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The Foreign Intelligence Surveillance Act of 1978: The Role of Symbolic Politics* BARBARA ANN STOLZ

Since 1978, the Foreign Intelligence Surveillance Act (FISA) has governed United States intelligence gathering for national security purposes. Enacted in response to the Watergate-era civil rights violations and revelations of a Senate investigation headed by Senator Frank Church that other presidential administrations had authorized similar warrantless surveillance, FISA established a statutory framework for national security surveillance. Understanding FISA contributes to the study of criminal justice policymaking because law enforcement and intelligence communities view it as an important tool for combatting espionage and terrorism. This article examines the enactment of FISA from the perspective of symbolic politics.

I. INTRODUCTION

Countermeasures to transnational threats such as drug trafficking, terrorism, and modern iterations of espionage may involve gathering foreign counterintelligence (FCI) or foreign intelligence (FI) information1 in addition to evidence normally used in a criminal prosecution.2 One of the tools used to gather FCI and FI information has been electronic surveillance. Since 1978, the Foreign Intelligence Surveillance Act (FISA) (Pub L No 95-511) has governed the use of electronic surveillance and, as later amended (Pub L No 103–359), through physical searches to gather FCI and FI information.3 Enacted against the backdrop of the Watergate-era civil liberties’ violations of the privacy of U.S. citizens in the name of national security, FISA established a statutory framework for the authorization of electronic surveillance in order to gather FCI and FI information for national security purposes. Although viewed by U.S. intelligence and law enforcement agencies as an important tool in combating transnational criminal threats such as espionage

* An earlier version of the paper was delivered at the Annual Meeting of the American Society of Criminology, Atlanta, Georgia, November 2001. The opinions expressed are solely those of the author and do not reflect those of the U.S. General Accounting Office. I would like to thank my friends and colleagues, Robert Glick and Geoffrey Hamilton, who reviewed earlier drafts. Address correspondence to Barbara Ann Stolz, 2800 Quebec Street, N.W., Apt. 1010, Washington, D.C. 20008. Tel.: (202) 512-8819; e-mail: [email protected] LAW & POLICY, Vol. 24, No. 3, September 2002 ISSN 0265–8240 # Blackwell Publishers Ltd. 2002, 108 Cowley Road, Oxford OX4 1JF, UK, and 350 Main Street, Malden, MA 02148, USA.

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and terrorism, it is likely that few U.S. citizens were aware of FISA prior to 11 September 2001. Subsequently, FISA drew attention, because, as part of its response to these events, the administration of President George W. Bush recommended legislation modifying FISA’s provisions (Congressional Quarterly 2001: 3044), which Congress then passed, with changes, and President Bush signed into law on 26 October 2001 (Pub L No 107–56). Legislation is often studied from the perspective of who gets what, when, and how. This article, however, examines the enactment of FISA through an alternative lens – symbolic politics (e.g., Edelman 1964, 1971; Gusfield 1963). The symbolic politics framework focuses attention on policymakers and the audiences to whom they direct their legislative attention. Political actions are viewed as symbols that serve to reassure or threaten, communicate a message, or educate the public or a special audience. Applying the framework of symbolic politics to legislation extends our understanding of policymaking beyond that of resolving competing interests. For example, achieving a balance between the competing interests of civil liberties and national security was critical to the enactment of FISA, when the enactment process is viewed from the symbolic perspective, the importance of this balance in preserving the legitimacy of the three branches of government is underscored. This perspective also permits a discussion of the different relevant audiences to which the FISA debate was directed and broadens our understanding of the variety of audiences to which political acts may be directed. While this article focuses primarily on the policymaking process underlying the enactment of the 1978 FISA legislation, the last section discusses the role symbolic politics played in 2001 and how the recent role contrasted with the one played in 1978.

II. THE LITERATURE: SYMBOLIC POLITICS AND CRIMINAL JUSTICE POLICYMAKING

Several assumptions underlie the framework of symbolic politics. As noted above, political acts – whether liberal or conservative, Democratic or Republican – are symbols that are directed toward an audience, usually the general public. Edelman has further observed that ‘‘it is audience acceptance that makes it possible for interest groups, public officials, or anyone else to portray a set of conditions as a problem’’ (1988:32). Unless an audience is receptive to the depiction of a condition as a problem, leaders and interest groups cannot use it to their political advantage (ibid.:33). The symbolic perspective also assumes that the substance of an act is less important than the audience’s perception or reaction to it. Moreover, at times, whether or not legislation is enacted is less important than the fact that legislation has been introduced (Edelman 1964:38, 40; Marion 1995:24). On the federal level, the presidential (Marion 1994, 1995, 1997) and congressional (Stolz 1983, 1985, 1992, 1999) roles in criminal justice policy# Blackwell Publishers Ltd. 2002

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making have been examined from the perspective of symbolic politics. Political scientist, Nancy Marion identifies six crime-related symbolic functions in the literature (1997:67). Legislation and policy initiatives may be directed toward one or more of six symbolic functions that may shift over time. 1. Enhancing the popularity of the officeholder with the public Appearing to be active (e.g., introducing legislation) suggests that a politician is doing the job and, accordingly, increases the chances of being reelected if able to successfully convince constituents that such activity is helping the voters (ibid.). 2. Reassuring the public that steps are being taken to address the crime problem Political acts, as symbols, serve to reassure or to threaten the onlooker (Edelman 1964:7). Criminal justice legislation communicates to the lawabiding that something is being done about a crime problem and threatens the potential lawbreaker (Stolz 1983:161; Baker & Meyers 1980:2,47,55). 3. Simplifying the complex problem of crime Symbolization is the means by which those unable to analyze a complex situation rationally may adjust to it through stereotyping, oversimplification, and reassurance (Edelman 1964:40; Stolz 1985:308). 4. Providing the states with models of good policy Federal criminal justice legislation may provide a model for the states (Stolz 1983, 1985, 1992). For example, federal death penalty legislation may provide a model of ‘‘rational criteria’’ for imposing the penalty (Stolz 1983: 170–71). 5. Demonstrating acceptable and unacceptable behavior – a moral-educative function Criminal justice legislation fulfills a moral-educative function for the lawbreaker and the law-abiding by communicating the line between right and wrong behavior, and between the law-abiding and law-breaker (Durkheim 1966:108–09; Stolz 1983, 1985, 1992). It also praises the law-abiding and, by praising, thus teaches law abidingness (Berns 1979:507–08). Edelman’s observations regarding the construction and uses of political enemies enhance this discussion (1988:66–89). Specifically, he observes that political enemies (which may be foreign countries, believers in distasteful # Blackwell Publishers Ltd. 2002

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ideologies, groups that are different in any respect, or figments of the imagination) give the political spectacle its power to arouse passions, fears, and hopes. This power amplifies the emotional response because an enemy to some people is an ally or innocent victim to others (ibid.:66). Enemies are characterized by an inherent trait or set of traits that marks them as evil, immoral, warped, or pathological and therefore a continuing threat regardless of what course of action they pursue (ibid.:67). Justifications of enmity take the form of a narrative about the past and the future that defines a place in history. For example, to support a war against a foreign aggressor who threatens national sovereignty and moral decencies one depicts oneself as a member of a nation of innocent heroes. To define the people one hurts as evil is to define oneself as virtuous (ibid.:75–76).

6. Educating the public about a problem Political acts also perform a more general educative function (Marion 1994:14 citing Light 1983). Using the legislative process, presidents, members of Congress, congressional staff, the media, and interest groups attempt to educate the public about issues (Stolz 1999:414–16).

