A Shot Across the Bow From the Darkness

Old Blog Import

Ironically, FISA was enacted as a reform in the wake of the Watergate scandal. Richard Nixon previously asserted the right to conduct unilateral searches in the name of national security, and Congress sought a compromise to create some form of legal process and review. It was a compromise that many would come to regret. While the framers required the government to satisfy probable cause in any search or seizure, FISA allows secret searches of citizens without meeting that standard.

That was not the only change.

Under federal law, a citizen who is subject to a government wiretap is eventually notified of the intrusion. This creates a certain deterrent of government abuse.

Under FISA, a team can enter your home, quickly scrub your computer, wire your house, install a device to record every keystroke on your computer and rifle your files. There is little deterrent of abusive because the victims are unaware that their privacy has been invaded.

It is not surprising that FISA has become the destination of choice for investigators with a hankering for a search but a paucity of evidence. While these searches were meant to be the exception rather than the rule, FISA eavesdropping orders now outnumber conventional ones.

In its opinion, the court acknowledges that "many hundreds of citizens" have been searched under its secret orders. Yet even this court could not stomach what Ashcroft demanded in secret papers.”

Los Angeles Times