Barack Obama is taking a lot of heat on the blogs for supporting the extension of FISA with some new quirks. Most of the people who are complaining probably never read the bill, and don't really understand what it does. I'll try to demystify this legislation.
For what its worth. I have only been able to find one conviction of an American using FISA evidence since PATRIOT, and in that case the agent involved obtained a warrant from the FISC. It is likely that this statute will join the thousands of volumes of United States Code that have entirely no direct affect on your life.
It seems like most of the fuss is over the Fourth Amendment to the Constitution:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The Supreme Court gives us an idea what this means in
Dalia v. United States, 441 U.S. 238, 255 (U.S. 1979):
First, warrants must be issued by neutral, disinterested magistrates. Second, those seeking the warrant must demonstrate to the magistrate their probable cause to believe that "the evidence sought will aid in a particular apprehension or conviction" for a particular offense. Finally, "warrants must particularly describe the 'things to be seized,'" as well as the place to be searched. (I removed the internal citations - MOB)
The Supreme Court has not reviewed a FISC warrant, but the 6th Circuit has a very good explanation in ACLU v. NSA.
The more obscure FISA warrant requirement involves a petition by a federal official, with the approval of the Attorney General, 50 U.S.C. § 1804(a), to a special FISA Court, § 1803(a), for an order approving the electronic surveillance for foreign intelligence purposes, § 1805, based upon "probable cause to believe that the target of the electronic surveillance is a foreign power or the agent of a foreign power," § 1805(a)(3)(A). The FISA petition and order must include, among other things, provisions to limit the duration, §§ 1805(a)(10), -(c)(1)(E), -(e), and content, §§ 1804(a)(6), 1805(c)(1)(C), 1806(i), of the surveillance, and provisions to ensure the minimization of the acquisition, retention, and dissemination of the information, §§ 1804(a)(5), 1805(a)(4), -(c)(2(A), 1806, 1801(h).
So, there is no violation of the Fourth Amendment in FISA. There is an issue regarding a warrant not being necessary when an American citizen calls a someone in another country who is believed to be a terrorist. I am unable to find a single PATRIOT case that involves a criminal conviction without such a warrant.
Here is a case where a warrant was sought:
Ahmed Omar Abu Ali is an American citizen from Virginia.
In September 2002, at the age of 21, Abu Ali left his home in Falls Church, Virginia and traveled to Saudi Arabia to study at the Islamic University in Medina. Within a few months of his arrival in Medina, Abu Ali contacted Moeith al-Qahtani ("al-Qahtani"). Abu Ali and al-Qahtani had become friends two years earlier when Abu Ali attended an Islamic summer study session in Saudi Arabia and, upon his return to Saudi Arabia, Abu Ali renewed the friendship. The two "often talked about jihad" and, in November 2002, al-Qahtani introduced Abu Ali to Sultan Jubran Sultan al-Qahtani ("Sultan Jubran"), who was also known by the name of "Ali." 1 Sultan Jubran had been a mujahid soldier during the United States bombing of Tora Bora in Afghanistan (a major battle between al-Qaeda/Taliban forces and United States forces during the Afghanistan [*5] invasion) and, when introduced to Abu Ali, was second-in-command of an al-Qaeda cell in Medina. Abu Ali "accepted and liked the idea" of meeting the "mujahid brother."
Some time later:
Abu Ali and al-Faq'asi met a number of times thereafter to discuss the Medina cell's plans for jihad. [According to] Abu Ali, al-Faq'asi "presented me with [two ideas:]"The first idea was to carry out a major operation that he would arrange." The second was "that I would go to the [United States], settle down, find work, lead a normal life, blend into American society and marry a Christian," which would allow him to "plan successive operations inside the [United States] for which . . . al-Faq'asi would send individuals to carry out." In other words, Abu Ali, [would] establish a sleeper cell within this country, and prepare for operation instructions and additional operatives to assist.After this introduction to al-Faq'asi, Abu Ali "became directly connected" to the leader of the cell [and] "discuss[ed] how to carry out the assignment in the [United States]." According to Abu Ali, he met with al-Faq'asi on six separate occasions to plan such terrorist operations within the United States. In the course of these meetings, Abu Ali suggested assassinations or kidnappings of members of the United States Senate, the United States Army, and the Bush Administration, a plan to rescue the prisoners at Guantanamo Bay, and plans to blow up American warplanes on United States bases and at United States ports, similar to the USS Cole operation. Al-Faq'asi suggested an operation similar to the 9/11 bombings, but which would originate in planes departing from Britain or Australia for Canada in order to circumvent the requirements of a United States visa to enter the country, and plans to assassinate President Bush.
