New FOREIGN INTELLIGENCE SURVEILLANCE ACT: A Threat to American Freedom?

July 23, 2011

Two student readings review the history of FISA and new legislation that allows continued warrantless surveillance of Americans.

To the Teacher

 
It would be difficult to find any American who opposes eavesdropping on people the government has "probable cause" to believe are terrorists - even if that means listening in on their telephone calls, reading their e-mails, or monitoring their internet traffic. But Americans do disagree on what is "probable cause."
 
The first student reading below discusses Congress' creation of the Foreign Intelligence Surveillance Act after the Supreme Court found that the Nixon administration had violated the Fourth Amendment. The second reading covers the discovery that President Bush had secretly violated FISA and the Bill of Rights—and Bush's argument that the terrorist threat required these violations. The reading also discusses a move by Congress to give the Bush administration and telecom companies immunity from prosecution for their eavesdropping and permit them to continue the warrantless surveillance of Americans.
 
See the high school section of  TeachableMoment for earlier materials on FISA, "Presidential Power: Eavesdropping, Terrorism & American Freedoms."
 
 

STUDENT READING 1

 
After the 9/11 terrorist attacks, Americans feared more were coming. Where would terrorists strike next?
 
President Bush's response to the crisis was to secretly authorize the National Security Agency (NSA) to arrange with telecommunications companies a surveillance program to collect information on people's telephone, e-mail and internet use. The program might, but did not necessarily, mean listening to or taping phone calls or reading e-mails. The NSA subsequently collected for analysis enormous amounts of data from the telecom companies, including communications between Americans and people around the world as well as communications within the U.S.  NSA analysts looked for patterns, such as repeated communications between a suspected individual and an unknown one.  
 
The president's action remained secret until December 16, 2005, when the New York Times reported it. A media and political uproar followed, centered on the charge that Bush's surveillance program had violated U.S. law and the Constitution's First and Fourth Amendments.
 
The law in question was the Foreign Intelligence Surveillance Act of 1978, or FISA. During the 1970s, President Richard Nixon had ordered the CIA and the NSA to eavesdrop on Americans active in the anti-Vietnam War and civil rights movements—as well as on Americans he regarded as his personal enemies. 
 
In 1972, the Supreme Court examined the Nixon administration's actions and agreed that it violated Americans' Fourth Amendment guarantee of privacy. That amendment says: "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."  Nixon's spying also violated the Bill of Rights' guarantee of freedom of speech, which says: "Congress shall make no law....abridging the freedom of speech."
 
To prevent a future president from spying on Americans without warrants, Congress passed FISA. It required that the government could only spy on an agent of a foreign power or a terrorist, and that the only legal reason for surveillance would be to obtain foreign intelligence information.
 
The law provided a number of safeguards. Any electronic surveillance request had to be reviewed by the Justice Department, certified by the Attorney General, and disclosed to the House and Senate committees on intelligence. A special court of seven federal district court judges had to determine that the request did not violate FISA or Americans' First and Fourth Amendment rights. In addition, the government had to show "probable cause" that a crime had been or was about to be committed before surveillance could be authorized.
 
FISA allowed the government to conduct surveillance in an emergency even before submitting a request—but that request had to be made within 72 hours. In the 30 years since passage of the FISA law, the court rejected only  a handful of requests for surveillance, while approving nearly 20,000. (Editorial, "Compromising the Constitution," New York Times, 7/8/08)
 
FISA made tapping into private telephone conversations and e-mail messages of American citizens without warrants a felony punishable by up to five years in prison and/or a $10,000 fine for each violation.
 
President Bush did not have authorization from FISA when he authorized the National Security Agency and telecommunications companies to eavesdrop on people's telephone, e-mail and internet use. Civil liberties defenders have charged the nation's three biggest U.S. telecom companies—AT&T, Verizon and BellSouth, along with President Bush—with violating the law; they say neither President Bush nor any other president or government official has the legal authority to direct an individual or group to break the law. Quest was the only telecom company to refuse participation, apparently because of legal concerns.
 
