TRIALS BY FIRE - Belfer Center for Science and International Affairs

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TRIALS BY FIRE - Belfer Center for Science and International Affairs

George W. Bush shakes hands with U.S. Senator Arlen Specter after signing H.R. 3199, the USAPATRIOT Improvement and Reauthorization Act of 2005 in the East Room of the White House.(White House photo by Kimberlee Hewitt)In 2002, then-NSA Director Hayden argued that countering evolving nationalsecurity concerns required more flexible legal tools, as terrorists could shiftmodes of communication just as quickly and easily as criminals. He said,“We’ve gone from chasing the telecommunications structure ofa slow-moving, technologically inferior, resource-poor nationstate”—thatis, the USSR—“to chasing a communications structurein which an al Qaeda member can go into a storefront in Istanbuland buy for $100 a communications device that is absolutelycutting edge, and for which he has had to make no investment fordevelopment.” 82Critics argue that roving wiretaps as conducted under FISA as opposed toTitle III lacked appropriate checks and balances. After all, the governmentwas neither required to identify the target nor the location of the surveillanceto FISC, which some believed allowed the FBI to monitor virtually anyone.This would thus be in violation of the Fourth Amendment that all warrants“particularly describ[e] the place to be searched.” The executive branch has52 Trials by Fire: Counterterrorism and the Law

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