It is true that our nation has a system of secret courts, which use secret evidence presented in closed, classified hearings before federal judges to grant secret warrants. ...FISA created the Foreign Intelligence Surveillance Court (FISC), made up of federal trial judges drawn from around the country, which may issue warrants to conduct a search for foreign intelligence information. ...
FISA requires a standard of proof for a warrant that is generally lower than that required for a normal criminal warrant. ... In the FISA context, the government need only show that the target is an agent of a foreign power, even if there is no evidence at the time that the target is breaking the law. ...
FISA is the primary method by which the U.S. government conducts surveillance and searches of domestic targets suspected of involvement in international terrorism. No court has ever found FISA to be unconstitutional.
I have to stop here for a second in wonder- not only is this utter B.S., but he knows it, since he wrote the justification for surveillance OUTSIDE of FISA. Okay, back to the article.
While the Patriot Act builds upon FISA, it creates no revolutionary change in the basic framework that has operated since 1978. ...The Acts most controversial provisions adapt FISA to the modern challenges posed by al-Qaeda-style terrorism. ...
Much of the Patriot Act contains common-sense adjustment that modernize existing laws like FISA to meet this new threat. ... The Patriot Act enabled FISA warrants to allow for continuing surveillance of a terrorist target even if the terrorist suspect switches communication devices and methods. ...
The Patriot Act changed the warrant standard from "primary purpose" to "significant purpose" in order to eliminate the wall of separation between foreign threats and domestic crimes, and to allow law enforcement to be used as a weapon against terrorism. Civil libertarians would have us believe that this allows intelligence agents to roam freely through the country. Nothing could be further from the truth Under the law as it existed both before and after the Patriot Act, the Central Intelligence Agency (CIA) is forbidden from carrying out intelligence activities within the United States. That Patriot Act did nothing to change that. The Patriot Act represents a modest retrenchment from an overcautious interpretation of FISA, but nothing like the practice of executing warrantless searches without judicial supervision, as occurred before 1978.
Yes, John C. Yoo really did write this. Fun, huh? Notice the sleight of hand, where he says 'civil libertarians are worried about intelligence agents, but then talks only about the CIA, leaving out the NSA, which he knew at the time was doing exactly that. But of course, the money quote is the part about the NOT permitting warrantless searches, like before 1978. Okay, on with the show.
In fact, Section 215 [FISA] offers more protection than was previously afforded under the old law. ... Section 215, unlike grand juries, requires prior review of the demand by a federal judge. The Patriot Act actually raises the procedural protections when the government demands such information.
I did not see this anywhere else, probably because this is a small-scale publication received primarily by alumni (I'm not one, but I work with a bunch). It seems rather explosive to me, given that the bad guys have been trotting Yoo out as their constitutional scholar to justify warrantless surveillance, that he wrote a rather long article claiming exactly the opposite.
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