The Foreign Intelligence Surveillance Act (FISA) has featured prominently in contemporary debates over the prosecution of the war against jihadist extremists. Originally passed in 1976 as a reaction to Watergate abuses of presidential national security authority, FISA established the Foreign Intelligence Surveillance Court (FISC) and procedures for obtaining ex parte court authorization and warrants to conduct electronic and later physical surveillance or searches of persons and groups found to be agents of a foreign power, including designated foreign terrorist organizations. FISA warrants play a key role in the interceptions of telephone, email, and internet communications of Al Qaeda and other terrorist foes of the United States. But controversy has surrounded attempts through the USA-PATRIOT Act and other legislation to refine and update the law governing FISA. Are FISA warrants necessary in all instances and circumstances, or do there remain areas outside the domestic surveillance law that are more properly governed by war making power and the Executive Branch's authority under Article II of the Constitution? What is the appropriate mix of court oversight and judicial interposition to balance the need for effective counterterrorism with protection of constitutional rights - and just who is entitled to claim those rights? Finally, who has standing to challenge the surveillance warrants requirements of FISA (see Clapper v. Amnesty International USA)? Our experts provide their thoughts on these issues and answer questions from callers on this previously recorded conference call.
- Mr. Alexander Abdo, ACLU's National Security Project
- Hon. Kenneth L. Wainstein, Cadwalader, Wickersham & Taft LLP
- Moderator: Mr. Dean Reuter, Vice President & Director of Practice Groups, The Federalist Society