III. METHODS

This study relies primarily on the case method. Using congressional hearings, mark-ups,4 and reports; the Congressional Record; relevant legal and political articles; and selected interviews, the author reconstructs the history surrounding the enactment of FISA in 1978. Through the hearing records, the various participants and their positions for and against the proposed legislative drafts were identified. The committee reports, hearings, markups, and Congressional Record entries documented the process and changes in the proposed legislation. These sources often provided insight into the reasons for these changes. The journal and newspaper articles, public documents, and additional materials published in hearing records provided insight into the legal issues, differing perspectives, and overall political climate of the time. Using the Congressional Information Service (CIS) (1978: 1072–74, 1206–07), the author identified hearings and documents relevant to FISA from 1972 to 1978. The legislative review proved to be more complex than usual. FISA’s enactment process was itself unually complex because multiple committees and subcommittees in both the House and the Senate reviewed this legislation during the six-year period. In the Senate, three of the Judiciary Committee’s Subcommittees – Criminal Laws and Procedures, Constitutional Rights, and Administrative Practice and Procedure – held hearings; the Subcommittee on Intelligence and the Rights of Americans of the Select # Blackwell Publishers Ltd. 2002

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Committee on Intelligence also held hearings. In the House, the Judiciary Committee’s Subcommittee on Courts, Civil Liberties, and the Administration of Justice held hearings, as did the Permanent Select Committee on Intelligence. Moreover, these subcommittees each held hearings that often lasted for several days or had hearings in more than one Congress. Different concerns were addressed by each of the subcommittees in their respective hearings and in subsequent committee reports. In addition, reports issued in 1976 by the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities are also pertinent, in part, to this discussion.5 Interviews were conducted with judgmentally selected and available individuals, based on availability, who were in legislative or executive branch positions directly involved in the FISA deliberations and proceedings and whose roles were reported in the public record. All those asked agreed to be interviewed and discussed what they remembered. The author agreed to maintain confidentiality and not to disclose the names of the interviewees. Subsequently, interview information was compared and used to review and interpret hearing and congressional report information. A literature search identified several relevant articles, which have been incorporated into this article, where appropriate.

IV. CONTEXT OF FISA: POLITICAL, LEGAL, AND PRACTICAL

Although national security interests and electronic surveillance officially converged in 1918, the national security aspects of electronic surveillance rose to importance with the onset of World War II 6 and culminated in the political and public turmoil of the 1970s, associated with the Watergate scandal. Less publicized were the conflicts among the three branches of the federal government – the president with the Department of Justice, including the attorney general and the Federal Bureau of Investigation director; the Congress; and the federal courts – over the issue of warrantless electronic surveillance. Prior to World War II, the federal courts and Congress addressed legal issues raised by electronic surveillance; however, gaps were left. One gap was whether existing laws and court decisions applied to wiretapping in national security investigations (U.S. Congress. Senate. Select Committee to Study Government Operations with Respect to Intelligence Activities 1976: vol. II, 187. Cited in U.S. Congress. Senate. Select Intelligence Committee Hearings 1978: app. D, 265). This pre-FISA history was well-documented by the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities (1976). Knowledge of the political, legal, and practical context in which Congress considered FISA is necessary to understand the general policymaking process and, in particular, the role of symbolic politics which led to its # Blackwell Publishers Ltd. 2002

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enactment in October 1978. Accordingly, this section briefly summarizes this context. A. ASSERTION OF PRESIDENTIAL AUTHORITY TO CONDUCT WARRANTLESS ELECTRONIC SURVEILLANCE FOR NATIONAL SECURITY PURPOSES

Between World War II and 1978, the office of the presidency claimed an inherent authority to authorize electronic surveillance for national security purposes. The Select Committee to Study Governmental Operations with Respect to Intelligence Activities Committee (the Church Committee)7 examined the presidential articulation of this claim over time in documents as early as the presidency of Franklin Delano Roosevelt. According to Church Committee documents and reports, in 1940, President Roosevelt sent a memorandum to Attorney General Robert Jackson to approve wiretaps on ‘‘persons suspected of subversive activities against the government of the United States, including suspected spies’’ (U.S. Congress. Senate. Select Committee to Study Governmental Operations with Respect to Intelligence Activities 1976:275). The committee reported that the president had issued the memorandum on the grounds that neither the 1934 Federal Communications Act8 nor the Supreme Court decisions on wiretapping were meant to apply to ‘‘grave matters involving the defense of the nation.’’ The executive branch broadened the standard in 1946 to permit wiretapping in ‘‘cases vitally affecting the domestic security or where human life is in jeopardy’’ and then modified it in 1965 to allow wiretapping in ‘‘investigations related to the national security.’’ Although internal Justice Department policy required the attorney general to approve a wiretap before the FBI instituted it, there was no requirement until the mid-1960s for periodic reapproval by the attorney general. Consequently, some wiretaps remained in effect for years (U.S. Congress. Senate. Select Committee to Study Government Operations with Respect to Intelligence Activities 1976: vol. II, 187–88. Cited in U.S. Congress. Senate. Select Intelligence Committee Hearings 1978: app. D, 265–66). Underlying the assertion of presidential authority to authorize warrantless searches in matters of national security were certain assumptions regarding presidential power. Specifically, the assumptions posited that presidential power to conduct the nation’s foreign affairs was superior to the constitutional restraints of the fourth amendment against illegal (warrantless) searches (U.S. Congress. Senate. Select Intelligence Committee Hearings 1978: app. C Fordham Note, 243). Based on the Supreme Court decisions through 1967, it seems that both the Roosevelt memorandum and the subsequent presidential practice of authorizing warrantless national security surveillances were not claims to an immunity of constitutional restraint, since there were no constitutional restraints from which to be immuned (ibid.). Even in decisions after 1967, the Court still did not address wiretapping related to foreign security matters. # Blackwell Publishers Ltd. 2002

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B. CHURCH COMMITTEE FOUND PRESIDENTIAL ABUSES OF WARRANTLESS ELECTRONIC SURVEILLANCE9 FOR NATIONAL SECURITY PURPOSES

Although presidents may have viewed these national security surveillances to be within their authority, in the post-Watergate era, the Church Committee, among others, characterized them as abuses of power. These surveillances, which were carried out within the United States by intelligence agencies in the name of national security, were not limited to one political party. The Church Committee and later the Senate Intelligence Committee documented actions by both Democratic and Republican presidential administrations and characterized them as abuses (U.S. Congress. Senate. Select Committee to Study Governmental Operations with Respect to Intelligence Activities 1976: vol. II; U.S. Congress. Senate. Select Committee on Intelligence. Subcommittee on Intelligence and the Rights of Americans 1976; U.S. Congress. Senate. Select Committee on Intelligence, Hearings 1978). Of particular concern were the instances of warrantless electronic surveillance against U.S. citizens who appeared to pose little threat to national security and were not alleged to be engaged in criminal activity (Cinquegrana 1989:807; U.S. Congress. Senate. Select Committee to Study Governmental Operations with Respect to Intelligence Activities 1976: vol. II, 5).10 It was against this backdrop that the FISA legislation was developed.

C. SUPREME COURT DECISIONS LEFT GAPS11

The Church Committee documents and FISA hearing records also illustrate the role of the federal courts in the history of electronic surveillance. Among the major findings of the Church Committee, and later, the Senate Intelligence Committee, was that although the Supreme Court had addressed legal issues raised by electronic surveillance, the law was riddled with gaps and exceptions. The Church Committee concluded that ‘‘the executive branch was able to apply vague or no standards for the use of this technique to particular cases as it has seen fit’’ (U.S. Congress. Senate. Select Committee to Study Governmental Operations with Respect to Intelligence Activities 1976: vol. II, 186–87. Cited in U.S. Congress. Senate. Select Intelligence Committee, Hearings 1978: 264–65). A number of key cases make up the pre-FISA judicial history. Prior to World War II, Olmstead v United States 1928 left federal agencies free to engage in the unrestricted use of wiretaps in both criminal and intelligence investigations because there had been no physical intrusion. The Court concluded that Congress could act if it believed that the use of intercepted communications as evidence in federal criminal trials should be limited (Cinquegrana 1989:795–96). Later in Katz v United States 1967, the Court reversed its holding in Olmstead (U.S. Congress. Senate. Select Committee to Study Governmental Operations with Respect to Intelligence Activities # Blackwell Publishers Ltd. 2002

