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Response to Make7 (Original post)

Tue Jul 16, 2013, 10:27 PM

1. More information on the creation of FISA Act

FISA was created by Ted Kennedy for two reasons. First, it was created as a response to President Nixon using warrantless wiretaps and other searches to target political opponents and activist groups. The other reason it was created was made clear by one of the US Court of appeals decisions that affirmed the constitutionality of FISA, and that is the 1984 US v Duggan decision. Part of the Duggan decision reads:

Prior to the enactment of FISA, virtually every court that had addressed the issue had concluded that the President had the inherent power to conduct warrantless electronic surveillance to collect foreign intelligence information, and that such surveillances constituted an exception to the warrant requirement of the Fourth Amendment.

The Duggan decision goes on to list six or seven other appeals court decisions where courts concluded that the President has the inherent power to conduct this kind of warrantless electronic surveillance to collect foreign intelligence information.

Senator Kennedy and President Carter did not like the idea of warrantless wiretapping even though it was judged in the case of foreign espionage and terrorism to be Constitutional …so they created FISA which requires the Justice Department and intelligence agencies of the executive branch to get a judge to sign off on a warrant in order to conduct these surveillances. It also gives a number of congressional committees the ability to look over these warrants.

Critics point out that the judges almost always sign off on FISA warrants. That’s right. They sign off because as pointed out in the Duggan decision, appeals courts have already ruled many times that the President has the right to conduct this surveillance and that this surveillance does not violate the fourth amendment provided that the ultimate target of the investigation is a foreign sponsored entity or terrorist organization. FISA does provide additional rules as to how these activities are to be done and also restricts how long the justice department and intelligence agencies can hold onto the acquired information before they must dispose of it.

So to review, the FISA law was created because before FISA, appeals courts had already ruled that Presidents could conduct this surveillance without a warrant and FISA finally brought some level of legislative and judicial branch oversight to these activities. Now for the first time, the executive branch could not legally conduct frivolous or abusive surveillance of people and groups without the other branches of government finding out and potentially taking action.


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Arrow 3 replies Author Time Post
Make7 Jul 2013 OP
LineNew Reply More information on the creation of FISA Act
Thinkingabout Jul 2013 #1
struggle4progress Jul 2013 #2
bemildred Jul 2013 #3
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