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NO PROTECTION FOR U.S. CITIZENS
This article is reprinted from Full Disclosure. Copyright (c) 1986
Capitol Information Association. All rights reserved. Permission is hereby
granted to reprint this article providing this message is included in its
entirety. Full Disclosure, Box 8275-CI3, Ann Arbor, Michigan 48107. $15/yr.
The Minimization Procedure required by the Foreign Intelligence
Surveillance Act (50 U.S.C. 1801) offers no protection to United States
Citizens.
The U.S. government's secret spy court authorized under the Foreign
Intelligence Surveillance Act is used by intelligence agencies (CIA, FBI,
NSA, etc) to obtain authorization to electronically spy on foreign powers and
their agents within the United States.
The Act requires a minimization procedure to be followed with respect to
information obtained on U.S. persons in the course of the surveillance. When
a law enforcement agency seeks to electronically surveil a suspected criminal
they are required to demonstrate probable cause that a crime has been or will
be committed in order to obtain a search warrant. However, for an
intelligence agency to obtain a warrant from the United States Foreign
Intelligence Court (USFISC), they only need to demonstrate probable cause
that the target is a foreign power or an agent of a foreign power. That is
to obtain a warrant in a normal Federal or State Court, there must be
evidence of a crime, but to obtain a warrant in the USFISC there merely needs
to be an indication that the target might be associated with a certain class
of people.
To "protect" U.S. persons a minimization procedure is employed with
respect to the disclosure of information obtained during the surveillance of
foreign powers and their agents. Full Disclosure has obtained a copy of a
FBI warrant application filed with the USFISC which details the actual
minimization procedure. According to the application's Exhibit A which
details the procedure:
These procedures apply to the acquisition,
retention, and dissemination of nonpublicly
available communications and other information
concerning unconsenting United States persons
that is collected in the course of electronic
surveillance directed at the telephone
communications of this agent of a foreign power
and oral communications of this agent of a
foreign power...
When the FBI begins the surveillance, they will verify that the telephone
communications lines being intercepted at the residence and business are in
fact the telephone lines of the agent of the foreign power.
The FBI agents who monitor the communications are responsible for
determining if the information "intercepted must be minimized". Further, the
communications of United States persons (this includes discussions of U.S.
persons by foreign powers) will be subject to "continuing analysis to
establish categories of communications that are not pertinent to the
authorized purpose of the surveillance". The categories are to be
established after a reasonable period of monitoring the communications of the
foreign power. No information was provided which would indicate that
information categorized as not pertinent would be stored, processed or
disseminated any differently than pertinent information.
Access to information obtained regarding United States persons is to be
under strict controls. Use of the information is restricted to FBI
supervisory, investigative, and clerical personnel who have a need to know
the information for "foreign intelligence or law enforcement" purposes. Any
information which contains evidence of a criminal offense is retained until a
decision is rendered by prosecutive officials, and if the United States
person is prosecuted the information will be retained until the end of the
prosecution.
To further "protect" United States persons information regarding them
won't be disseminated without their consent, unless the information is
"evidence of a crime which has been, is being, or is about to be committed".
Such information can be disseminated to "Federal, state, local, or foreign
officials or agencies with law enforcement responsibility for the crime".
Information regarding U.S. persons which is not evidence of a crime, but
which reasonably appears to be foreign intelligence information can be
disseminated in a "manner which identifies United States persons only for
authorized foreign intelligence, foreign counterintelligence,
countersabotage, and international terrorism, or law enforcement purposes".
So far, there is little minimization (or protection) of information
regarding United States persons which was obtained in a manner inconsistant
with the Fourth Amendment warrant requirements. The last sentence of the
Exhibit appears to set forth the only protection afforded the United States
person:
Any information acquired from electronic
surveillance of the target of a foreign power
which is disseminated for law enforcement
purposes shall be accompanied by a statement
that such information or any information
derived therefrom, may only be used in a
criminal proceeding with the advance
authorization of the Attorney General.
Prior to the passage of the Foreign Intelligence Surveillance Act, George
Hasen, Chairman of the Committee on Civil Rights wrote a letter to Senator
Inouye outlining this very problem. The text of his letter follows:
Dear Senator Inouye: We understand that your Committee has received from
the Committee on Federal Legislation of the Association of the Bar of the
City of New York its critique of the provisions of the proposed Foreign
Intelligence Surveillance Act of 1977 (S. 1506). Our Committee on Civil
Rights associates itself, generally, with that critique, but we disagree with
it in one important respect.
