A "Wall" was created between foreign intelligence investigations and domestic criminal investigations. The idea was to prevent the kind of secret dossiers being kept on American citizens during J. Edgar Hoover's tenure in the FBI. Those files, under a program called COINTELPRO, were obtained without informing the citizen being watched even though there was no evidence of a crime. The "Wall" was largely the result of a misunderstanding of what appears to have been a very difficult law to understand. The extreme right wing has used the Clinton Administration's experiences with the "Wall" as justification to remove the wall to enable law enforcement and intelligence agencies to share information. But do we really want government spying on citizens just because their beliefs are outside of what the current FBI administration calls "mainstream"?
The Department of Homeland Security has had difficulty making wise choices on domestic spying. The department did not include well-known right-wing groups on their list of adversaries with a history of violence, while left-wing groups, that are known for only destruction of property. The list includes the Animal Liberation Front (ALF) and the Earth Liberation Front (ELF) that promote nonviolence toward human life. Several groups with recent high-profile terror prosecutions, including the Texas-based Holy Land Foundation and Florida professor Sami al-Arian, were left off the list.
Obsidian Wings does a good analysis of the WaPo updating our lost of privacy. Thanks to Gary Boatwright from Seeing the Forest for the link.
"Under the Fourth Amendment, a search warrant must be based on probable cause to believe that a crime has been or is being committed. This is not the general rule under FISA [the statute creating the requirements for domestic surveillance by intelligence agencies]: surveillance under FISA is permitted based on a finding of probable cause that the surveillance target is a foreign power or an agent of a foreign power, irrespective of whether the target is suspected of engaging in criminal activity. However, if the target is a "U.S. person," there must be probable cause to believe that the U.S. person's activities may involve espionage or other similar conduct in violation of the criminal statutes of the United States. Nor may a U.S. person be determined to be an agent of a foreign power "solely upon the basis of activities protected by the first amendment to the Constitution of the United States.""
So: FISA warrants do not require any evidence of actual criminal activity, and might seem to be in conflict with the Fourth Amendment. The reason they have been held not to be unconstitutional is simply that they are not supposed to be used for criminal investigations; for this reason, I'm not sure this new proposal, according to which intelligence agencies would be allowed to use FISA searches to conduct criminal investigations, is not itself unconstitutional. But it gets worse: as of 2002:"The FISA review court was created by Congress along with the Foreign Intelligence Surveillance Court in 1978 to authorize search and surveillance warrants for foreign intelligence targets. The review court has never convened because the lower court, known as the FISA court, has never turned down a government surveillance request. The court has approved approximately 13,000 applications since its inception. And just once, in 1997, the government withdrew a request that the court had found deficient."
That's right: as of 2002, only one request for a warrant had been deemed inadequate. Ever. Moreover, since no one has to inform the object of a FISA warrant that that warrant exists, people do not generally get to challenge them. Everything about it is secret.
The 'wall' separating intelligence agencies from law enforcement agencies existed because of the different purposes for which the two collect information, and the different rules to which they are subject. The wall was never impermeable: information obtained through FISA warrants can be, and has been, used in criminal trials. But it exists for a very good reason: to allow intelligence agencies to collect information on agents of foreign powers without allowing them to spy on citizens more generally, and to prevent the government from using FISA warrants, with their looser rules, whenever it can't get a normal warrant.
Giving intelligence agencies the power to carry out criminal investigations against US civilians would gut the wall entirely. And it would do so without overcoming the one real drawback of the wall: the fact that some information cannot be shared between agencies. The proposals to grant greater powers to intelligence agencies simply seem to multiply the number of agencies that can investigate citizens, not to ensure that those agencies share information with one another. (One of the many questions I have about these proposals is: why do we need another agency empowered to do criminal investigations in the US? Doesn't the FBI suffice?)
[From WaPo:]Kate Martin, director of the Center for National Security Studies, said the data-sharing amendment would still give the Pentagon much greater access to the FBI's massive collection of data, including information on citizens not connected to terrorism or espionage. The measure, she said, "removes one of the few existing privacy protections against the creation of secret dossiers on Americans by government intelligence agencies." She said the Pentagon's "intelligence agencies are quietly expanding their domestic presence without any public debate.""
Typical of the Bushies to eliminate all debate on losing our civil liberties.
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