FISA

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EWang
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FISA

Postby EWang » Wed Dec 16, 2009 4:46 pm

As Mr. Fenster and Ms. Morrison mentioned in Debate today, we haven't been doing much Debate on the forums. FISA is a really interesting and controversial topic so get debating! Here's the brief:

Model Congress
Foreign Intelligence Surveillance Act
January 6


One of the primary roles of government is to protect its citizens from foreign invasion or attacks on their safety. As Sun Tzu said, “All warfare is based on deception.” Intelligence gathering, dissemination, and exploitation are of the utmost importance in national security matters. In the pre-Cold War era this focused on troop movements and supply trains; then, nuclear stockpiles were added to the mix; now, the priority is preventing the next terrorist attack. Unfortunately, intelligence, though vital, is by its nature something that must generally be sought through covert means, and the government must do its utmost to protect both the bodies and civil liberties of Americans. Both a police state and an absence of defenses are unacceptable.

The Foreign Intelligence Surveillance Act, first passed by Congress in 1978, was one of the first pieces of legislation designed to regulate advanced espionage, including electronic surveillance. At first the act only covered the communications foreign powers or agents of foreign powers, which included spies and terrorist groups but which made sure to minimize the targeting of United States nationals. FISA primarily covered activities such as wiretapping. At the time of its passage, President Carter hailed it as striking a remarkable balance between civil rights and security.

The procedure for wiretapping outlined in FISA is designed to combine flexibility with oversight. Warrants are needed to surveil a target, and the warrant must come from the Foreign Intelligence Surveillance Court. FISC is a secret court, and at the time of its creation it consisted of seven federal district judges, appointed by the Chief Justice of the Supreme Court, who each served a term of 7 years and could not serve again. The office of the Attorney General collects requests for electronic surveillance from the appropriate federal officers or the President. The requests are then sent for modification or approval. Warrants are given for the acquisition of technical intelligence. They last for five years.

Although ideally surveillance would involve a warrant obtained beforehand, the nature of intelligence is that a lot of it is opportunistic and based in small periods of time. There is always the danger that during the time it takes to acquire a FISA warrant from FISC, crucial last-minute information about an attack could be relayed and made available for interception. Because of this, there are procedures for controlled warrantless wiretapping in place. If the Attorney general can show that surveillance is only directed at foreign powers, the President can authorize that surveillance. In a second circumstance, the federal government can engage in surveillance in an emergency situation only if the Attorney General feels that a warrant could have been obtained anyway. Finally, the federal government can engage in surveillance in the first 15 days after a declaration of war by Congress.

The preservation of the warrant system is important due to the need to protect American civil liberties and thus justify the continued existence of and loyalty to the state, while actually maintaining protection of the United States and its interests. The Fourth Amendment to the Constitution protects against “unreasonable searches and seizures” and demands warrants when searches are carried out. For years this was not highly considered and presidential power was extensive and without regulation. The Church Committee, for example, uncovered several instances of abuse of power and surveillance by the various intelligence agencies and the President. Those involved with electronic surveillance included spying on individuals such as Civil Rights activists, Vietnam War protesters, and others; spying on religious and academic organizations in the United States; and the passing of a document to President Kennedy essentially telling him to ignore certain parts of the Constitution in order to defeat enemies of the nation in matters of intelligence. Revelations such as this and the Watergate Scandal made the citizens of America want more oversight of their elected officials, leading to the creation of FISA. After all, in the Supreme Court’s decision in Katz v. United States, the Fourth Amendment protected “people, not places”, when the person had a “reasonable expectation of privacy”.

Following the events of September 11, 2001, American support for counterterrorism surged. In the heat of the moment, the PATRIOT ACT passed, which strengthened the federal government’s powers in FISA, among other things. One of its more significant changes was to change the purpose of electronic surveillance. At first “the purpose” had been to collect foreign intelligence; now this was “a significant purpose”. Also, intelligence agencies could share information with law enforcement and look for information in emails. Roving wiretaps were permitted, and the amount of FISC judges was raised to eleven. In 2008 the FISA Amendments Act raised the time in which warrantless wiretapping could take place to one year.

A public backlash against electronic surveillance came with the 2005 discovery of the Terrorist Surveillance Program. It was revealed that President Bush had authorized massive amounts of wiretaps by the National Security Agency in the fall of 2001, without bothering with the use of FISC. The questions of the programs constitutionality and effectiveness are up for debate. Another thing that worries opponents of the current system is the idea that FISC only serves as a rubber stamp for federal decisions. Between 1997 and 2002, FISC approved 5335 surveillance requests and denied only one. Of course, the argument could be made that this was because good evidence was presented, and it would be hard to prove otherwise, as the records are kept secret. There have also been occurrences of NSA employees abusing their power to listen to personal conversations, which ought to be addressed.