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1976: vol. II, 188. Cited in U.S. Congress. Senate. Select Intelligence Committee, Hearings 1978:266) but made a distinction between law enforcement and national security requirements for electronic surveillance and did not extend its decision to cases involving national security (Cinquegrana 1989: 800). In United States v United States District Court 1972 (Keith case), the Court held that the president did not have the constitutional power to authorize warrantless electronic surveillances to protect the nation from domestic threats. That is, prior judicial approval was required to satisfy the Fourth Amendment in the case of intelligence gathering involving domestic security surveillance. Regarding the surveillance of activities of foreign powers, within or without the country, however, the Court expressed no opinion (Bazan 2000:2). The Court provided guidance in the Keith case as to the approach Congress might take, distinguishing different standards for domestic surveillance and more conventional types of crimes. This guidance, although referring to domestic security, seems to be reflected in later congressional actions regarding foreign intelligence surveillance (ibid. 2000:2; Cinquegrana 1989:802–03). Subsequent to the Keith case, courts of appeals’ decisions addressed the issue of warrantless electronic surveillance in the foreign intelligencegathering context more directly. Most found such warrantless surveillance to be lawful. Attorney General Griffin Bell informed Senator Robert Morgan that in every court case in which the issue had been directly raised, the decision had been that the president may lawfully approve warrantless electronic surveillances of foreign powers and their agents (cited in U.S. Congress. Senate. Select Intelligence Committee Hearings 1978: app. C, 231). In Zweibon v Mitchell 1975, involving the warrantless surveillance of a domestic organization, however, the plurality noted that an analysis of the policies implicated by foreign security surveillance indicates that, absent exigent circumstances, all warrantless electronic surveillance is unreasonable and therefore unconstitutional (Bazan 2000:3; Cinquegrana 1989:804). Yet, while in dictum, a plurality of the Court suggested that a warrant should be required even where the subject of the surveillance was an agent of a foreign power, the court made clear that its actual decision was not so broad (see Bell letter, cited in U.S. Congress. Senate. Select Intelligence Committee Hearings 1978: app. C, 231). In Keith, and Zweibon, as well as Katz, the observant reader will find a presaging of what Congress incorporated into FISA. It was the federal courts’ decisions in the espionage cases, United States v Humphrey 1978 and United States v Truong Dinh Hung 1980, that appear to have influenced the later interpretation of FISA by some courts and executive branch officials regarding the line between an intelligence and criminal investigation. In Truong, which was considered prior to but affirmed after the enactment of FISA, the U.S. Court of Appeals for the Fourth Circuit addressed the legality of warrantless intelligence searches, via both electronic surveillance and physical surveillance and searches, of foreign agents. While the court of appeals recognized that the president’s # Blackwell Publishers Ltd. 2002

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constitutional powers for conducting foreign policy included the ‘‘principal responsibility for foreign intelligence surveillance’’ (Humphrey 1978 at 63), it also acknowledged the practical difficulties that would frustrate the president in getting a normal warrant under these conditions. To determine when the foreign intelligence exception to the warrant requirement could be applied, it agreed with the district court’s adoption of the ‘‘primary purpose’’ test, that is, when the primary purpose of the investigation shifted from intelligence gathering to gathering criminal evidence, the warrant exception could not be applied. The court of appeals further recognized that evidence gathered during the warrantless intelligence investigation could be used in criminal investigations so long as the government’s primary purpose was to collect foreign intelligence rather than to prosecute the target (Truong 1980 at 913– 16). Although it should be noted that all circuits need not follow this position because it is not the law of the land, the court cases interpreting the FISA statute confirm that it does not require that the ‘‘sole purpose’’ of the FISA coverage be foreign intelligence, but the intelligence gathering cannot simply be ‘‘a purpose’’; rather, the ‘‘primary purpose’’ of the FISA coverage must be to obtain foreign intelligence information12 (see also McGee & Duffy 1996:325–26). D. EXISTING LEGISLATION LEFT GAPS

The Church Committee also asserted that existing legislation left gaps with regard to wiretapping in cases of national security (U.S. Congress. Senate. Select Committee to Study Governmental Operations with Respect to Intelligence Activities 1976: vol. II, 274–79). Title III of the Omnibus Crime Control and Safe Streets Act of 1968 was enacted in part as a response to the Katz case. It established procedures for obtaining judicial warrants permitting wiretapping by government officials, but avoided the issue of national security cases, which had been left open in Katz. There was no clear guidance from Congress on the use of a warrantless wiretap by the executive branch. E. PRACTICAL CONSIDERATION

The context for the FISA debate involved not only legal, but also practical considerations. Wiretaps required the support of the telephone company. One interviewee reported that the telephone company refused to assist, creating a practical difficulty. Reportedly, the phone company lawyers raised questions about the civil liability of the phone company and the possibility of lawsuits, if they were to continue to provide assistance to the government.13 F. NEXUS OF CONTEXTUAL FACTORS

One interviewee suggested that the enactment of FISA was the consequence of the convergence of three types of concern: political, legal, and practical. # Blackwell Publishers Ltd. 2002

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Between World War II and 1978, U.S. presidents claimed an inherent authority to authorize electronic surveillance for foreign intelligence purposes. Politically, Watergate and the Church Committee’s assertions of earlier presidential abuses of power in the name of national security discredited this political argument. Legally, some court decisions during this period challenged the inherent authority argument. Practically, the phone companies refused to assist. According to interviewees, by the time of the presidential administrations of Gerald Ford and Jimmy Carter, Congress and the White House recognized that there was a problem that had to be addressed legislatively.

V. THE POLICYMAKING PROCESS OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978

The recognition, in 1978, of both the problem and the inadequacy of existing law to address abuses by the executive branch and set the conditions under which such surveillances were legitimate led to proposals, congressional deliberations, and the final enactment of FISA. The revelation of executive branch abuses set the context for legislative deliberations and judicial branch support for legislative action. As noted above, court decisions that addressed other types of surveillance provided procedures for consideration in the case of FI and FCI surveillances, within the United States, and are reflected in the final FISA legislation. The symbolic functions and how they related to the process that led to the enactment of FISA reflect the context in which Congress, the executive branch, and the federal courts found themselves. Before the enactment of FISA in 1978, the legislation went through several iterations which were discussed at numerous hearings in the House and Senate. This process and the provisions of the final legislation are summarized in this section and provide the basis for the analysis of symbolic politics that follows. A. FISA AND THE POLICYMAKING PROCESS

During the early 1970s, a number of legislative hearings were held and legislation was introduced which dealt with warrantless wiretapping and, specifically, abuses that occurred during the administration of President Richard Nixon and attorney general, John Mitchell.14 In 1975, the Senate Foreign Relations Committee, Subcommittee on Surveillance, and the Judiciary Committee, Subcommittee on Administrative Practice and Procedure issued a joint report on the problem (U.S. Congress. Senate. Committee on the Judiciary. Subcommittee on Criminal Laws and Procedures and Foreign Relations Committee, Subcommittee on Surveillance 1975). Reportedly, executive branch opposition led to congressional inaction (see statement of Senator Edward M. Kennedy in U.S. Congress. # Blackwell Publishers Ltd. 2002

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Senate. Committee on the Judiciary, Subcommittee on Criminal Laws and Procedures Hearings 1976:2). According to interviewees, the immediate impetus for the consideration and enactment of FISA was the Church Committee’s findings regarding the improper use – beyond the abuse of Watergate – of national security wiretaps. In January 1975, the Senate established a committee to conduct an investigation and study of governmental intelligence activities and the extent, if any, to which any agency of the federal government engaged in illegal, improper, or unethical activities (Senate Resolution 21, 27 January 1975, sec. 1). Organized shortly thereafter, the Church Committee conducted a year-long investigation into the intelligence activities of the United States government. While the committee confirmed that properly controlled and lawful intelligence is vital to the nation’s interest, it also confirmed substantial wrongdoing and that intelligence activities had not generally been governed and controlled in accord with the fundamental principles of the U.S. Constitution. The committee’s final report included recommendations to prevent excesses and guidelines to govern and control legitimate activities (U.S. Congress. Senate. Select Committee to Study Governmental Operations with Respect to Intelligence Activities 1976: vol. II, v). During the 94th Congress, Senator Edward M. Kennedy introduced the Foreign Intelligence Surveillance Act of 1976. According to the hearing record of the Senate Judiciary Subcommittee on Criminal Laws and Procedures (U.S. Congress. Senate. Committee on the Judiciary. Subcommittee on Criminal Laws and Procedures 1976:1), the proposed legislation was identical to the measure transmitted by President Ford to the Senate on 23 March 1976, with a message urging its enactment.15 This legislation became the basis for the Senate’s discussions during that Congress. The Subcommittee on Criminal Laws and Procedures and the Subcommittee on Intelligence and the Rights of Americans of the Senate Select Committee on Intelligence each held hearings. The witnesses included the attorney general, members of Congress, representatives of civil liberties organizations, and law professors. The House also considered legislation during the 94th Congress. The Judiciary Committee’s Subcommittee on Courts, Civil Liberties, and the Administration of Justice held a number of hearings in 1975 and 1976. In 1976, Subcommittee Chair Robert Kastenmeier with Representative Thomas Railsback developed draft legislation and Judiciary Chair Peter Rodino introduced an alternative bill, H.R. 12750, which was a companion to the Kennedy bill and supported by the White House (U.S. Congress. House. Committee on the Judiciary. Subcommittee on Courts, Civil Liberties, and the Administration of Justice 1977:2). Ultimately, FISA legislation did not pass during the 94th Congress because the session ended before the full Senate could vote and because differences both between the House and Senate and between the White House and Congress were not resolved despite the recognition that something had to be done about the problem. # Blackwell Publishers Ltd. 2002

