WASHINGTON, Sept. 10 /PRNewswire-USNewswire/ -- The following are prepared remarks of Kenneth L. Wainstein, Assistant Attorney General for National Security at the Georgetown University Law Center's National Security Center:
September 10, 2007
Symposium on Foreign Intelligence Surveillance Act (FISA) Modernization
This conference is a great idea. It gives us an opportunity to share thoughts about where our surveillance authorities should be -- how the powers should be defined and where the lines should be drawn. And the line I'd like to talk about today is the line between domestic surveillance and overseas surveillance -- how the law should distinguish between those two areas of surveillance and how much each area should be subject to judicial review.
There is no question that we should have to get court orders when we want to collect domestic communications or target individuals within the U.S. The question for today is whether we should have to do so when we are targeting surveillance against a person who is outside the United States , where constitutional and privacy protections do not apply.
And, this is not a discussion with only legal or theoretical implications. There are very practical, operational implications here -- implications that will dictate whether we have sufficient coverage overseas or only narrow coverage of our foreign adversaries; whether we can move nimbly and quickly among overseas coverage, or whether we have to go through a resource-consuming court approval process before we go up on one of our adversaries.
In considering this issue, it's useful to look back at the history and the evolution of our surveillance laws. And, when you do that you see that this is a recurring theme. There have been a number of major turning points in the law along the way, and at each of these turning points, we've seen the repetition and reinforcement of this fundamental distinction between foreign and domestic surveillance -- a distinction that finds its origins in the Constitutional balancing between executive authority to take efforts to protect the nation against external threats and the judiciary's authority to protect privacy interests.
You can see this consistent theme as you go back through the evolution of the law. The first turning point in the development of our surveillance law came in the 1960s. In 1967, the Supreme Court held that telephone conversations were protected by the Fourth Amendment. The next year, Congress responded to the Court's decision by passing the wiretap statute that established a procedure by which the government had to secure a court-issued warrant before wiretapping the subject of a criminal investigation.
While both the Supreme Court decision and the ensuing legislation were clear on the need for a warrant requirement when the government was wiretapping a person in the United States for purposes of a criminal investigation, both the Court and Congress were very careful to carve out surveillances for national security purposes. They made it clear that domestic surveillance for evidence in a criminal case was covered by the warrant requirement, but that national security surveillance involving foreign threats was not.
The next turning point came a decade later, when Congress passed the Foreign Intelligence Surveillance Act, which imposed a court review mechanism for electronic surveillance designed to collect foreign intelligence information. We came to this juncture after it was disclosed in the Church and Pike Hearings that the government had abused its flexibility in the area of national security investigations to investigate domestic persons who had no connection to a foreign power. After those disclosures, Congress and the country were understandably looking for a way to ensure that the executive branch could no longer invade their privacy under the guise of protecting against foreign threats. The result was legislation that subjected our foreign intelligence surveillances to court review.