Both the Committee on Federal Legislation and the Committee on Civil
Rights are concerned because the standards imposed by S. 1566 for obtaining a
warrant to engage in electronic surveillance do not, in some instances,
require a probable cause showing of criminal conduct. It is the considered
judgment of the Committee on Civil Rights that a CRIMINAL STANDARD IS
ESSENTIAL to the bill and, unlike the Committee on Federal Legislation, we
believe that unless S. 1566 is amended to provide such a standard, it should
not be enacted.
We think that is important to remember why this legislation is needed.
Clearly it is not needed to empower government agencies to carry on
electronic surveillance. Rather, the need is for legislation which will
limit and control electronic surveillance and the consequent government
intrusion into the private lives of American Citizens. The findings of
Congressional committees which over the last several years have investigated
intelligence agency abuses HAVE MADE THIS ABUNDANTLY CLEAR. Based on such
findings, the Church Committee specifically concluded that no American should
"be targeted for electronic surveillance except upon a judicial finding of
probable criminal activity" and, further, that targeting "an American for
electronic surveillance in the absence of probable cause to believe he might
commit a crime, is unwise and unnecessary." (Intelligence Activities and the
Rights of Americans, Final Report of the Select Committee to Study
Governmental Operations with Respect to Intelligence Activities, U.S. Senate,
94th Cong., 2nd Sess. (1976), at 325.)
Further the Supreme Court has warned of the danger to First Amendment
rights inherent in national security surveillances:
"National security cases . . . often reflect a convergence of First and
Fourth Amendment values not present in cases of `ordinary' crime. Though the
investigative duty of the executive may be stronger in such cases, so also is
there greater jeopardy to constitutionally protected speech. `Historically
the struggle for freedom of speech and press in England was bound up with the
issue of the scope of the search and seizure power,' Marcus v. Search
Warrant, 367 U.S. 717, 724 (1961). History abundantly documents the tendency
of Government -- however benevolent and benign its motives -- to view with
suspicion those who most fervently dispute it policies. Fourth Amendment
protections become the more necessary when the targets of official
surveillance may be those suspected of unorthodoxy in their political
beliefs. The danger to political dissent is acute where the Government
attempts to act under so vague a concept as the power to protect `domestic
security.' Given the difficulty of defining the domestic security interest,
the danger of abuse in acting to protect that interest becomes apparent.'
United States v. United States District Court, 407 U.S. 297, 313 (1971).
Notwithstanding these warnings, S. 1566 would permit the electronic
surveillance of United States citizens and other persons for 90 days or more
without any showing that they are engaged in, or likely to be engaged in,
criminal activity. Section 2521(b)(2)(B)(iv)/1 would go even further and
would permit the electronic surveillance of individuals who "knowingly" aid
and abet persons whose conduct may be entirely lawful.
Surely, the burden of justifying such a departure from basic Fourth
Amendment principles -- if indeed it can be justified -- ought to be on the
proponents of such provisions. And, surely, they ought to be able to specify
precisely those lawful activities of American citizens which are so vital to
the safety of the nation that the Government must be permitted to
surreptitiously gather information about them and, worse, to do so by such an
intrusive method as electronic surveillance. In our opinion, however, two
Attorneys General have been unable to sustain that burden, and the few
examples are simply unconvincing. In our view, the necessity of a
non-criminal standard has not been demonstrated, and it should, therefore, be
rejected.
There is another and perhaps even more important reason why such a
standard should not be accepted. If, in this first legislative attempt to
control searches in national security matters, Congress authorizes the most
intrusive and least precise of techniques -- electronic surveillance -- where
no crime is involved, what justification will there be for barring in similar
situations more specific methods such as surreptitious entry and mail
openings? And if a non-criminal standard is necessary to protect the
national security where the connection with a foreign power can be as tenuous
as that provided in S. 1566, what arguments can be made against a similar
standard in domestic situations where the perceived danger to national
security may be just as great?
S. 1566 represents in some respects an advance over earlier proposals,
but in out view, IF A NON-CRIMINAL STANDARD IS RETAINED, ENACTMENT OF THIS
LEGISLATION WILL LEGITIMIZE THE VERY CONDUCT IT OUGHT TO PROHIBIT AND WILL
CONSTITUTE A SERIOUS BLOW TO CIVIL LIBERTIES.
If permitted by your procedures, it would be appreciated if this letter
were made a part of the record of the hearings of your Committee on this
bill. [emphassis added]
/1 This section was passed into law.
part of the record of the hearings of your Committee on this
bill. [