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By 1977, the White House had changed hands. Jimmy Carter was the president and he had appointed Griffin Bell to be attorney general. Having been briefed by his predecessor, Levi, Bell understood the need for the FISA legislation. Bell believed that FISA would provide the imprimatur of the federal courts on something being done by the executive. He gained the support of President Carter. It should be noted that Bell had to appear in the Truong case, cited above, because the federal wiretap was challenged. One interviewee, knowledgeable about the circumstances of the case, suggested that had FISA existed at the time, the defense in the Truong case might not have made the challenge. During the 95th Congress, Senator Kennedy introduced S. 1566, The Foreign Intelligence Surveillance Act of 1978 on 18 May 1977. Senate cosponsorship of the bill was again bipartisan. The Senate Judiciary Subcommittee on Criminal Laws and Procedures held additional hearings (U.S. Congress. Senate. Committee on the Judiciary. Subcommittee on Criminal Laws and Procedures 1977). Witnesses included Attorney General Bell; representatives of the American Civil Liberties Union and the National Committee against Repressive Legislation; the director of the Central Intelligence Agency; the secretary of defense; and law professors. The subcommittee reported out the bill, with amendments responding to issues raised during the hearings, and a unanimous recommendation for favorable action (U.S. Congress. Senate. Committee on the Judiciary 1977: vol. I, 3–4). The Judiciary Committee then reported out the bill favorably. The Senate Select Intelligence Committee reported out a similar bill. Both committees’ bills included safeguards for U.S. citizens beyond those provided for aliens, although the bill reported out by the Select Intelligence Committee provided a criminal standard (viewed as higher) for the surveillance of a U.S. citizens or resident aliens. The Justice Department indicated it would accept the standard in the Select Intelligence Committee version (Congressional Quarterly Almanac 1978: 189). The provisions were accepted. The Senate passed the bill on 20 April 1977. In the House, the legislative road was not direct. The Permanent Select Committee on Intelligence approved H.R. 7308 on 8 June 1978. On 30 June 1977, a Judiciary Committee subcommittee voted to table the measure in order to prevent it being considered by the House Judiciary Committee and, consequently, delayed from reaching the House floor. On 7 September, the House passed a bill similar, but not identical to the Senate bill, reversing a vote taken on 6 September that would have limited the warrant requirements to surveillance of U.S. citizens. The differences between the House and Senate versions meant that a conference (or less formal negotiations) between the two houses was necessary to reach a compromise and a single version of the legislation (ibid.:191–92). The discussions in the House evidenced the various positions held by opponents to the Senate and White House-proposed legislation (i.e., S.1566). Some representatives, generally identified as conservative or politically right # Blackwell Publishers Ltd. 2002

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of center, opposed the legislation because they accepted the position of inherent presidential authority to permit warrantless searches in national security matters. They viewed the legislation as contrary to the president’s constitutional authority. Others, generally identified as liberals or politically left of center opposed the legislation because they objected to any search where there was no probable cause to believe that a crime had been committed (ibid.:190–91). Congress enacted FISA in October 1978. The Senate agreed to the FISA conference report on 9 October by a voice vote. The House approved the measure (226–176) on 12 October. President Carter signed the bill into law on 25 October (ibid.:193). One interviewee characterized FISA as ‘‘good’’; he said it was not ‘‘perfect’’ legislation. The act was supported by a majority of the Congress, the White House, various civil liberties groups, and the national security organizations that make up the intelligence community.

B. WHAT FISA PROVIDED

As enacted, FISA provided a statutory framework for electronic surveillance conducted within the United States for foreign intelligence purposes, particularly against foreign powers and agents of foreign powers. Senate Committee on the Judiciary Report on S. 1566 (U.S. Congress. Senate. Committee on the Judiciary 1977) stated that the basis for the legislation was the understanding that, even if the president had an ‘‘inherent’’ constitutional power to authorize warrantless surveillance for foreign intelligence purposes, the Congress had the power to regulate the exercise of this authority by legislating a reasonable warrant procedure governing foreign intelligence surveillance (ibid.: vol. I, 15–16). Under the act, the attorney general, upon the general authorization of the president for the conduct of electronic surveillance within the United States for foreign intelligence purposes, may authorize applications to a special court, also established by the act (ibid.: vol. I, 5–7). The special FISA court was to be composed of seven district court judges from seven of the U.S. judicial circuits, designated by the chief justice of the Supreme Court for (rotating) terms not to exceed seven years; they could not be reappointed to that court. The chief justice was also to designate three judges from U.S. district courts or courts of appeals to serve on the FISA Review court. These FISA court judges were also to serve a seven-year term and could not be redesignated. The FISA court was to hear applications for and approve orders for surveillance under the act. If it rejected an application, the matter was to be referred to the review court. The Senate Select Committee on Intelligence’s report (U.S. Congress. Senate. Select Committee on Intelligence 1978:47–48) attributed the recommendation to establish a special FISA court to the general counsel of the Administrative Offices of the U.S. # Blackwell Publishers Ltd. 2002

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Courts. Interviewees, however, indicated that the idea actually originated with Attorney General Levi, who, reportedly, did not believe that sending these cases randomly to a federal court judge was a good idea. His successor, Griffin Bell, also supported the concept. The legislation established different standards and requirements in cases of electronic surveillance of non-U.S. persons for foreign intelligence and counterintelligence purposes within the United States. For example, the FISA court judge must find probable cause to believe that the suspect target is a foreign power or an agent of a foreign power, and that the places at which the surveillance is directed is being used, or is about to be used, by a foreign power or agent thereof. In contrast, the issuance of court orders for electronic surveillance in criminal cases must be supported by a judicial finding of probable cause to believe that the subject of the court order has committed, is committing, or is about to commit a particular predicate offense (U.S. General Accounting Office 2001:9). In other words, for nonU.S. citizens, FISA does not require a criminal standard of probable cause16. To carry out the law, the Office of Intelligence Policy and Review (OIPR) was established within the Department of Justice. Among other things, OIPR assists the attorney general by providing legal advice and recommendations regarding national security matters and approves the seeking of certain intelligence-gathering activities. Specifically, OIPR: (1) prepares applications to the FISA court for orders authorizing surveillance and physical searches by the U.S. intelligence agencies for foreign intelligence purposes, and (2) represents the United States before the FISA court (ibid. 2001:7). In addition, as noted in part IV(C), as FISA evolved, some courts concluded that to qualify for a FISA warrant, the ‘‘primary purpose’’ of the investigation had to be intelligence gathering, not collecting of evidence for a future criminal prosecution. Although, this conclusion referred to the Truong case, FISA was not meant to be a codification of Truong, since the appellate decision in the case occurred after the enactment of FISA. As interpreted, however, FISA was viewed by some parties as restricting the interaction between intelligence investigators and criminal prosecutors (U.S. General Accounting Office 2001:23–24, 31).17

VI. SYMBOLIC POLITICS AND THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978

A review of the pertinent Senate and House hearings and reports supports the conclusion that the 1978 FISA legislation was aimed at statutorily filling the ‘‘electronic surveillance for national security gap’’ by requiring a judicial warrant prior to undertaking such surveillances. The statutory framework established by the act involved all three branches of government – executive, legislative, and judicial. The process by which this legislation was enacted # Blackwell Publishers Ltd. 2002

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reflects various aspects of symbolic politics, most evidently the educative, reassurance, and moral-educative functions. A. EDUCATIVE