The president maintained that the secret surveillance program protected Americans  against terrorists. He also said that his "inherent powers" as commander-in-chief during wartime and Congress's authorization of the president to use force against terrorists gave him the legal right to suspend FISA regulations. Opponents argued that legal permission for government eavesdropping could be provided through the FISA law without unconstitutional presidential action—and that any problems with FISA could be corrected by amending the law.
 
But on January 17, 2007, Congress bowed to Bush's demand for greater presidential authority with a one-year bill that weakened FISA. Democratic lawmakers, now in the majority, promised they would fix the law when it expired in 2008.
 
 
 
For discussion
 
1. What questions do students have about the reading? How might they be answered?
 
2. When and why was FISA created? What were its key provisions?
 
3.  What is your opinion of President Bush's decision to override the FISA law? Should a president have the right to violate a law or the Constitution if he believes that a national security threat requires him to? Why or why not? What dangers lie in either view?
 
4. Were the three telecom companies right to cooperate with the president? Why or why not?
 
5.  Read Article II, Section 2 of the Constitution. How do you evaluate President Bush's position that his "inherent powers" during wartime gave him the legal authority to override any law? What about his additional argument that congressional authorization to use force against terrorists also gave him that authority? 
 
 
 

STUDENT READING 2

 
President Bush spoke in the White House Rose Garden on July 10, 2008: "Today I'm pleased to sign landmark legislation that is vital to the security of our people. The bill will allow our intelligence professionals to quickly and effectively monitor the communications of terrorists abroad while respecting the liberties of Americans here at home. The bill I sign today will help us meet our most solemn responsibility: to stop new attacks and to protect our people." (7/10/08)
 
The bill praised by the president was a 114-page amendment to FISA. It included a non-controversial technological update in the law needed because of advances in telecommunications. Other changes were controversial.
 
Eric Lichtblau, who wrote the New York Times story in 2005 that first revealed the secret surveillance program, wrote: "The measure gives the executive branch broader latitude in eavesdropping on people abroad and at home who it believes are tied to terrorism, and it reduces the role of a secret intelligence court in overseeing some operations.
 
"Supporters maintained that the plan includes enough safeguards to protect Americans' civil liberties....There is nothing to fear in the bill, said Senator Christopher S. Bond, the Missouri Republican who was a lead negotiator, ‘unless you have Al Qaeda on your speed dial.'" (New York Times, 7/10/08)
 
But Senator Russ Feingold, a member of both the Senate intelligence and judiciary committees, said: "The government absolutely must be able to wiretap suspected terrorists to protect our security....With this bill, however, for the first time since FISA was adopted 30 years ago, the government would be authorized to collect all communications into and out of the United States without warrants. That means Americans e-mailing relatives abroad or calling business associates overseas could be monitored with absolutely no suspicion of wrongdoing by anyone. This bill overturns the laws and principles that have governed surveillance for the past 30 years." (Quoted by Glenn Greenwald, www.Salon.com, 7/9/08)
 
According to the Fourth Amendment, warrants are intended (1) to require government officials to present before a court the "probable cause," or good reasons, why public safety demands an invasion of someone's privacy, and (2) to prevent "unreasonable searches and seizures." The new FISA cites "national security" as the reason for allowing the government to spy without a warrant. It provides a broad definition of "national security" that leaves interpretation of it up to the president.
 
The new FISA also gives legal immunity to the telecom companies that for about three years turned over to the government data on Americans' private communications. Americans have filed more than 40 lawsuits in federal courts against the telecom companies for violating their privacy by running wiretaps under White House direction without permission from the FISA court. The new law protects AT&T, Verizon and BellSouth from these and any other lawsuits for "past or future cooperation with federal law enforcement authorities." The law also forbids the courts to determine the legality of telecom cooperation with the government. It ensures that President Bush, other members of his administration, and Republican and Democratic lawmakers who had been informed about the surveillance program are protected from any court review of their actions.
 
