Cynthia A. Brown and Carol M. Bast: Who’s Listening, Now? An Examination of the Government’s Use of FISA Evidence in Criminal Prosecutions
Workshop draft abstract:
Our nation’s national security efforts over the last decade generated a multitude of policy changes, including a redesign of the Foreign Intelligence Surveillance Act of 1978 (FISA). FISA once prescribed procedures mostly for electronic surveillance and physical searches necessary for gathering intelligence information on foreign soil and from foreigners. Today, FISA outlines the process for conducting surveillance and searches by federal authorities of individuals, including American citizens within the United States, suspected of espionage or terrorism against the United States on behalf of a foreign power. As a result of the many amendments since 9/11, the original legislation is all but unrecognizable, and the consequences of these amendments to Americans’ privacy are largely unknown. We do know that the administration’s requests for FISA surveillance have increased nearly 200 percent in the most recent eight years as compared to the statute’s first 23 years; restrictions on surreptitious surveillance of Americans under FISA have been greatly relaxed; and criminal cases indicate an increase in the government’s use of evidence obtained through FISA surveillance in the prosecution of ordinary crimes. This research is an empirical legal study examining the content of all reported federal cases involving FISA evidence. This study presents information that will better inform the impact FISA’s redesign is exacting on Americans’ privacy as our nation continues to struggle to strike the difficult balance between security and civil rights.
Carol M. Bast & Cynthia A. Brown, A Contagion of Fear: Post-9/11 Alarm Expands Executive Branch Authority and Sanctions Prosecutorial Exploitation of America’s Privacy
Comment by: Laura Donohue
Workshop draft abstract:
Following the attacks on September 11, 2001, the United States launched the “War on Terrorism” or “War on Terror” as the action has become known. According to the Bush Administration, the phrase encompassed the nation’s military, political, legal and ideological conflict with Islamic extremism and extremists’ use of terrorism to propel their agenda. Ironically, Al-Qaeda’s weapon, the use of fear as a means of coercion, in some respects now serves dually as a tool for some of our nation’s leaders. The very same influence of fear that served as the terrorists’ objective is also used by government leaders to coerce expanded government power at the expense of individual liberties. In essence, the fear created by the terrorists has become a contagion of fear with the accompanying contagion-like effects. The influence of that fear, particularly of further terrorist attacks, is used by American leaders to justify subverting the nation’s constitutional freedoms and guarantees, the very same freedoms and guarantees that Operation Enduring Freedom is fighting to protect. As a result, many Americans are quick to support any government action which combats this threat and ensures national security.
After September 11, this contagion of fear stimulates the public support needed by government officials to further political and legal agendas that would otherwise be significantly more difficult, if not impossible, to achieve. One such agenda concerns the issue of privacy and government surveillance, specifically as these are impacted by the Foreign Intelligence Surveillance Act (FISA). It seems that individuals are willing to cede communication privacy to the government in exchange for national security without realizing the ramifications of their actions. This paper examines the need for balance between privacy and national security under FISA and policy considerations for the future.