[Excerpt] “The English poet W.H. Auden once claimed that “Peeping Toms are never praised, like novelists or bird watchers, for the keenness of their observations.” Perhaps Auden would have modified his maxim had he lived in the age of terrorism. A certain degree of government surveillance of even intimate communications is expected, encouraged, and indeed praised when the government’s efforts lead to the prevention of catastrophe. However, it is also expected that the government will minimize these intrusions, will conduct surveillance only on legitimate targets, and will follow the procedural safeguards that the representatives of the people have enacted in their name. As the Bush Administration has recently discovered, where these caveats are (or are perceived to have been) disrespected, government surveillance is perceived to degenerate into an illegitimate invasion of privacy and arbitrary abuse of power.
On December 16, 2005, the New York Times revealed that, shortly after the terrorist attacks of September 11, the White House surreptitiously authorized the National Security Agency (“NSA”) to conduct surveillance on Americans inside the United States. This search for evidence of terrorist activity without first obtaining a court-approved warrant was in apparent violation of the Foreign Intelligence Surveillance Act (“FISA”) and in possible abrogation of the Fourth Amendment. […]
In this article, assuming that the warrantless searches are necessary and that strict compliance with FISA in its current form would inhibit the collection of intelligence vital to national security, I will suggest amendments to FISA that would create a new independent body, appointed by the FISC, with the power to review the NSA’s warrantless searches and with the standing to challenge the constitutionality of individual searches before the FISC. Where an individual’s constitutional rights have been violated, the agency would be able to collect damages on his behalf and to move for an injunction on continued surveillance. I will also suggest statutory limitations restricting the admissibility of evidence gathered through warrantless surveillance in criminal prosecutions. Before I offer any suggestions for the amendment of FISA, however, I will describe in further detail the purpose and relevant provisions of the law to be amended and the deficiencies of the Administration’s legal justifications for bypassing those provisions.
Because the Administration believes that the President has the inherent authority to conduct warrantless searches pursuant to his power as Commander-in-Chief, it does not believe that amendments to FISA (or even FISA itself) are necessary. Thus, in Part II of this article, I will briefly sketch the historical circumstances which led Congress to believe why it was necessary and proper to enact FISA, outline the provisions of FISA which are relevant to this article, and describe the contours of the NSA program to the extent that they have been made public. In Part III, I will suggest why the Administration’s arguments regarding the legality of the domestic surveillance program lack merit. Finally, in Part IV, I will offer suggestions for the amendment of FISA.
Adam Burton, Fixing FISA for Long War: Regulating Warrantless Surveillance in the Age of Terrorism, 4 Pierce L. Rev. 381 (2006), available at http://scholars.unh.edu/unh_lr/vol4/iss2/10