Foreign Intelligence Surveillance Act, and the Future of Domestic Intelligence - Case Study Example

U.S.A. PATRIOT Act, Foreign Intelligence Surveillance Act, and the Future of Domestic Intelligence Abstract Since the terrorist attack on September 11, 2001, American government concentrated on tightening the national security by curbing the constraints of law enforcement agencies regarding collection of intelligence within the boundaries of the country. The Patriot Act was passed to prevent future destructive attacks on the American citizens. However, with the pressure of flawless national security, there emerged the challenge of maintaining a balance between civil liberties and government instructions. September 11, 2001(9/11) can be regarded as a demarcating date in the history of mankind with the terrorist attacks shaking the national foundation of the super power, America. The attacks demolished the world trade center, which was regarded as a unique nucleus of international trade established in New York City, and took away 2,749 innocent lives. The attacks shook the pillars of the national security of United States of America and questioned the operation and functioning of the intelligence of the country. Following the day of attack, President George Bush immediately declared war on terrorism with his speech, “The United States of America will use all our resources to conquer this enemy” (Kam & Wong, 2006, p. 380). Later, on investigation it was revealed that two of the terrorist pilots gained flying training at the Huffman Aviation International in Venice, Florida, in September 2000. These men entered the United States of America on a visitor’s visa. It was further analyzed that the applications of these men were changed from the visitor to those of vocational students which were processed by the Immigration and Naturalization Service (INS). Another pilot infiltrated the country on October 9, 2000 with an F-1 student visa for the purpose of studying English at English as a second language (ESL) center in California, USA. In this case it was also revealed that the student never attended the institute and the institute never reported about the missing student. With this background information it could be said that the country was suffering from inefficient intelligence operation and management. In fact legitimate questions arose regarding the intelligence operation of the nation. In the aftermath of the 9/11 disaster, America witnessed the tightening of the trajectories of homeland security and enforcement of amended and new laws with stricter policies towards immigration and emigration. But it has been also questioned as to what extent the laws were feasible in the context of the protection of the civil liberties. This paper will be centering on the discussion of the Patriot Act and Foreign Intelligence Surveillance Act with their critical analysis directed towards establishing optimal inferences about the future of domestic intelligence of United States of America. The USA Patriot Act After the devastating incident of 9/11, the country had no choice but to formulate and implement new combat strategies for fighting terrorism. Similarly, the law enforcement as well as the intelligence agencies were also compelled to devise new methods for the protection of the citizenry and the institutions of the country from violence and application of weapons of mass destruction. The culmination of this devised strategy can be said to be that of the USA Patriot Act which was devised for the purpose of allowing more comprehensive sharing of intelligence among the agencies for the purpose of defending the homeland. The Congress by a large margin enacted the USA Patriot Act in 2001(Thornburgh, 2005, p. 805). The main features of the US Patriot Act can be said to bear some fundamental notion on which it is supposed to act. The primary objective is to strengthen the national measures for the prevention, detection and prosecution of the international money laundering as well as the financing of the international terrorism. The other chief objectives are close scrutiny in the foreign jurisdictions, foreign financial institutions and classes of international transactions or types of accounts which can be attributed to the criminal abuse, requirement of all the appropriate elements of the financial services industry for the purpose of reporting the potential money laundering and that of strengthening the measures in the prevention of the use of the US financial system for the purpose of personal gains by the corrupt foreign officials and facilitating repatriation of stolen assets to the citizens of the countries to whom those assets belong (USA PATRIOT Act, 2012). Amendments have been made in the patriot act when there was growing concern among several members of the Senate regarding its protection of civil liberties. On February 10, 2006, the USA Patriot Act Additional Reauthorizing Amendments Act of 2006, S.2271 was being introduced in the Senate. It amends the Foreign Intelligence Surveillance Act and five federal statutes