Analysis of the Foreign Intelligence Surveillance Act

The purpose of an analytical essay is the process in which an argument, or accusation, about what is being analyzed is presented. In most instances, analytical essays are used to evaluate other sources of writing, however, an analytical essay can also be used to evaluate a dispute or an idea. With that said, this analytical essay will focus on evaluating whether or not the constitutional rights of individuals are properly balanced against the imperative of the government to investigate intelligence threats to the nation. In order to conduct an accurate form of an analytical essay, focal points and objectives need to be met to properly evaluate the main focus; describing the jurisdiction of federal law and specifically the jurisdiction of the Foreign Intelligence Surveillance Act (FISA), and also identifying the major provisions of the FISA and how they work. Having these enabling objectives will accurately lead into the main focus point of the analytical essay - which will provide an answer to the issue or argument at hand.

The Foreign Intelligence Surveillance Act (FISA) was established in 1978 and was initially approved in reaction to the congressional investigations of the 1970's; these responses strongminded more severe rules and congressional oversight which was intended as support for the Intelligence Community (IC). The FISA was ordained by the Senate and House of Representatives who occupied Congress for the United States of America. Due to several intelligence failures that occurred throughout history, i.e. Vietnam War and the Watergate Scandal. These events were created a turning point that involved and required congressional review (Saar 2018). The FISA can be found under the U.S. Code Title 50 chapter 36; within the FISA are three titles with several subsections that make up the FISA. The FISA Amendments Act (FAA) authorizes foreign intelligence surveillance activities that have been vital to keeping the nation safe (ODNI Fact Sheet 2017).

Jurisdiction of Federal law and, more specifically, the FISA elaborates on wire taps and investigations that could result in the procurement of evidence of a crime. In the case Brothers to the Rescue (BTTR), a group of Cuban refugees and supporters located in Miami, would conduct air and sea patrols in the Straits of Florida in order to offer any assistance for future refugees struggling to escape Cuban control. At this time, U.S. policy indicated that refugees who successfully relocated in Florida would be liberated into the country, while any refugee caught prior to making landfall would be deported back to Cuba. During this event, an airplane being operated by the BTTR, was shot down within an international air space. At the same time, Cuban agents who have been identified as agents that would spy on anti-Castro Cubans living in Miami, were successfully wiretapped by the U.S. counter-intelligence community under the FISA. It was because of these wiretaps that the U.S. was able to acquire potentially relevant and useful evidence in order to prosecute the Cuban agents. When a FISA wiretap or search reveals evidence of a crime, the FBI is obligated under both Executive Order 12333 and the terms of the Foreign Intelligence Surveillance Act (McAdams 2009). This would allow judicious reason to authorize such evidence to the law enforcement community for use in examining and/or indicting the circumstance as an unlawful matter (McAdams 2009).

As amended, the FISA creates measures for the endorsement of electronic surveillance, use of pen registers and trap and trace devices, physical searches, and business records for the purpose of gathering foreign intelligence (Security, Department of Homeland 2013). Under electronic surveillance, the Foreign Intelligence Surveillance Court (FISC) can acquire a warrant approving electronic surveillance of foreign agents. Targets that are U.S. citizens, legal aliens, and U.S. businesses still require specific requirements in some cases; The Wiretap Act requires probable cause to provide significant purpose against the target in order to foreign intelligence, and no demonstration that directive of a crime is pending. The FISA creates the practice of pen registers and trap devices for managing telephone or e-mail surveillance (Security, Department of Homeland 2013). How it works, is that any communications that are inadvertently captured by a situation that the person has a judicious probability of privacy, a warrant is required by law, and the recipients are located in the U.S., then the government is obligated to terminate those records. This type of circumstance is only required if the General Attorney concludes that the matters impose a threat of death or serious injury (Security, Department of Homeland 2013).

Within the FISA, provisions that create the most tension between civil liberties and national security include the First and Fourth Amendments. The First Amendment states that Congress will make no law that prohibits the establishment of a religion or practicing the religion, freedom of speech, right to peaceful assemble, and to petition the Government for a redress of grievances (Bazan 2008). The Fourth Amendment gives the right of people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. According to the Fourth Amendment, that circumstance will not be violated, and no warrant shall issue, but upon probable cause, supported by Oath and affirmation, and particularly describing the place to be searched, and the persons or things to be seized (Bazan 2008). With introducing the FISA, Senator Edward Kennedy adopted the difficulties of identifying a suitable balance the government would need in order to protect the country against intelligence acts of foreign agents and the need to protect civil liberties: stating that electronic surveillance can be a valuable tool if used properly. Senator Kennedy would hope to be persistent in achieving an equal balance that would protect national security without the invasion of privacy. In a hearing following the proposal, Attorney General stated, for the first time in our society the clandestine intelligence activities of our government shall be subject to the regulation and receive the positive authority of a public law for all to inspect (Bazan 2008).

Although the idea and plans put in place to create an equal balance between government, law enforcement, and civil liberties, the actions have yet to be an established balance. On the topic of evaluating whether or not the constitutional rights of individuals are properly balanced against the imperative of the government to investigate intelligence threats to the nation, the nation will never be happy with the procedures and policy due to an infinite amount of different perspectives and perceptions of the Constitution and FISA; which will continue to be debated. With the advances in technology, both positive and negative, the opportunities of this technology can provide an increase in lawful communications, public debate, and communications between alleged criminals with the intent to disrupt national security. Efforts to continue the balance for future surveillance is absolutely necessary; a balance which cannot be achieved by sacrificing either our nation's security or our civil liberties (Bazan 2008).

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