Although congressional hearings in the early 1970s addressed the question of national security wiretaps, it was the work of the Church Committee that focused attention on the abuse of national security wiretaps by both Democratic and Republic presidential administrations. The Committee’s study confirmed that the abuses associated with Watergate were not limited to the Nixon administration and were, therefore, not likely to be addressed by a change of administration. Moreover, its recommendations to address these abuses suggested direction and proposals that did not involve amending the Constitution. The Committee’s study served to educate members of Congress about the nature and extent of executive branch abuses of electronic surveillances and about approaches to address these abuses. Its report appears to have convinced many members of Congress of the need to regulate electronic surveillance for national security purposes (Cinquegrana 1989:807). The subsequent legislative hearings in the Senate and House also served an educative function. The parade of expert legal witnesses underscored the complexity of the problem. Accordingly, these hearings did not serve the symbolic function of ‘‘simplifying’’ an issue; rather they served to educate about the complexities of the problem and the need for carefully crafted legislation. The phrase ‘‘a delicate balance’’ was used on a number of occasions to describe the legal and constitutional intricacies involved in drafting the legislation to ensure that concerns regarding national security and civil liberties were addressed. In traditional discussions of symbolic politics, the audience of reference is usually the general public. The Church Committee investigation and the subsequent legislative subcommittee hearings educated interest group representatives and the public. The primary audience to be educated, however, seems to have been the House and Senate members themselves. They had to be convinced of the need for and appropriateness of the legislation, as well as the merits of the provisions of the specific legislative proposals. B. REASSURANCE AND THREAT

1. Congressional Efforts to Reassure A second symbolic function reflected in the FISA debate is reassurance and threat. Both congressional and executive branches sought to reassure the general public that the abuses of the past would not recur. As FISA was debated and enacted against the background of the Church Committee’s revelations regarding the abuse of wiretaps against U.S. citizens, it may be argued that FISA served to reassure the general public. By enacting the FISA legislation, Congress let the public know that it was interested in # Blackwell Publishers Ltd. 2002

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protecting the privacy of U.S. citizens and that the surveillance of foreign governments and their agents, operating within the United States, was subject to some type of judicial review. Congress also sought to reassert its position vis-a`-vis the executive branch as a legitimate participant in decisions regarding the use of electronic surveillance to gather FCI and FI information. By drawing the courts into the FISA process, Congress also asserted the role of the judicial branch. The new modus operandi would be a statutorily established system, involving the three branches of government, with each branch carrying out its constitutional role. By its actions, Congress appears to have sought to reassure the public that decisions regarding electronic surveillance would not be made solely at the discretion of the president, the attorney general, or even the FBI director, but would include the participation of all three branches of government. It might further be argued that Congress also sought to reassure certain congressional members. Specifically, by bringing the judicial branch into the decision-making process, it sought to reassure those members of Congress who were worried about the abuse of presidential power. It also sought to reassure members that problems between the executive and legislative branches could be resolved without resorting to a constitutional amendment. Moreover, through its actions, Congress, or at least some members, sought to assure interest groups that the abuses of the past would not recur, while simultaneously assuring that there would be a means whereby national security agencies could still gather necessary intelligence. FISA would establish a warrant process that would balance the interests of civil liberties and national security organizations. 2. Executive Efforts to Reassure Considering that FISA legislation was supported by both the Ford and Levi, and Carter and Bell administrations suggests a different interpretation of the role of the reassurance function. Specifically, by supporting a statutory solution to the abuses of their predecessors, both the Ford and Carter administrations sought to reassure the public that the executive branch would not continue the practice of unfettered warrantless searches. At the same time, it appears that the administrations were aware that even if the president ultimately had the authority to authorize such warrantless searches, the abuses of previous administrations created the possibility that such searches would be challenged in the courts. Therefore, it can be argued that by reassuring the public through the use of the special FISA warrants, the administrations were seeking to legitimize national security wiretaps, thereby avoiding a confrontation with the federal courts. The more general effect of legitimizing (in part through the reassurance function) national security wiretaps processed under FISA was to restore confidence in the executive branch and # Blackwell Publishers Ltd. 2002

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remove the cloud of illegitimate use of authority that had been hanging over the executive branch. In 1978, the FISA legislation responded to an internal threat – agencies of the executive branch of the federal government that had overstepped accepted bounds, as evidenced most immediately by, but not limited to, the abuses of Watergate. In responding to this internal threat, both the Congress and the White House sought to reassure the public that the federal policy government would not carry out warrantless searches against its citizens, even in matters of national security. The government was to be open in these matters, to the extent it could. The legislation was to give the public a sense of confidence that once established, subsequent surveillances carried out under the policies and procedures of FISA would be implemented honestly and in the public interest. In so doing, the legislation provided reassurance that not only was the executive branch no longer the ‘‘enemy,’’ but the acceptable balance of power among the three branches of government had been restored. C. MORAL-EDUCATIVE

A third symbolic function reflected in the FISA legislative history is the moral-educative function. In the symbolic context, this function, traditionally, refers to the messages that communicate the moral consensus of the society – those sent to the lawbreaker, indicating that certain behavior is viewed as ‘‘bad’’ and those sent to law-abiding citizens, reassuring them that those who ‘‘do right’’ are ‘‘right’’ (Stolz 1983:166). In addition, criminal law usually draws a line between the lawbreaker and the law-abiding citizen. Here again, the interpretation of the legislative process underlying the enactment of FISA, while reflecting this function, also suggests a variance in the interpretation of the symbolic function. 1. Moral-Educative Function: Message from Congress to the President or Consensus between the Branches: Alternate Interpretations of History? From the perspective of the moral-educative function, one interpretation of FISA was that Congress was sending a message to the president about what was acceptable behavior. Interviewees, however, suggested that this was reciprocal – that the president was also communicating a message to Congress and the public. Thus, the audience was not only the public but Congress and the president. A 1978 Congressional Quarterly Almanac article (1978:186) asserted that the purpose of FISA was to send a message to the president. That is, through the FISA legislation, Congress was sending a message to the presidency as an institution as to what was acceptable behavior. For example, the 1977 report of the Senate Judiciary Committee states that the basis for the proposed legislation was the understanding that even if the president had # Blackwell Publishers Ltd. 2002

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an ‘‘inherent’’ constitutional power to authorize warrantless surveillance for foreign intelligence purposes, the Congress had the power to regulate the exercise of this authority by legislating a reasonable warrant procedure governing foreign intelligence surveillance (U.S. Congress. Senate. Committee on the Judiciary 1977: vol. I, 15–16). Warrantless electronic surveillances, authorized by the president in the name of national security, were clearly not acceptable to Congress. As a result, the FISA legislation sent a message to future presidents. Specifically, the provisions in the legislation articulated the details of the message. Through the legislation, Congress inserted itself and the judicial branch into the national security electronic surveillance arena. The special court was to review executive branch requests for electronic surveillance in foreign intelligence and counterintelligence cases. In creating the special court, Congress had used its legislative authority to create the requirement for a judicial warrant, thereby establishing a modus operandi that involved the three branches. Congress set statutory requirements, establishing policies and procedures, and the judicial branch through the FISA court became a decision-maker reviewing warrant applications requested by the attorney general. The legislation also set the target and purpose of such surveillances, distinguishing between the non-U.S. and U.S. citizen. According to one interviewee, the message, in effect, changed the constitutional balance of power without changing the Constitution. An alternative interpretation of the message sent by FISA was offered by other interviewees, who emphasized that both Presidents Ford and Carter had supported congressional efforts. They suggested that Congress was not sending a message to the executive branch. Rather, they argued that Congress and the executive branch were in agreement regarding the need for a judicial warrant to legitimize surveillances undertaken in the name of national security. Without the judicial imprimatur, the White House would have had to be concerned about the constitutionality of the acts and the possibility, if brought to the federal courts, the courts would decide against the executive branch. Accordingly, the message from the incumbent White House was that it agreed with Congress, not with the policies and practices of previous administrations and the legitimacy of White House actions in these matters was restored. 2. Moral-Educative: Drawing the Line Traditionally, criminal justice legislation draws a line between the lawabiding and non-law-abiding citizen in order to indicate what society views as acceptable and unacceptable behavior. With regard to wiretaps, the 1978 FISA legislation drew a different line. The line was primarily between U.S. citizens, including permanent resident aliens, and non-U.S. citizens, particularly agents of a foreign government, within the United States. Although, under some circumstances a U.S. citizen might fall under the provisions # Blackwell Publishers Ltd. 2002

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of FISA. Watergate and the Church Committee’s study raised concerns about the electronic surveillance of U.S. citizens, in the name of national security; foreign nationals were not the concern. FISA drew the line making it clear that the two groups, even when FISA was applied, were to be treated differently with regard to the standards applied to electronic surveillance. FISA also drew a line between acceptable and unacceptable executive branch behavior. Wiretaps for national security purposes were acceptable so long as the designated FISA process was used. This is not to say that the White House gave up the authority to carry out warrantless wiretaps for national security purposes, for which they believed they had authority. Even if an incumbent president believed that the branch had such authority, however, staying within the bounds of FISA avoided a challenge. The legislation also provided direction for the courts as to what Congress believed to be acceptable executive branch behavior. The concept of ‘‘enemy’’ may be used to draw the line between the lawabiding and the lawbreaker. In 1978, the problem was abuse of power by the government and the enemy or lawbreaker was the government itself – executive branch officials who crossed the line between acceptable and unacceptable surveillance behavior, particularly when they surveilled U.S citizens, within the United States. In the 1970s, that is, the enemies of the liberals and politically left included the CIA, FBI, and other intelligencegathering agencies.