conjectured on the provision of the national security letter (NSL) authority to the federal intelligence investigators in a synchronized manner. First of all, it grants the recipients of section 215 order “the express right to petition a FISA judge to modify or quash the nondisclosure requirement that accompanies such an order. Secondly, it removes the requirement that the recipients of Section 215 orders or recipients of NSLs must provide the FBI or the authorized government authority with the name of the attorney they consulted to obtain legal advice concerning the production order or the NSL; and lastly it clarifies that libraries, the services of which include offering patrons access to the Internet, are not subject to NSLs, unless they are functioning as electronic communication service providers” (Yeh, 2006, p. 1). Foreign Intelligence Surveillance Act (FISA) The Foreign Intelligence Surveillance Act (FISA) was basically enacted in 1978, in response to the revelations by the Church Committee which revealed the rampant abuse of the government wiretaps and on the growing concerns over eavesdropping practices. The law in general is responsible for governing the surveillance of the people in the United States in order to collect intelligence which is related to foreign powers. A special court known as the FISA court has been created for the purpose of hearing requests for warrants. The 2005 disclosure of the existent programs directed towards a national debate concerning the limits of the executive power as well as the maintenance of balance between the national securities and that of the civil liberties. Within the domain of the presidential campaign of 2008, the Congress overhauled the FISA Act for the purpose of bringing federal statutes within a closer alignment with what the Bush administration has been secretly doing. Obama administration also relied on the act in its fight against the Al Qaeda (Foreign Intelligence Surveillance Act (FISA), 2010). SEVIS and the Patriot Act The government of USA called for a stricter monitoring of the foreign visitors through the issuance of the Patriot Act, especially after the 9/11 disaster. It has been empirically tested that the academic institutions have been the shelter of terrorists and their activities in many countries. The then senator Dianne Feinstein called for the complete renovation of the tracking system of the foreign students within the educational institutes of USA. The idea was to develop an electronic students tracking system. The Congress passed the Uniting and Strengthening America by the provision of the appropriate tools required for the purpose of intercepting and obstructing terrorism act on October 26, 2001 mandating the establishment of the Student and Exchange Visitor Information System (SEVIS) by January 30, 2003. The system was designed for the purpose of tracking and monitoring the international students in the United States (Wong, 2006, p. 393). Although the system can be thought to be of immense importance in sealing of the illegal infiltration from the borders and strengthening the homeland security, criticisms have been a common phenomenon attached with it. The “school associations for educators and administrators” have imposed criticisms regarding the system. They have complained about the unrealistic implementation of deadlines, lack of administrative regulations, lack of guidance of the agencies, superimposed workload, untested software programs, untrained staff and the negligence of the officers at the Immigration and Customs Enforcement (ICE) (Wong, 2006, p. 393). The implementation problems which attracted the most attention included those of repeated complaints associated with feasibility, functionality as well as that of the effectiveness. The schools were highly overburdened with the complexities regarding economic, legal and managerial issues and they wanted the fulfillment of the SEVIS mandate with minimal disruption and minimal resource outlay. At the same time the INS had the overload of compliance as well as that of the enforcement concerns. At this situation the INS wanted that SEVIS would be a technically available tool in accordance with the USA Patriot Act. Both the schools and the INS were less interested in developing the system for serving the educational as well as the personal needs of the students. It has been empirically tested that the welfare and the interests of the consumers of the international education were never seriously taken. The implementation of SEVIS was needed to be done on August 1, 2003 and the total transformation of the system was to take place within a very tight frame established by the Congress. The last minute preparation was done all in a chaotic situation and in a highly complex technical environment. There were also flaws in the process encountered. The President of the University of Maryland C. D. Mote, Jr. testified before the House Subcommittee on the Twenty-first Century Competitiveness and Select Education and stated that after initial difficulties and problems, SEVIS was running