No License to Spy indiscriminately.(COMMENTARY)

The Washington Times (Washington, DC), November 26, 2002 | Go to article overview

No License to Spy indiscriminately.(COMMENTARY)


Byline: Bruce Fein, SPECIAL TO THE WASHINGTON TIMES

Newspapers are too often not the first drafts of history, but the originators of historical fables. That pejorative applies to many of the news reports of last week's decision by the United States Foreign Intelligence Surveillance Court of Review approving dual purpose spying.

The Court of Review concluded that neither the Fourth Amendment nor the Foreign Intelligence Surveillance Act (FISA) prohibits search warrants issued by a neutral magistrate to obtain foreign intelligence when a parallel or more important objective is the prosecution of espionage or terrorist-related crimes. Despite the tightly circumscribed holding, inexact and counterfactual news reporting raised the specter of a Gestapolike state. What do you think?

The Fourth Amendment customarily prohibits police searches unless a warrant is issued by an independent magistrate based on probable cause to believe evidence of crime will be discovered. When the government purpose is non-criminal, the standards for warrants are less exacting. The ultimate constitutional test is "reasonableness," informed by the vexing tradeoff in a free society between public safety and privacy from government snooping.

Under FISA, a warrant to conduct electronic surveillance to gather foreign intelligence is authorized if there is probable cause to believe the target is an agent of a foreign power and is using the places or facilities to be investigated. A foreign power is defined to include an international terrorist group, like al Qaeda or Hezbollah. FISA aims to confound international terrorism or sabotage or clandestine activities by foreign powers. Its chief mission is not criminal prosecution.

A U.S. person becomes subject to a FISA warrant as a foreign agent only by flirting with foreign intelligence crimes. The agent designation is triggered by knowingly engaging in "clandestine intelligence gathering activities ... which involve or may involve a violation of criminal statutes of the United States," or knowingly engages in "sabotage or international terrorism."

A warrant also requires a government showing that normal investigative techniques would be futile, and, that procedures have been established to ensure minimization of privacy intrusions consistent with the purpose of the surveillance.

Several years after its enactment in 1978, FISA came to be interpreted by the Justice Department and federal courts as authorizing warrants only when their "primary purpose" was foreign intelligence, as opposed to criminal prosecution. At that time, fears of global international terrorists a la Osama bin Laden and his al Qaeda fanatics seemed overwrought or exaggerated.

Traditional concerns for privacy - the sacred right to be left alone by government - trumped any relaxation of regular constitutional thresholds for spying on American citizens suspected of attachment to a foreign nation or terrorist organization with the goal of criminal punishment. And that resistance to lowering the Fourth Amendment bar developed despite its perverse consequences.

Suppose the government sought surveillance of a foreign agent both to prosecute a foreign intelligence crime and to collect intelligence about co-conspirators or foreign plots in order to shipwreck planned terrorism or espionage. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

No License to Spy indiscriminately.(COMMENTARY)
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.