VII. AMENDING FISA: RESPONDING TO THE EVENTS OF 11 SEPTEMBER 2001

When FISA was established, the crime of primary concern was espionage and the abuse of government power in pursuit of spies. In recent years, although terrorism has emerged as a concern in law enforcement and intelligence agency circles, as evidenced in the mid-1990s by increased funding to combat it, terrorism was not a matter of general public concern. The events of 11 September 2001 made terrorism, particularly terrorism within U.S. borders, a matter of public concern. As viewed by the public, the threat and the enemy in 2001, unlike 1978, was external, not internal. One of the steps taken to address the threat from the ‘‘new enemy’’ was to amend the 1978 FISA legislation. The amendment process, as was the case in 1978, reflected various symbolic functions. A. THE 2001 AMENDMENTS TO FISA: THE PROCESS

One response of the Bush administration to the events of 11 September 2001, was the transmittal to Congress of proposed legislation that included amending the 1978 FISA legislation. On 11 October, the Senate passed (96 to 1) a version somewhat different from the Bush administration’s proposal. The next day, the House passed similar legislation (337 to 79), but # Blackwell Publishers Ltd. 2002

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included several more controversial provisions (Lancaster 2001:A1; Doyle 2002:1). The FISA-related provisions that the House and Senate agreed to include: (1) the authorization of ‘‘roving wiretaps’’ that allow investigators to surveil any phone a suspected terrorist might use rather than a specific phone (thereby changing the focus of the warrant from the instrument of communication to the person) and (2) allowing criminal investigators and intelligence officers to share grand jury and wiretap transcripts. A key difference in the FISA-related provisions was that only the House bill included ‘‘sunset’’ provisions under which the wiretap and intelligencesharing measures would expire after five years. Congress would have to reenact the provisions before the expiration deadline to continue this new authority (Lancaster 2001:A9; Doyle 2002:3). Rather than hold a formal conference, key lawmakers met with administration officials to resolve about a dozen points of difference and then introduced a clean bill18 (H.R. 3162) (Congressional Quarterly 2001:3044). Subsequently, the House and Senate approved the new bill on 24 October and 25 October and the president signed the bill into law (USA Patriot Act, Pub L No 107-56) on 26 October. The Patriot Act’s FISA-related amendments were in response to changes in technology (e.g., the advent of the cell phone) and to permit more sharing of information among the intelligence agencies. As noted earlier in this article, a key standard used to interpret FISA has been the ‘‘primary purpose’’ test. The 2001 legislative amendments specified that the intelligence-gathering had to be ‘‘a significant purpose’’ of the investigation, not the ‘‘primary purpose’’ or ‘‘the purpose.’’ In addition, the number of FISA Court judges was increased to eleven (Holland 2001; Doyle 2002:3). The House sunset provision was included in the final legislation. Accordingly, Congress has to renew certain anti-terrorism provisions before 31 December 2005 or these provisions, including the surveillance sections, expire. Attorney General John Ashcroft and President Bush opposed this provision, but Republican leaders in the House indicated that without such a provision they lacked the majority needed to enact the amendments (Holland 2001). B: SYMBOLIC POLITICS AND THE 2001 AMENDMENTS TO FISA

The process underlying the 2001 amendments to FISA also reflects various symbolic functions. Of particular importance was the reassurance function, but the moral-educative, educative, and enhancement of officeholder popularity function also played a role. 1. Reassurance After the events of 11 September 2001, President Bush and the Congress saw the need to reassure the public through legislation. They sought to reassure # Blackwell Publishers Ltd. 2002

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the public through the FISA amendments that law enforcement officials and, through them, the Congress and the White House were handling the new, external threat of terrorism. The new legislation did not, however, reassure some groups. FISA had become the modus operandi, accepted by many civil libertarians as a way to control government abuses. The preservation of FISA, itself, was a concern. These groups did not wish to reduce that protection in response to the new external threat and thereby risk a future internal threat. Accordingly, they were not reassured by many of the proposed changes that allowed for government surveillance. The primary enemy of the civil libertarians in 2000 was their historical enemy. They feared that expanded government authority under the new FISA amendments might permit future civil rights violations similar to Watergate-era abuses by Government agencies. 2. Moral-Educative: Line Drawing With regard to the moral-educative function, President Bush, through the Attorney General, went to Congress with a message of action. Congress supported the effort. Accordingly, the message sent to the public from the president (Attorney General) and the Congress was generally one of consensus. The White House and a majority of Congress were in agreement that the changes to FISA, which, in effect, shifted the acceptable boundaries of wiretapping for national security purposes. For example, the FISA amendment statutorily provided that intelligence gathering be a ‘‘significant’’ purpose, rather than the ‘‘primary purpose’’ – which seems to signify a ‘‘loosening’’ of requirements. In addition, with respect to the drawing of the line, the 2001 provisions continued the distinction between U.S. citizens and non-citizens, although it may be argued that the changes in the provisions deepened the line. Primary concern was directed toward non-U.S. citizens, particularly those who were in the country illegally. The 2001 FISA amendments also drew a line between the external ‘‘enemy’’ – terrorists – and the law-abiding citizen. The enemy, as defined, was characterized as foreign, evil, or pathological, and believing in distasteful ideologies. The symbolic narrative was directed to the future, underscoring the continued threat to national security from terrorists. It defined the enemy as an evil aggressor and the U.S. a law-abiding nation of virtuous and innocent heroes (see, e.g., Edelman 1988:67, 76). 3. Educative Function Simplification through Symbolization The timeframe between the introduction of the 2001 amendments to FISA and the enactment of the USA Patriot Act was short. Considering that few U.S. citizens were aware of FISA, its special court, and special judicial warrant prior to 11 September, it can be argued that some education of the public, and of Congress, did occur. In this instance, the simplicity rather # Blackwell Publishers Ltd. 2002

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than complexity of the response – just corrective amendments to FISA – was emphasized. At the same time, symbolization may have served to further simplify this problem. That is, by fixing the ‘‘gaps’’ in FISA, the threat of terrorism would be reduced, because the tools for combating ‘‘the enemy’’ had been strengthened. 4. Office-Holder Enhancement of Popularity Another symbolic function, identified by Marion (1997:67), was the enhancement of the popularity of an office holder by dealing with a problem. Although the amendments to FISA represent only one of the steps taken by the Bush administration to address the terrorist threat, it may have contributed to the high opinion ratings received by the administration in dealing with the threat. The enhanced popularity of the officeholder may support the administration’s efforts to secure additional changes in FISA, over the objections of civil liberties organizations or other voices. C. CONTINUATION OF THE DEBATE

With the continuing war on terrorism within and beyond our national borders, it is likely that there will be further efforts to modify FISA. Former public officials articulate the continuing debate in newspaper columns. Some argue greater authority should be granted to the Justice Department to engage in unfettered electronic surveillance, while others argue for restraint. With any additional proposed or enacted changes to FISA, one can expect to observe evidence of symbolic politics. We can expect to see continued tension created by trying to reassure some of the public by loosening restraints on electronic surveillance, while at the same time such actions raise others’ concerns about civil liberties violations. We can expect to hear continued debate over who is the ‘‘real’’ enemy: the government agency abusing its power, the enemy from within; or the transnational terrorist organization, the enemy from without that may be living within U.S. boundaries. How satisfactorily these differences are resolved and in turn how the various audiences view the new boundaries may very well affect perceptions of the legitimacy of government action and institutions. VIII. IMPLICATIONS AND CONCLUSIONS

