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Do the FISA Procedural Rules Cover the National Security Agency?

by Carey Lening, Kirsten Koepsel and Ron Weikers

Years after the Terrorist Surveillance Program and other warrantless surveillance became known publicly, litigation continues and key issues remain unresolved. Practitioners whose clients have been subjects of the government's secret surveillance will here find discussion of one of those issues: Does the Foreign Intelligence Surveillance Act apply to the National Security Agency, which carried out such surveillance?

The authors write: Although the scope of the National Security Agency's (NSA) monitoring of communications may never be fully known, numerous questions have arisen about the government's use of warrantless intercepts. One important question comes to mind: Is the NSA governed by the procedural rules of the Foreign Intelligence Surveillance Act of 1978 (FISA)?

Since 2005, when the Terrorist Surveillance Program (TSP) first made headlines,the federal government has claimed that warrantless wiretaps conducted by the NSA as part of the program are necessary tools against the war on terror and are therefore constitutionally justified. The federal government also challenged critics' cries of extralegal overextension, by citing judicial and congressional support, specifically Congress's passage of the Authorization for Use of Military Force (AUMF).

Critics responded that these domestic intercepts at the very least require Foreign Intelligence Surveillance Court (FISC) authorization. The federal government replied that the AUMF supersedes FISA's requirement that the government obtain court approval for an intercept. Regardless what may ultimately be decided by the courts and Congress, one thing is certain: The situation presents a thorny but legally interesting question to practitioners who represent subjects of the government's secret surveillance. [footnotes omitted]

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Carey Lening is an intellectual property, privacy and technology attorney in Washington, DC.

Kirsten Koepsel is an intellectual property attorney and works as a Director, Legal Affairs & Tax, Aerospace Industries Association in Arlington, VA.

Ron Weikers is Managing Partner of Weikers & Co. | in Manchester, NH, and Adjunct Professor of Law at Franklin Pierce Law Center in Concord, NH. Any views expressed herein are solely the authors', and do not reflect the views of their respective employers.

  • The NSA warrantless surveillance controversy concerns surveillance of persons within the United States during the collection of foreign intelligence by the U.S. National Security Agency (NSA) as part of the war on terror. Under this program, referred to by the Bush administration as the "terrorist surveillance program",[1] part of the broader President's Surveillance Program, the NSA is authorized by executive order to monitor, without search warrants, phone calls, e-mails, Internet activity, text messaging, and other communication involving any party believed by the NSA to be outside the U.S., even if the other end of the communication lies within the U.S.