[11] Ibid, pg. 46.
[12] Ibid, pg. 49.
[13] Ibid, pg. 46-48.
[14]United States Senate Intelligence Activities Committee, compiler, “The FBI’s Covert Program to Destroy the Black Panther Party,” Final Report of the Select Committee to Study Governmental Operations with Respect to Intelligence Activities United States Senate, http://www.icdc.com/~paulwolf/cointelpro/churchfinalreportIIIc.htm (Accessed July 24, 2008).
[15] Richard E. Morgan, Domestic Intelligence: Monitoring Dissent In America (Austin, Texas: University of Texas Press, 1980), pg. 4.
[16] Ibid, pg. 4-5.
[17] Ibid, pg. 4.
[18] Ibid, pg. 5.
[19] Richard Gid Powers, Broken: The Troubled Past and Uncertain Future of the FBI (New York, NY: Free Press, 2004) pg. 310-311.
[20] Ibid, pg. 312-313.
[21] Committee on the Judiciary, compiler, “Oversight Hearings Before The Subcommittee On Courts, Civil Liberties, And The Administration Of Justice of the Committee On The Judiciary House Of Representatives Ninety-Eighth Congress,” First Session on Foreign Intelligence Surveillance Act of 1978 (Washington, DC: US Government Printing Office, 1985) pg. 158
[22] United States Courts, compiler, “Foreign Intelligence Surveillance Court and the Court of Review,” Understanding Intelligence Surveillance: A FISA Primer, http://www.uscourts.gov/outreach/topics/ fisa/courtofreview.html (accessed 7/18/08)
[23] Ibid.
[24] Thomas M. Franck, “Courts and Foreign Policy,” Foreign Policy (Summer 1991) http://www.foreignpolicy.com/Ning/archive/archive/083/COURTS_AND_FOREIGN_POLICY.PDF (accessed July 18, 2008).
[25] United States Courts, compiler, “Foreign Intelligence Surveillance Court and the Court of Review,” Understanding Intelligence Surveillance: A FISA Primer, http://www.uscourts.gov/outreach/topics/ fisa/courtofreview.html (accessed 7/18/08).
[26] Elizabeth B. Bazan, The Foreign Intelligence Surveillance Act (Hauppauge, NY: Novinka Books, 2002) pg. 11-13.
[27] Ibid, pg. 11.
[28] Ibid, pg. 11.
[29] Ibid, pg. 11.
[30] Ibid, pg. 34.
[31] Ibid, pg. 34.
[32] Ibid, pg. 44.
[33] Ibid, pg. 45.
[34] Ibid, pg. 54.
[35] Ibid, pg. 54.
[36] Ibid, pg. 44.
[37] Richard Gid Powers, Broken: The Troubled Past and Uncertain Future of the FBI (New York, NY: Free Press, 2004) pg. 399.
[38] John Ashcroft, Never Again: Securing America and Restoring Justice (New York, NY: Center Street, 2006) pg. 150.
[39] Thomas M. Franck, “Courts and Foreign Policy,” Foreign Policy (Summer 1991) http://www.foreignpolicy.com/Ning/archive/archive/083/COURTS_AND_FOREIGN_POLICY.PDF (accessed July 18, 2008).
[40] Richard Gid Powers, Broken: The Troubled Past and Uncertain Future of the FBI (New York, NY: Free Press, 2004) pg. 399.
[41] Ibid, pg. 310-311.
[42] United States General Accounting Office, “Coordination Within Justice on Counterintelligence Criminal Matters is Limited,” FBI Intelligence Investigations (July 2001) http://www.fas.org/irp/gao/d01780.pdf (Accessed July 23, 2008).
[43] Richard A. Posner, Remaking Domestic Intelligence (Stanford, CA: Hoover Institution Press Publication, 2005) pg. 44- 45.
[44] Anonymous, “FISA Legislation Necessary To Keep Our Nation Safe,” The White House (December 17, 2007) http://www.whitehouse.gov/news/releases/2007/12/20071217-3.html (Accessed July 23, 2008).
[45] The Protect America Act of 2007, which completely modernized FISA, expired on February 17, 2008 despite staunch White House opposition. The above criticism would be invalid if this were not the case.
[46] Anonymous, “FISA Legislation Necessary To Keep Our Nation Safe,” The White House (December 17, 2007) http://www.whitehouse.gov/news/releases/2007/12/20071217-3.html (Accessed July 23, 2008).
[47] John Ashcroft, Never Again: Securing America and Restoring Justice (New York, NY: Center Street, 2006) pg. 143- 144.
[48] Michael J. Woods, “Access to Transactional Records,” Journal of National Security Law and Policy, Vol. 1:37 (2005): 40.
[49] The American Civil Liberties Union, “National Security Letters,” The American Civil Liberties Union, http://www.chicagomanualofstyle.org/tools_citationguide.html (accessed July 24, 2008).
[50] Ibid.
[51] Elizabeth B. Bazan, The Foreign Intelligence Surveillance Act (Hauppauge, NY: Novinka Books, 2002) pg. 52- 53.
[52] John Ashcroft, Never Again: Securing America and Restoring Justice (New York, NY: Center Street, 2006) pg. 157.
[53] Find Law.com, “115 Stat. 283 Sec. 208,” USA PATRIOT Act of 2001 http://fl1.findlaw.com/news.findlaw.com/ (Accessed July 24, 2008).
[54] Mark Riebling, “Uncuff the FBI,” The Wall Street Journal, June 4, 2002, pg. A-20.
[55] Ibid.
[56] John Ashcroft, Never Again: Securing America and Restoring Justice (New York, NY: Center Street, 2006) pg. 156.
[57] Ibid.
[58] Ibid.
[59] Elizabeth B. Bazan, The Foreign Intelligence Surveillance Act (Hauppauge, NY: Novinka Books, 2002) pg. 57.
[60] Ibid, pg. 57.
[61] Mark Riebling, “Uncuff the FBI,” The Wall Street Journal, June 4, 2002, pg. A-20.