Since 1978, the Foreign Intelligence Surveillance Act has governed foreign intelligence and counterintelligence gathering, within the United States, initially by electronic surveillance, and later, physical searches. FISA has been viewed as an important tool of federal intelligence and law enforcement communities to investigate transnational crimes. Accordingly, understanding the origins of FISA and the underlying politics of the policymaking process that led to its enactment is important to the study of criminal justice # Blackwell Publishers Ltd. 2002

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policymaking. This article has specifically examined the role symbolic politics has played during the enactment of FISA in 1978 and more briefly the 2001 amendments to that legislation. The analysis allows for a further elaboration of the symbolic conceptual framework. It also has implications for the study of criminal justice policymaking. A. ELABORATING THE SYMBOLIC FRAMEWORK

The 1978 FISA case study has implications for the application of symbolic politics as a conceptual framework. As noted earlier, generally, symbolic politics research focuses attention on the public as the audience toward which political activities are directed. This framework contrasts especially with interest group research, which examines how legislative activity rewards organized interests. What is clear in the 1978 FISA example, however, is that the audience toward which activity is directed may be another branch of government or members within one branch trying to reach others. With respect to the moral-educative function, some sources suggested that in 1978, Congress sought to send a message to the president. With regard to the educative function, the Senate Select Committee played a role in educating other members of Congress about executive branch abuses of warrantless electronic surveillance for intelligence purposes and possible legislative alternatives to respond to these abuses. Accordingly, the case study broadens our understanding of to whom political acts may be directed. In short, when examining the political process underlying a particular piece of legislation, the researcher must determine, and not assume, who the audience (or audiences) is. The study focuses attention on the concept of ‘‘enemy’’ and its use in mobilizing a target audience. In each FISA legislative case study the enemy was different. In 1978, the enemy was an internal threat from ‘‘overzealous’’ governmental agencies; the primary threat in 2001 was from external foreign sources, although for some groups concerns remained regarding a threat from within. A comparison of the two FISA cases suggests that opposition to an external enemy characterized as evil or pathological – subject to simplification and symbolization – may facilitate a mobilization of legislative support from various audiences more readily than opposition to an internal enemy. Moreover, it appears that, to be effective, the threat from an internal enemy may have to be perceived by the audience(s) as immediate or imminent; reference to history may not be effective. The FISA study underscores the need for further examination of the concept of enemy and its relationship to the symbolic politics framework. B. UNDERSTANDING CRIMINAL JUSTICE POLICYMAKING

In 1978 and 2001, the educative, reassurance, and moral-educative symbolic functions played a role. In 1978, members of Congress, as well as the public # Blackwell Publishers Ltd. 2002

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had to be educated about one, the legal complexities of regulating electronic surveillance to gather FI and FCI information, within the United States, for national security purposes and, two, how these policies and procedures governing such surveillances might differ from those applied to domestic intelligence gathering. In contrast, in 2001, the educative process was short because of the immediate need to respond to the crisis in 2001. An effort was made, using the media and through the hearings on the FISA legislation, to educate members and the public about FISA and the reason changes were necessary in light of the new threat of terrorism. Moreover, while the 1978 FISA discussions emphasized the complexity of the legislation and the solution to the problem, the 2001 efforts seemed to emphasize the simplicity of the solution. Both the 1978 and 2001 FISA initiatives reflected a desire by Congress to reassure the public that it was addressing the problem at hand. In 1978, the problem was seen as government agencies overstepping their authority. Specifically, the Congress had to reaffirm that the balance of power among the three branches of government and the appropriate balance among civil liberties, privacy, and national security interests would be maintained. In 2001, both the Congress and the White House needed to provide reassurance that the government could protect the public from an overt threat to the national security by an external enemy. For some groups, however, the preservation of FISA, itself, was a concern. FISA had become the modus operandi, accepted by many civil libertarians as a way to control government abuses and they did not wish to reduce that protection in response to a new external threat, thereby risking a new internal threat. The new legislation did not reassure these groups and this debate can be expected to continue with the introduction of new proposals to amend FISA. The 1978 legislation and the 2001 amendments both drew a line between the requirements for surveilling a non-U.S. and U.S. citizen within the United States. Drawing this line was key to enacting the legislation in 1978; the 2001 legislation repeated this distinction. Over time, however, the boundaries might shift. Comparing the 1978 and 2001 FISA cases demonstrates how boundaries may be changed by policy makers in response to changing threats. In both 1978 and 2001, the public was an audience toward which the legislative action was directed. In 1978, the public was sent the message that executive branch wiretaps without probable cause were not acceptable. In addition, and according to some sources, the 1978 legislation also sent a message to the White House incumbent and future presidents that wiretapping decisions were of concern not only to the executive branch but also to the Congress and the Judiciary. Yet, executive branch support for FISA seems to confirm the view that the president was also sending a message that past abuses would end. In 2001, by sending to Congress the proposed changes in FISA, the administration reasserted the role of the executive branch but, at the same time, retained the institutions established in 1978. Their proposed changes left intact the FISA judicial warrant process and the ‘‘three-legged stool’’ – # Blackwell Publishers Ltd. 2002

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the relationship among the executive, legislative, and judicial branches for making wiretap decisions under the FISA statute. In both 1978 and 2001, the underlying message to the public was consensus about a problem and the response needed to address it. The importance of the message, in both cases, was to restore the legitimacy of government institutions and to communicate that the government was acting in the public interest. Analysis using the symbolic politics framework highlights how governments seek to ensure legitimacy in the eyes of the public in order to ensure public quiescence. Although both the 1978 FISA legislation and the 2001 amendments reflect the same symbolic functions, a comparison of the two illustrates how the same legislation at different points in time can reflect the same symbolic functions, but for different reasons. These differences most likely reflect the differences in the circumstances out of which the 1978 and 2001 legislative initiatives – the incidents creating impetus to action in each case were very different. In 1978, concern focused on how to respond to abuse of government authority in order to preserve and protect threatened civil liberties and privacy, while still protecting national security. In 2001, for many citizens and legislators, the primary threat was to the national security and the concern was how to respond to that threat and to protect the physical security of U.S. citizens, focusing secondarily on civil liberties and privacy.

IX. CONCLUSION

In conclusion, symbolic politics is one of several frameworks that may be used to study criminal justice policymaking. It does not explain all aspects of the policymaking process or provisions of a particular legislative proposal. For example, practical legal concerns may provide a better explanation for the establishment of the special FISA court. Also, the framework does not consider other sociological influences on law and lawmaking, such as class conflict or globalization. Applying the symbolic politics framework to specific case studies does, however, provide insight into the policymaking process underlying the legislation. It not only allows the researcher to consider in greater depth the importance of the balancing of interests, but other factors such as the importance of public perceptions of the particular policies and the policymaking process. This framework can be also used to compare legislative proposals at different points in time. Its application, therefore, contributes to our understanding of the criminal justice policymaking process.

