The Foreign Intelligence Surveillance Act Amendment of 2008: The Battle Between Counterterrorism and the Constitution

Marisa Floriani, Staff Writer

In a New York Times article on December 16, 2005, the world became aware of former President Bush’s decision to wiretap Americans via the National Security Agency (“NSA”) in order to obtain terrorist intelligence.1  Although the NSA had predominantly monitored activity abroad, former President Bush had the NSA screen intelligence within the United States borders without a court order for the first time in its history.2  The New York Times article alerted its readers, “The previously undisclosed decision to permit some eavesdropping inside the country without court approval was a major shift in American intelligence-gathering practices . . . .”3  Why the change?  Former President Bush felt that this was “necessary” in order to accomplish an ultimate goal of counterterrorism.4  Although today’s society is constantly worried about the threat of terrorism, which is not likely to dissipate in the near future, Bush’s decision was criticized because it was inconsistent with the rights our forefathers articulated in the Constitution. 

The Watergate scandal is arguably the initial impetus leading to the enactment of the government’s practice of wiretapping.5  Once the committee reviewing the Watergate scandal had reviewed the country’s history regarding wiretapping, it was clear that there needed to be legislation that did not infringe upon Americans’ rights; the Foreign Intelligence Surveillance Act (“FISA”) sought to balance the need of protecting civil liberties with the need for ensuring national security by allowing the government to wiretap foreign powers abroad to obtain foreign intelligence.6 

According to the original FISA, the Attorney General had the authority to “reasonably determine” that an emergency situation does in fact exist before submitting a warrant to the court.7  The Attorney General also had the power to “reasonably determine” that a factual basis for an emergency situation exists.8  Once the Attorney General made these conclusions, the government could wiretap for up to twenty-four hours without a warrant in an emergency.9

However, the FISA Amendment of 2008 created broader guidelines for what the Attorney General can do in an emergency.  Only a few criteria are specified, and the first two are the same as the original.10  According to the third requirement of the Amendment, the Attorney General has to “inform” a judge from the court that surveillance needs to occur.11  When the Attorney General goes to “court,” he is not going to the local federal court; rather, he goes to a secret court where the judges’ identities are unknown to the public.12  The final requirement in this subsection is quite possibly the most controversial.  It states that the Attorney General must “make[] an application . . . to a judge . . . as soon as practicable, but not later than seven days after the Attorney General authorizes such surveillance.”13  However, in the event that judicial approval is never sought or granted, the surveillance will “terminate when the information sought is obtained, when the application for the order is denied, or after the expiration of seven days from the time of authorization by the Attorney General, whichever is earliest.”14  In other words, if the Attorney General deems a situation to be an emergency, electronic surveillance can occur for up to one week without a warrant on anyone-including an American citizen at home or abroad.  Although this may seem undemocratic, a brief evaluation of legislative history will help in understanding the statute’s purpose. 

The federal government’s ability to wiretap phone conversations has always been a controversial topic no matter what the decade.  However, the lawmakers of the twenty-first century had previous and potential terrorist attacks in mind when they amended FISA.  One of the senators posed this statement: “We did not have the capability at that time of intercepting those conversations because we did not have this particular program in place.  Therefore, is it not true that we missed some of the intercepts of correspondence between the September 11 hijackers and their leadership overseas?”15  This suggests that the terrorist attacks on September 11, 2001 could have potentially been prevented if there had been a reformed FISA.  Some senators were worried that the procedure of getting a court order to obtain certain information may inhibit the government from actually getting the information.  As one senator pointed out, “Getting this intelligence is essential for our safety.  It is about getting the enemy’s secrets-their plans and intentions-without them knowing we’ve got them.”16  There is no doubt that protecting the safety of this country is one of the most important objectives of lawmakers; however, this Amendment seems to imply that protection from terrorism and constitutionally guaranteed protections are mutually exclusive-we cannot fully have one without compromising the other. 

My initial goal was to analyze the Fourth Amendment with cases challenging the emergency clause of FISA.  But the lack of research on such cases led me to believe that those cases were probably sealed.  Therefore, this section will still analyze the Fourth Amendment, but it will look at the criminal aspects of unreasonable search and seizures.  The Fourth Amendment states:

The right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.17   

One of the Amendment’s criticisms is that it could allow the government to engage in an unreasonable search and seizure against American citizens by allowing warrantless surveillance in emergency situations for up to seven days. 

In Katz v. United States, arguably one of the most famous cases concerning the Fourth Amendment and electronic surveillance, the petitioner was convicted under a statute which prohibited transmitting wagering information via telephone.18  The F.B.I. had listened to petitioner’s conversation when he was in a public phone booth.19  The Court noted that “[t]he Fourth Amendment cannot be translated into a general constitutional ‘right to privacy.'”20  In fact, the Fourth Amendment “protects individual privacy against certain kinds of government intrusion, but its protections go further, and often have nothing to do with privacy at all.”21  But the court rightfully noted that “the Fourth Amendment protects people, not places.”22  Although the F.B.I. did not physically intrude on the phone booth, citizens should still be protected from “‘technical trespass,'” therefore the government is required to get a warrant for electronic surveillance.23 

The FISA Amendment not only allows for warrantless electronic surveillance overseas, but now the government can also eavesdrop on an American.  But yet, this emergency clause allows the Attorney General to listen to conversations for up to seven days-that equals 168 hours.  An emergency is defined as, “1) a sudden, urgent, usually unexpected occurrence or occasion requiring immediate action.”24  It can also be defined as, “2) A state, especially of need for help or relief, created by some unexpected event.”25  Based on the first definition, it seems unfathomable that immediacy could continue occur for seven days. 

However, the second definition of emergency could help justify warrantless electronic surveillance for seven days.  Currently, terrorism is one of America’s greatest threats.  Our enemy is not necessarily a country, but rather a fanatical religious sect residing within any number of countries.  It is possible that a terrorist emergency could be different than what our society has previously viewed an emergency.  America has been fighting a group that does not follow the common “rules” of warfare; therefore the government needs to pursue new means in order to protect the lives of this country.  After the World Trade Center attack, we were certainly in a state of emergency for at least seven days, if not weeks or months; therefore, it can be plausible to have an emergency occur for an extended period of time after the initial incident.  Maybe this Amendment will bring insight into a new interpretation of the Fourth Amendment-that “unreasonable” has a different meaning in the context of the post 9/11 world. 

Eric Schillinger & Daniel Katz, editors.


1 James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. Times, Dec. 16, 2005, at A.

2 Id.

3 Id.

4 Id.

5 Donald J. Musch, Civil Liberties and the Foreign Intelligence Surveillance Act 1 (2003). 

6 Id. at 9.

7 50 U.S.C. § 1805(e)(1) (1978).

8 50 U.S.C. § 1805(e)(2).

9 Id.

10 50 U.S.C. § 1805(e)(1)-(2) (2008).

11 Id.

12 Id.

13 § 1805(e)(1)(D).

14 § 1805(e)(3).

15 FISA Modifications Senate Aug. 3, 2007 Page S10859.

16 Id.

17 U.S. Const. amend. IV.

18 Katz v. United States, 389 U.S. 347, 347 (1967).

19 Id.

20 Id. at 350.

21 Id.

22 Id. at 351.

23 Id. at 353.

24 Random House Webster’s Unabridged Dictionary.

25 Id.

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