Foreign Intelligence Surveillance Act

PO1 William "Chip" Nagel
..."The Birth of FISA

Historically, Presidents steadfastly claimed an inherent constitutional authority to conduct warrantless electronic surveillances for non-criminal, national security purposes. This authority was grounded in the mandate found in Article II of the Constitution for the Executive to “preserve, protect and defend the Constitution of the United States.” This position was accorded great judicial and congressional deference for many years, but that began to change in the early 1970’s. 1972, the Supreme Court decided the case of United States v. United States District Court, better known as the “Keith” case, in which the Court considered the legality of an Attorney General authorized warrantless electronic surveillance of a U.S. citizen accused of bombing a CIA building. The Court rebuffed the government’s entreaty to recognize a foreign intelligence exception to the per se warrant requirement, holding that the Fourth Amendment prohibited warrantless surveillance directed at domestic threats to U.S. national security. The Court expressly refused, however, to decide the legality of warrantless surveillances where “foreign powers or their agents” were involved, leaving open the issue of the Executive’s authority to direct such operational activities at those persons or entities. The Court also strongly urged the Congress to provide a judicially-manageable standard applicable to electronic surveillances conducted for national security purposes.