well. Still some problems were there, like fixing the data entry problems, lack of university resources dedicated to the maintenance of SEVIS and not to servicing student education. There was also lack of feedback from SEVIS on the institutional performance, the visa application fees prohibitive to the new students and also running of complicated processes which were disruptive for the continuing students. Apart from that were the institutional problems, lack of federal support within the grass root level, and not so cost effective elements within the system (Wong, 2006, p. 394-421). Al Haramain and the Foreign Intelligence Surveillance Act (FISA) The Foreign Surveillance Act is dedicated towards the intelligence gathering associated with the foreign powers in the endeavor to maximize homeland security of the United States. The use of technology has been vigorously utilized by the United States of America with circumstances ending up in the formation of illegal practices like wiretapping misdeeds without prior judicial and legal approval. On March 31, 2010, a federal judge ruled that the National Security Agency (NSA) and its program of surveillance are illegal with a dominating move against the administration of Barack Obama which visualizes secrecy as one of the most disputed counterterrorism policies (“Compromising the Constitution,” 2012). One of the cases of the wiretapping misdeeds can be said to be associated with Al Haramain which is now a defunct Islamic charity in Oregon. In a 45 page opinion, chief judge of the Federal District Court in San Francisco Vaughn R. Walker stated that the government has violated a 1978 federal stature which requires the approval of the court for the purpose of domestic surveillance. The group of Al-Haramain Islamic Foundation found that they were subjected to super secret scrutiny at a juncture when the government lawyers accidentally handed over to them detailing the fact. Declaring that the plaintiffs had been "subjected to unlawful surveillance,"(Foreign Intelligence Surveillance Act (FISA), 2010), the judge declared that the government was liable to pay the damages to them and they have been awarded an amount of $40,800 for damages and $2.5 million as legal fees against the illegal or warrantless surveillance which was conducted by the National Security Agency (NSA) (Al Haramain v. Obama, 2012). Conclusion This paper is focused on the USA Patriot Act and the Foreign Intelligence Surveillance Act dedicated towards the enhancement of the homeland security of the United States of America. Post 9/11 America has strengthened the dynamics of the homeland security of the America with amendments in laws. In the SEVIS implementation it can be found that it has been associated with several faults at the base level with the government trying to focus on keeping the name of the practice a robust phenomenon in the political arena of United States of America. The actual purpose of the SEVIS is not served in the proper sense of the term and the lack of the intelligence can be also referred to as one of the major drivers in unsuccessful implementation. In case of the Foreign Intelligence Surveillance Act, the government has taken resort to illegal means of surveillance and can be regarded as a threat towards civil liberty. The future performance of the US intelligence will be definitely evaluated on a positive platform if these fallacies are corrected. The policies are correct, but the implementation should be also right and if this is attained, then long run peace is bound to establish. References Al Haramain v. Obama. (2012). EFF. Retrieved on September 11, 2012 from https://www.eff.org/cases/al-haramain. Compromising the Constitution. (2012). The New York Times. Retrieved on September 11, 2012 from: http://www.nytimes.com/2008/07/08/opinion/08iht-edfisa.1.14330494.html. Foreign Intelligence Surveillance Act (FISA). (2012, September 13). The New York Times. Retrieved on September 11, 2012 from http://topics.nytimes.com/top/reference/timestopics/subjects/f/foreign_intelligence_surveillance_act_fisa/index.html. Thornburgh, D. (2005). BALANCING CIVIL LIBERTIES AND HOMELAND SECURITY: DOES THE USA PATRIOT ACT AVOID JUSTICE ROBERT H. JACKSON'S "SUICIDE PACT?" Albany Law Review, 68(4), 801-813. Retrieved on September 11, 2012 from http://web.ebscohost.com/ehost/pdfviewer/pdfviewer?sid=99bf5e6a-0e43-4429-b008-8010b7bda381%40sessionmgr10&vid=5&hid=11. USA PATRIOT Act. (2012). FinCEN. Retrieved on September 11, 2012 from http://www.fincen.gov/statutes_regs/patriot/index.html. Wong, K.C. (2006). IMPLEMENTING THE USA PATRIOT ACT: A CASE STUDY OF THE STUDENT AND EXCHANGE VISITOR INFORMATION SYSTEM (SEVIS). Brigham Young University Education & Law Journal, (2), 379-454. Retrieved on September 11, 2012 from http://web.ebscohost.com/ehost/pdfviewer/pdfviewer?sid=47861a7a-53ab-42fd-813d-4590e3fb38b0%40sessionmgr12&vid=5&hid=11 Yeh, B.T. (2006). USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006 (S. 2271). Retrieved on September 11, 2012 from http://www.fas.org/sgp/crs/intel/RS22384.pdf. Read More