The overall issue for Congress now is how to protect the nation while protecting civil liberties. There are many different angles to approach this issue on that could sustain hours of debate: FISC judges, the warrant process, the time allowed for warrantless wiretaps, the minimization procedures, etc. This is a vital issue, as it covers the area between a lack of safety and a lack of freedom. The nation needs to protect both.

Further Study
http://idia.net/Files/ConferenceCommitt ... ngFISA.pdf
http://abcnews.go.com/Blotter/story?id=5987804&page=1
http://en.wikisource.org/wiki/Foreign_I ... ct_of_1978

I'd also like to remind Senators Otrimski and Skeele that bills should be up two weeks prior to the pertinent meeting. That means the FISA bill needs to be posted by next Wednesday (12/23).

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Re: FISA

Postby gotrimski » Wed Dec 30, 2009 6:58 pm

An Act to Reform FISA

Sponsored by Senator Otrimski

BE IT HEREBY ENACTED by the United States Congress Assembled:

Whereas the Foreign Intelligence Surveillance Act, USA PATRIOT Act, and the Protect America Act have violated the 4th Amendment of the Constitution,

Sec.1: All provisions which enable the wiretapping of US Citizens without a warrant within FISA and its subsequent amendments are hereby stricken;

Sec.2: The Foreign Intelligence Surveillance Court of Reviews shall be removed;

Sec.3: All applications for search warrants within the provisions of FISA shall be heard by the Foreign Intelligence Surveillance Court only, with no opportunity for appeal;

Sec.4: The Lone Wolf Amendment of 2004 is hereby stricken;

Sec.5: This Bill shall take effect 91 days after passage.

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Re: FISA

Postby gotrimski » Wed Dec 30, 2009 11:50 pm

SPEAKERS

1st Pro: Garrett O
1st Con: Shree (sorry, Vaibhav, he agreed first)
2nd Pro: Betsy Skeele
2nd Con: Margaret Cyr-O

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Re: FISA

Postby EWang » Thu Dec 31, 2009 2:35 pm

Wow, a complete 360 from a year ago. I have a problem with the preambulatory clause. First of all, when did Congress become the authority for interpreting the constitutionality of past legislations? And even more importantly, if Congress believes that the Foreign Intelligence Surveillance Act, USA PATRIOT Act, and the Protect America Act are all unconstitutional, wouldn’t it be more appropriate to repeal the acts instead of merely offering an opinion in the pream?

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Re: FISA

Postby SRaghavan » Sat Jan 02, 2010 11:42 am

I will speak second pro.

Garrett is already doing first pro, right?

And one question: Isn't it likely that citizens will lean towards the FISA when in times of crisis (WTC attack) and disagree with the FISA when things are going smoothly? Being so, wouldn't it be smart to simply have heavy protection against foreign attacks and surveillance and sacrifice people's rights instead? I mean, it really boils down to which is more important: Having rights or having your life and I think the choice is quite obvious.

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Re: FISA

Postby galukal » Sat Jan 02, 2010 2:57 pm

"Having rights or having your life and I think the choice is quite obvious."- Shree

Nazis, Soviets, Cubans, East Germany, China, North Korea, Zimbabwe, multiple banana republics, Rome... see, losing the first (rights) makes it a lot easier to lose the second (lives) because a strong preservation of rights making taking lives much harder. The only reason we can laugh at the idea of government taking lives here is because we've worked to limit it for so long. In countries without this tradition, it's a lot easier for government to become abusive.

Betsy is doing second pro. Since you seem opposed to the security reduction, you should do one of the cons.

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Re: FISA

Postby EWang » Sat Jan 02, 2010 6:26 pm

According to the Declaration of Independence, the unalienable rights of humans consist of Life, Liberty, and the pursuit of Happiness. Although I certainly strongly believe in civil liberties, there's a good reason why Life comes before Liberty: Without life, what is liberty?

Shree's question, though, isn't a easy or obvious question. If I had to choose between my life and my liberty, I would choose my life. If I had to choose between my life and everyone's liberty, I would choose everyone's liberty; however, if I had choose between everyone's life and everyone's liberty, I'm sure the vast majority of people would want me to choose everyone's life. In other words, there's a fine life that has to be drawn between protecting America and America's civil liberties. We have to analyze FISA, the Patriot Act, etc. in terms of how much security they provide vs how much freedom they violate, a very complex and subjective evaluation.

