TRIALS BY FIRE - Belfer Center for Science and International Affairs

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TRIALS BY FIRE - Belfer Center for Science and International Affairs

How FISA WorksIntelligence agencies do not need to obtain warrants for collecting informationon foreign adversaries and foreign terrorists that communicate electronically(i.e. via cellphones) outside the United States. Officials must use a FISAwarrant, however, when electronic communications transit or occur withinthe US, involve US citizens or utilize US corporate entities in some manner.Furthermore, a significant purpose of the electronic surveillance must be to obtainintelligence in the US on foreign powers (such as enemy agents or spies)or individuals connected to international terrorist groups. 73In order to receive a FISA warrant, the government must show probable causeto the FISC that the “target of the surveillance is a foreign power or agent of aforeign power.” Furthermore, since the Fourth Amendment to the Constitutionprotects US citizens, legal residents and US corporations (known as USpersons) from illegal search and seizure, FISA explicitly states that, “no UnitedStates person may be considered a foreign power or an agent of a foreign powersolely upon the basis of activities protected by the First Amendment of theConstitution of the United States.”While surveillance of US persons is permitted under FISA, authorities must‘minimize’ and obscure the collection of information not directly applicable tothe intended target. These strict minimization procedures require officials toobscure the identity of any protected communications incidentally capturedas part of the surveillance. Unlike Title III criminal warrants, however, minimizationoccurs after collection under FISA.Controversy Regarding Electronic SurveillanceIn December 2005, it became public that President Bush authorized the NSAto conduct a warrantless surveillance program. 74 The White House stated thatthe program targeted the international communications of individuals connectedto al Qaeda or other foreign terrorist organizations. Skeptics of theprogram feared that the President had overstepped the bounds of his authorityand spied on Americans. The surveillance activities became known as eitherthe Terrorist Surveillance Program (TSP) or ‘warrantless wiretapping.’48 Trials by Fire: Counterterrorism and the Law

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