After reviewing the telecom companies' actions, the Senate Intelligence Committee concluded that their cooperation with the surveillance program "had been authorized by the president" and that their activities were "lawful." The committee did not think the telecoms should be punished for their cooperation.
 
The Democratic chairman of the committee, Senator Jay Rockefeller, did not explain why President Bush had the right to secretly authorize an illegal program or why administration lawyers had the right to declare "lawful" a program that the original FISA law states clearly is a felony. Nor did he explain why he had not protested the illegality of the NSA surveillance program -although he, fellow committee member Senator Jane Harman, and other Democrats had been informed about the program long before the Times reported it.
 
In the Senate's vote to pass the FISA law, all the Republicans present voted in favor of the law, as did nearly half the Democrats. Senator John McCain was not present, but had stated earlier his support for it. Senator Barack Obama had announced in October 2007 that he would "support a filibuster of any bill that includes retroactive immunity for telecommunications companies," and he opposed immunity during debate on the bill. But in the end, Obama did not support a filibuster and voted for the new law even though it did include immunity for the telecom companies.
 
Cass Sunstein, a Harvard professor and an Obama advisor, defended the bill, saying it  "creates a range of new safeguards to protect privacy, to ensure judicial supervision, to give a role for the inspector general. So it actually gives privacy and civil liberties a big boost over the previous arrangement." ("Democracy Now" interview, 7/2608)
 
But the American Civil Liberties Union filed a lawsuit in a U.S. district court opposing the new FISA. Other civil liberties, human rights, media, labor and legal organizations joined the ACLU in arguing that it violates Americans' rights to free speech and privacy under the First and Fourth Amendments. 

 
For discussion
 
1. What questions do students have about the reading? How might they be answered?
 
2. What are major provisions of the new FISA legislation? What strengths does the president think it has? Why do some lawmakers oppose it?
 
3. What are the potential dangers of leaving it to a president to define "national security"? How do you define it?
 
4. Should government officials, lawmakers, and telecom companies have been granted retroactive immunity for their actions? Why or why not?
 
5. How do you explain the significant Democratic support, including that of Barack Obama, for the new FISA?
 
The NSA could sweep data on or tap directly into your own phone conversations, e-mails, and internet browsing, and store that information as part of its broad surveillance program. Might knowing this possibility affect your communications behavior? If so, why and how? If not, why not?
 
 
For discussion groups of four to six students:
 
Senator Bond states: "There is nothing to fear in the bill unless you have Al Qaeda on your speed dial."
 
Senator Feingold states: The government is now authorized "to collect all communications into and out of the United States without warrants. That means Americans e-mailing relatives abroad or calling business associates overseas could be monitored with absolutely no suspicion of wrongdoing by anyone."
 
Questions: Do you agree with Senator Bond or Senator Feingold? Why?
 
Procedure: Each group names a discussion leader and a recorder. The leader calls upon each student to speak to the questions briefly and without interruption. The leader then conducts a ten-minute general discussion. The recorder keeps notes on the main points made so that she or he can provide a summary of the group's discussion for the whole class.
 
Following the recorders' reports, invite general discussion, including any key questions that have not been answered. Have students analyze these questions for clarity, unwarranted assumptions and the like. See in the high section of TeachableMoment "Thinking Is Questioning" for additional suggestions on question analysis. Assign individual and/or small group inquiries to pursue answers to the questions and to report back to the class.
 
 

For writing and citizenship

 
Assign students to write to one or both of their senators, supporting or opposing the senator's vote on the new FISA law and offering evidence and reasons for their view.
 
 
 
 
This lesson was written for TeachableMoment.Org, a project of Morningside Center for Teaching Social Responsibility. We welcome your comments. Please email them to: lmcclure@morningsidecenter.org.