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Re: FISA

Postby athakker » Sat Jan 02, 2010 8:39 pm

Taking Shree's example of the WTC: The attacks of the WTC took lives, and therefore there was massive change in the way the West looked at the Middle East and vice-versa. George Bush increased security and waged a "War against Terrorism" in retaliation of LIVES being taken. So apparently, the Bush administration did believe that lives are important than rights. Which is also why George Bush pushed for the Protect America Act:TO SAVE LIVES. But in the process, some believed he did take some rights. Apparently Senators Otrimski and Skeele also believe so. (speculation)

Personally, I do agree with Eric and, with regard to the above, so does George Bush.

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Re: FISA

Postby bfenster » Sun Jan 03, 2010 9:07 am

I'll take Patrick Henry's side in the debate.

Oh George... who are the con speakers?

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Re: FISA

Postby gotrimski » Sun Jan 03, 2010 12:31 pm

I understand Shree and Eric's arguments completely. Liberty is nothing without life, and vice versa. In times of crisis, the population tends to lose sight of its liberties for a short period of time in favor of absolute security. As the time gap increases and we become further removed from our last big national crisis, we tend to move in the opposite direction, in favor or liberty when (we believe) our security and our safety is no longer threatened. For this reason, it is essential that we find a permanent balance between Liberty and Security.

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Re: FISA

Postby galukal » Sun Jan 03, 2010 4:23 pm

bfenster wrote:I'll take Patrick Henry's side in the debate.

Oh George... who are the con speakers?


I want Shree to be one (waiting for reply) and I'm working on getting a second.

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Re: FISA

Postby JCasto » Sun Jan 03, 2010 5:44 pm

"Without life, what is liberty?" You've got it backwards. Would you really be OK with living a life of slavery, exploitation and control? What is LIFE without LIBERTY? "Give me liberty, or give me death!"

You know what, the argument hardly matters. I'm very busy with Mock Trial right now, but statistics, data, etc. overwhlemingly prove that the security measure changes really have not helped that much. As we learned during the Bush administration, most of these changes were exploited for non-terror related purposes.

One thing to consider... If we destroy the very freedom and civil liberties our country was founded on, who has won... us or the terrorists?

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Re: FISA

Postby EWang » Sun Jan 03, 2010 8:24 pm

JCasto wrote:"Without life, what is liberty?" You've got it backwards. Would you really be OK with living a life of slavery, exploitation and control? What is LIFE without LIBERTY? "Give me liberty, or give me death!"

How do I have it backwards? Life without liberty would be bad and of course I wouldn't be okay with it. But to the question of what is life without liberty, the answer lies in the millions of enslaved people throughout the ages. As bad as their lives got, they still maintained some degree of love and joy and purpose. On the other hand, can you describe liberty without life?

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Re: FISA

Postby galukal » Mon Jan 04, 2010 6:02 pm

Being extorted, plundered, and savaged by others repeatedly isn't much of a purpose.

JCasto wrote:One thing to consider... If we destroy the very freedom and civil liberties our country was founded on, who has won... us or the terrorists?


Bingo. We only win by winning and remaining free, not be compromising.


"Any society that would give up a little liberty to gain a little security will deserve neither and lose both."
Benjamin Franklin

Emphasis mine. We have only been safe throughout history because of our long tradition of civil liberties, not despite of it. A government is a great cabal of force without severe limitations which will allow it to be useful. Our liberties give us the power to survive issues without descending to desperate measures, i.e. FDR's inability to kill checks and balances even during the Depression. We are only safe so long as power is divided and limited.

"They are not to do anything they please to provide for the general welfare.... [G]iving a distinct and independent power to do any act they please which may be good for the Union, would render all the preceding and subsequent enumerations of power completely useless. It would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the United States; and, as they would be the sole judges of the good or evil, it would be also a power to do whatever evil they please."
-- Thomas Jefferson

Emphasis mine. It's the exact same thing. No group should have unlimited power and be able to abrogate its own limits at well. The odds of dying through a terrorist attack are low, and if we play our cards right we can defeat terrorists without defeating ourselves.

There is a higher chance of you being murdered by your average Joe: Would we allow warrant less wiretapping on everyone's house? Of course not. So why should we buy this argument now?

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Re: FISA

Postby VSharma » Tue Jan 05, 2010 5:15 pm

may i be first con?


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