Figuring Out FISA - Part I - A Guy Named George

This is the first of three posts called "Figuring out FISA". My look into what the FISA Amendment Act of 2008 means and why the US Senate voted for it.

When the FISA Amendments Act of 2008 passed two weeks ago I was livid. What little I knew about it made it seem like our elected officials were on a rampage to destroy the Bill of Rights or at least the Fourth Amendment (commonly know as the right to privacy).

The Democratic held senate overwhelmingly passed the statute and Obama voted for it. It was like they had all gone insane! Especially Obama!

I settled on "I Call Bullshit" as the original title of this post because it had a nice ring to it and seemed to fit my mood. I was mad and I was going to kick some ass... Or at least type on it really hard...  

And then I sat down to write and I realized that I didn't actually know what I was talking about.  I had become convinced the statute was a bad idea and didn't understand what it did or why Obama and a majority of the Senate voted for it.  And yet I was against it...  Mad, but clueless; pretty much your average American.

I didn't like being clueless so I jumped into research mode and quickly found myself in a labyrinth of American history and legal ambiguity that gave way to a moderately informed opinion of the FISA Amendment Act of 2008.

A few people have asked me to jump to my conclusions, so I'll share one of them now. Without context we have no hope of understanding the FISA Amendment Act of 2008. I hope to provide that context over the next three posts. This first post covers my research of the events that lead up to FISA's creation.

What I discovered is a fascinating story and it all starts with a guy named George...

The History Leading up to FISA

George had a problem. He was the King (George II) of Britain and his American colonists weren't paying him enough taxes. It was the late 1750s and from the colonists' perspective: The King isn't doing anything for us so why pay him taxes?  So the colonists took up smuggling to avoid paying taxes and George started losing money. Lots of money.

George wanted to put the screws to the smugglers, but he wasn't exactly sure who was a smuggler and who was a king-fearing-honest-tax-payer. So he hired a bunch of bureaucrats to spy on the colonists.

To make it all legal he gave the bureaucrats a piece of paper, called a Writ of Assistance, which granted them the authority to search a specific colonist any time, anywhere, as often as the bureaucrat wanted. The bureaucrat could also transfer the writ to someone else, so if he wanted to bug your neighbor for a few years he could simply change the name on the writ. 

The colonists found bureaucrats, writs, and the King to be superbly annoying.  Their one bastion of hope was the knowledge that Writs of Assistance expire 6 months after the authorizing King died. So they were all pulling for George to choke on a pretzel or something like that.

King George II died on the toilet, much the way Elvis did.  The irony was completely lost on the colonists as Elvis hadn't been born yet.  There was some brief celebration on the part of the colonists. Unfortunately for them there was another guy named George who took over where the last George left off. Seriously, what were the chances. Two Georges in a row!?!

King George III tried to keep the writs in place, but over the next 14 years he gradually tired of the continuous legal battles and eventually declared martial law in the colonies.
By 1776 a group of colonists were finally fed up with George so they wrote and signed The Declaration of Independence. If you haven't read it you should. The declaration goes something like this:

  • A short introduction followed by a list of all the things the colonists don't like about the King.  

  • Next they make a quick friendly shout out to all the Britains that aren't named George

  • Finally they tell the King they are declaring themselves free of him so he can forget about any more taxes.

I added the bit about taxes but the rest is in there in big font on one piece of paper right above John Hancock's signature.

The King didn't take kindly to being told to sod-off and the resulting war lasted until 1783. During that time, Britain got rid of the Writ of Assessment as a legal tool for spying, but the colonies adopted it. Had they learned nothing!?!

Actually they had. In 1791 the Fourth Amendment to the Constitution was put into law. It requires the government go to a judge with a really good reason before they can infringe on your privacy. And then even if the judge says OK (gives them a warrant), everything is on the public record and the government has limits on what they can look at and how long they can look.

The next ~200 years passed without incident...

In the late 1970s the US government had a problem.  They wanted to spy on some foreigners, but the 4th amendment required they explain why they were doing it in a public court. This would no doubt tip off the foreigners and take all the fun out of the spying.  The government needed a way to get a warrant in secret.

To make things even more complicated Nixon had just resigned over Watergate and the country was feeling sensitive to spying.

Enter the Foreign Intelligence Security Act (FISA)! FISA created a secret court that could grant the government secret warrants to spy on foreigners if:

  1. They have a good reason, and

  2. It doesn't violate a US citizens privacy (foreigners were fair game).

With FISA the government got to spy on foreigners in secret, and there were specific protections in the law that protected US citizens from spying even if a foreign spy target was involved.  In short, US citizens civil liberties were protected.

Once enacted into law, the only real FISA debate was whether the President needed permission to spy on foreigners or whether he already had that authority.  Limiting presidential power won the day but this was the beginning of the FISA debate over broad ranging unchecked powers for the President

These powers are part of a legal theory called the Unitary Executive which basically says the president's authority supersedes the other branches of government and he is basically King.

There is some historical precedent for this being a very bad idea. An unchecked executive is exactly the reason smugglers threw George out  200 years ago!

The Unitary Executive concept didn't get much traction in 1978 but the history of that era reads like the end of a movie trying to set up a sequel.  All they needed were the right circumstances and a new guy named George... 

Stay tuned for Part II - The Unitary Executive Strikes back

Update: Part II - The Unitary Executive Strikes back and Part III - The Pride of Rube Goldberg are now online.