[Abu Ali] also spoke on at least one occasion to Sheikh Nasser, a/k/a Ali al-Khudair, who "gave his blessing for the assassination of the President of the United States."
Sounds like someone a Christian woman would love to marry, can you imagine the craigslist personal ad? I will leave that for the comments. The story continues, there was a suicide bombing that killed 34 people. Abu Ali would try to create fake documents so the perpetrators could easily leave the country. FISA comes into play when Abu Ali's sname was found on a list at the raid of a safe house. After that the government sought and was granted a warrant to track Abu Ali's electronic communication. There was never a fourth amendment challenge because the procedure in ACLU v. NSA was followed.
The issue actually came under the Confrontation Clause of the Sixth Amendment which states that an accused person has a right to confront witnesses against him. Here the witnesses may divulge classified information. Let's return to the opinion.
[T]he government provided Abu Ali's uncleared defense counsel with slightly redacted copies of the classified documents, which it described as "newly declassified communications between the defendant and Sultan Jubran Sultan al-Qahtani occurring on May 27, 2003, and June 6, 2003," in their Arabic versions and with English translations, and advised counsel of the government's "inten[t] to offer these communications into evidence at trial as proof that the defendant provided material support to al-Qaeda." SCA 107. The first declassified document was dated May 27, 2003, and read as follows:Peace, How are you and how is your family? I hope they are good. I heard the news about the children's sickness. I wish them a speedy recovery, God willing. Anyway, please keep in touch. Greetings to the group, Hani.
SCA 108. The government intended to demonstrate that "Hani" was a known alias of Abu Ali and that "news about the children's sickness" was a coded reference to the raids conducted by the Mabahith and the arrest of the Medina cell members. The second declassified document was dated June 6, 2003, and read as follows:
To my brother, Peace to you with God's mercy and blessings. Thank God, I am fine. I was saved from the accident by a great miracle. I ask God that I would be thankful to Him. I have no idea about the others. However, according to what one doctor mentioned, 'Adil was not with them, thank God. The important thing is to get yourself ready for the medical checkup because you may have an appointment soon. Therefore, you must keep yourself ready by refraining from eating high fat meals and otherwise.
SCA 109. With regard to this communication, the government intended to demonstrate that the term "accident" was also a coded reference to the safe house raids. According to the government's theory, Sultan Jubran was advising Abu Ali that he did not know which cell members had escaped and which were captured, but that he and al-Faq'asi (a/k/a "Adil"), had escaped, and warning that Abu Ali might also be at risk.
A comparison of the classified and unclassified documents reveals that the declassified versions provided the dates, the opening salutations, the entire substance [*89] of the communications, and the closings, and had only been lightly redacted to omit certain identifying and forensic information.
Abu Ali moved the court pursuant to § 5 of CIPA to allow uncleared counsel to question the two government witnesses slated to introduce the substance of the classified communications into evidence "about their role in extracting, sharing, transferring, and handling [the] communications." [The] first witness was the compliance manager and custodian of records for the legal department of the communications carrier involved and the person tasked with the duty of responding to orders issued by the Foreign Intelligence Surveillance Act ("FISA") Court. The second was a Special Agent with the FBI, who received the information from the compliance manager. Because this line of questioning would lead to the disclosure of the classified information, the government opposed the motion.[The district court allowed the in camera hearing and] CIPA-cleared counsel conducted a thorough and unrestricted cross-examination of the compliance manager regarding the issues raised, but found it unnecessary to question the FBI agent. [The jury received unredacted versions of the communications above]
So, who won
Having carefully considered the circumstances and evidence below, we conclude that the district court's determination that the redacted classified information need not be disclosed to the defendant, his uncleared counsel, and the public was not an abuse of discretion. Nor do we think that the district court's exclusion of Abu Ali and his uncleared counsel from the CIPA proceedings ran afoul of the Confrontation Clause. The district court's admission of the classified versions of the documents as evidence for consideration by the jury without disclosing the same versions to Abu Ali, however, was clearly contrary to the rights guaranteed to Abu Ali by the Confrontation Clause.
That gaff, resulted in the need to resentence Abu Ali, but his conviction was affirmed. It seems clear, in the end that he received every procedural protection afforded to any criminal defendant.