Senate Has Yet To Vote on Extending FISA Surveillance Law

by GREGORY D. LEE December 13, 2012

The Senate has yet to vote to extend the Foreign Intelligence Surveillance Amendments Act which expires at the end of this month. Last September, the house overwhelming passed the extension by a vote of 301 to 118, but the Senate, as usual, has been dragging its feet.

The FISA allows the FBI and Intelligence agencies to monitor foreign intelligence agents located abroad as well as U.S. Citizens when they receive telephone calls from suspected terrorists or spies when the calls are initiated overseas.

Under the original act, the FBI can, under exigent circumstances, unilaterally flick the switch to begin monitoring telephone calls of terrorists or spies; but it must present its case and receive permission from the Foreign Intelligence Surveillance Court within 72 hours to continue. The Court consists of 11 federal judges from different circuits around the country with three residing within easy commuting distance to Washington, D.C. The Chief Justice of the U.S. Supreme Court appoints the judges to the court, and none can serve more than one seven year term.

The "secret court" is admittedly one-sided, in that the government makes it case to initiate or continue electronic surveillance without any knowledge of the person(s) in question. If there was, it wouldn't exactly be a secret court proceeding. Records of court hearings are made, but they are classified, as they should be.

There is also a FIS Appeals Court, but it is believed it has only heard one appeal since its inception in 1978. No matter how you examine it, the original and amended Act is designed to ensure that the government does not abuse U.S. Citizens' rights; it merely expedites what is otherwise an arduous undertaking to secure a warrant to conduct a wiretap. This act is necessary because espionage and terrorism investigations require immediate action to uncover plots and prevent potential harm.

FISA was enhanced when it was amended after 9/11 to allow the FBI to intercept e-mails and telephone calls of foreigners located overseas. Think of how many acts of domestic terrorism the news media has reported that have been averted, at least some of which were surely as a direct result of FISA intercepts. The exact number has not, and should not be disclosed.

Democrats and Republicans both criticized the amended act because when foreigners call U.S. citizens, those conversations are monitored as well. Some lawmakers are demanding to know the number of U.S. citizens and residents whose communications have been collected under the law. The government has refused to release those numbers for good reason. Disclosing the number would provide clues to the effectiveness of FBI and intelligence agency operations, and possibly who it is monitoring. The ACLU, of course, hates the act, and would like to see it just disappear at the end of the year.  

There has yet to be one proven abuse by the FBI or other agencies participating in this program. So, why the sudden concern of abuse?

If the Senate stalls and lets the FISA Amendments Act expire, ongoing investigations would be placed in jeopardy. Valuable time would be wasted, and intelligence lost, trying to make up for the short comings of not being able to monitor the electronic communications of terrorists communicating to operatives in the United States. The Senate must act soon to not jeopardize national security.

Osama Bin Laden may be dead, but al-Qaeda is still around as well as the scores of spin-off terrorist groups and affiliates that are still in operation.

Family Security Matters Contributing Editor Gregory D. Lee is a retired Supervisory Special Agent for the Drug Enforcement Administration (DEA) and the author of three criminal justice textbooks. While on DEA diplomatic assignment in Pakistan, he was involved in the investigation of several notable terrorism events and arrests. He recently retired after more than 39 years of active and reserve service from the U.S. Army Reserve as a Chief Warrant Officer Five Special Agent for the Criminal Investigation Division Command, better known as CID. In 2011 he completed a combat tour of duty in Afghanistan while on special assignment to the Special Operations Command Europe. Visit his website athttp://www.gregorydlee.com/ and contact him at info@gregorydlee.com.


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