FISA; historical background

Studs Terkel

By the 1960s, the inequities in civil rights and the debate over the Vietnam war spurred social justice movements. The government’s response? More surveillance. In the name of national security, the F.B.I. conducted warrantless wiretaps of political activists, journalists, former White House staff members and even a member of Congress.

Then things changed. In 1975, the hearings led by Senator Frank Church of Idaho revealed the scope of government surveillance of private citizens and lawful organizations. As Americans saw the damage, they reached a consensus that this unrestrained surveillance had a corrosive impact on us all.

In 1978, with broad public support, Congress passed the Foreign Intelligence Surveillance Act, which placed national security investigations, including wiretapping, under a system of warrants approved by a special court. The law was not perfect, but as a result of its enactment and a series of subsequent federal laws, a generation of Americans has come to adulthood protected by a legal structure and a social compact making clear that government will not engage in unbridled, dragnet seizure of electronic communications.

The Bush administration, however, tore apart that carefully devised legal structure and social compact. To make matters worse, after its intrusive programs were exposed, the White House and the Senate Intelligence Committee proposed a bill that legitimized blanket wiretapping without individual warrants. The legislation directly conflicts with the Fourth Amendment of the Constitution, requiring the government to obtain a warrant before reading the e-mail messages or listening to the telephone calls of its citizens, and to state with particularity where it intends to search and what it expects to find.

Compounding these wrongs, Congress is moving in a haphazard fashion to provide a “get out of jail free card” to the telephone companies that violated the rights of their subscribers. Some in Congress argue that this law-breaking is forgivable because it was done to help the government in a time of crisis. But it’s impossible for Congress to know the motivations of these companies or to know how the government will use the private information it received from them.

And it is not as though the telecommunications companies did not know that their actions were illegal. Judge Vaughn Walker of federal district court in San Francisco, appointed by President George H. W. Bush, noted that in an opinion in one of the immunity provision lawsuits the “very action in question has previously been held unlawful.”

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