BARBARA ANN STOLZ,

PhD. is a political scientist and criminologist who has held positions in academia and government. Her primary research interest is the politics of

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criminal justice policymaking. Her books are Still Struggling: America’s Low-Income Women Confronting the 1980s and Criminal Justice Policymaking: Federal Roles and Processes. NOTES

1. According to Executive Order 12333, foreign ‘‘counterintelligence means information gathered, and activities conducted to protect against espionage, other intelligence activities, sabotage, or assassinations conducted for, or on behalf of, foreign powers, organizations or persons, or international terrorist activities, but not including personnel, physical, document or communications security programs.’’ ‘‘Foreign intelligence means information relating to the capabilities, intentions, and activities of foreign powers, organizations or persons, but not including counterintelligence except for information on international terrorist activities.’’ 2. According to the Justice Department, foreign counterintelligence investigations nearly always include an inherent criminal violation (e.g., espionage, sabotage, or international terrorism), regardless of whether the government ultimately decides to prosecute the target. In some circumstances, the FBI, as a member of the intelligence community may collect foreign intelligence information, but such cases are less likely to result in criminal prosecutions than foreign counterintelligence investigations. (U.S. General Accounting Office 2001: 2, n. 4). 3. Congress amended FISA in 1994 to include physical searches for foreign intelligence purposes under the FISA warrant procedures, but did not change those procedures. This article focuses on the process underlying the 1978 legislation and does not address the events and processes that led to the 1994 amendments. 4. A mark-up is a session of a subcommittee or committee during which time it considers a bill, the different views, details of the bill, at the end of which a vote is taken to determine what action is to be taken on the bill. They are usually open to the public (Zinn & Willet 1978:14). 5. A list of relevant hearings and reports is provided at the end of the article; however, all the hearings enumerated are not cited within this text. 6. The general issue of electronic surveillance and wiretapping arose earlier in the century and national security interests and electronic surveillance converged in 1918 when a criminal penalty was enacted to protect the telephone system operated by the United States government during World War I from espionage (Cinquegrana 1989: 795, 797). 7. Henceforth in this article referred to as the Church Committee in recognition of its chair, Frank Church (Dem. Idaho). 8. The act made it a crime for any ‘‘person’’ without authorization to intercept and divulge or publish the contents of wire and radio communications. Congress acquiesced in the Justice Department’s position that these cases prohibited only divulgence of the content of wiretap communications outside the executive branch, and government wiretapping for intelligence purposes other than prosecution continued (U.S. Congress. Senate. Select Committee to Study Governmental Operations with Respect to Intelligence Activities 1976: app. D, 275). 9. In addition to wiretaps, such surveillances may include: pen registers, which are devices which record numbers dialed on a telephone; trap and trace, which are devices that record incoming numbers (e.g., caller identification); and microphone interception, such as planting a ‘‘bug’’ in a room. 10. For the purposes of this article, it is not necessary to detail the presidential actions that the congressional committees identified as abuses, but simply to indicate that the Church Committee, among others, concluded that the # Blackwell Publishers Ltd. 2002

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13. 14.

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executive branch had misused wiretapping – surveilling U.S. citizens, within the United States, when there was no probable cause of a crime. For additional discussion, see Cinquegrana (1989) and Bazan (2000). United States v Johnson (1991); United States v Duggan (1984); United States v Pelton (1987); United States v Badia (1987); United States v Rahman (1994, 1999, 2000); United States v Megahey (1982, 1983); United States v Sarkissian (1988). See references for complete citations. Representative Robert Drinan (Dem) offered an amendment to allow the phone company, landlords, and others to refuse to assist in surveillance which was rejected by the House Senate (Congressional Quarterly Almanac 1978:192). See, for example, U.S. Congress. Senate. Judiciary Subcommittees on Criminal Laws and Procedures and Constitutional Rights Hearings 1975; U.S. Congress. House. Judiciary Subcommittee on Courts, Civil Liberties, and the Administration of Justice Hearings 1974. Interviewees agreed that it was Attorney General Edward Levi who suggested that Kennedy introduce the legislation. The proposed legislation was subsequently cosponsored by both democratic Senator Gaylord Nelson and Republican Senators Strom Thurmond and Orrin Hatch. In the hearing record, Senator Kennedy thanked the Attorney General for ‘‘the most constructive role’’ he played in the development of the legislation (U.S. Congress. Senate. Committee on the Judiciary. Subcommittee on Criminal Laws and Procedures 1976:4). Kennedy was joined by Democratic Senator Gaylord Nelson and later by Republicans Thurmond and Hatch, as cosponsors. The legislation ultimately gained broad bipartisan support in the Senate and from the Ford Administration. A more stringent standard is used when FISA is applied to a U.S. citizen (including U.S. citizens and resident aliens). This standard refers to any person who, among other things, knowingly or pursuant to the direction of an intelligence service or network, engages in clandestine intelligence gathering activities for or on behalf of a foreign power, which activities involve or may involve a violation of the criminal statutes of the United States; or knowingly engages in sabotage or international terrorism, or in activities that are in preparation therefor; or knowingly aids or abets any person in the conduct of such activity (U.S. General Accounting Office 2001:8). (The affidavit in the Hanssen espionage case indicates the use of FISA tools.) What is important to note is that the so-called ‘‘primary purpose’’ test was used between 1978 and 2001 by the Justice Department and the FISA Court, as well as some other federal courts, to interpret FISA. When changes are incorporated into a bill and it is then reintroduced with a new number, it is referred to as a ‘‘clean bill.’’

REFERENCES BAKER, RALPH,

and FRED A. MEYERS, JR. (1980) The Criminal Justice Game: Politics and Players. North Scitiuate, Mass.: Duxbury Press. BAZAN, ELIZABETH B. (2000) The Foreign Intelligence Surveillance Act: An Overview ofthe Statutory Framework for Electronic Surveillance. Washington, D.C.: Congressional Research Service. BERNS, WALTER (1979) For Capital Punishment: Crime and the Morality of the Death Penalty. New York: Basic Books. CINQUEGRANA, AMERICO R. (1989) ‘‘The Walls (and Wires) Have Ears: The Background and First Ten Years of the Foreign Intelligence Surveillance Act of 1978,’’ University of Pennsylvania Law Review 137:793–828. # Blackwell Publishers Ltd. 2002

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(1978) CIS/INDEX to Legislative Histories. Bethesda, Md.: Congressional Information Service. CONGRESSIONAL QUARTERLY ALMANAC (1978) ‘‘Controls Tightened on Use of Wiretaps,’’ Congressional Quarterly Almanac 34:186–93. CONGRESSIONAL QUARTERLY (2001) ‘‘Anti-Terrorism,’’ Congressional Quarterly Weekly 59(9):3044. DOYLE, CHARLES (2002) ‘‘The USA Patriot Act: A Sketch,’’ CRS Report for Congress, available at http://www.fas.org/irp/crs/RS21203.pdf. DURKHEIM, EMILE (1966) The Division of Labor in Society. Trans. by G. Simpson. 4th ed. New York: Free Press. EDELMAN, MURRAY J. (1964) The Symbolic Uses of Politics. Urbana: Univ. of Illinois Press. —— (1971) Politics as Symbolic Action: Mass Arousal and Quiescence. Chicago: Markham Pub. Co. —— (1988) Constructing the Political Spectacle. Chicago: Univ. of Chicago Press. GUSFIELD, JOSEPH R. (1963) Symbolic Crusade: Status Politics and the American Temperance Movement. Urbana: Univ. of Illinois Press. HOLLAND, JESSE J. (2001) ‘‘Bush Signs Sweeping Anti-Terrorism Bill into Law, Promises Stiff Enforcement,’’ Associated Press 26 October. LANCASTER, JOHN (2001) ‘‘Anti-Terrorism Bill is Approved: Bush Cheers House’s Quick Action, But Civil Liberties Advocates are Alarmed,’’ Washington Post 13 October:A-1, 7–8. LIGHT, PAUL CHARLES (1983) The President’s Agenda: Domestic Policy Choice from Kennedy to Carter. Baltimore: John Hopkins Univ. Press. MARION, NANCY E. (1994) A History of Federal Crime Control Initiatives, 1960–1993. Westport, Conn.: Praeger. —— (1995) A Primer in the Politics of Criminal Justice. Albany, N.Y.: Harrow & Heston. —— (1997) ‘‘Symbolic Policies in Clinton’s Crime Control Agenda,’’ Buffalo Criminal Law Review 1:67–108. MCGEE, JIM, and BRIAN DUFFY (1996) Main Justice: The Men and Women Who Enforce the Nation’s Criminal Laws and Guard Its Liberties. New York: Simon & Schuster. STOLZ, BARBARA A. (1983) ‘‘Congress and Capital Punishment: An Exercise in Symbolic Politics,’’ Law & Policy Quarterly 5:157–79. —— (1985) ‘‘Congress and Criminal Justice Policy Making: The Impact Of Interest Groups And Symbolic Politics,’’ Journal of Criminal Justice 13:307–19. —— (1992) ‘‘Congress and the War on Drugs: An Exercise in Symbolic Politics,’’ Journal of Crime and Justice 15:119–36. —— (1999) ‘‘Congress, Symbolic Politics and the Evolution of the 1994 ‘Violence Against Women Act,’’’ Criminal Justice Policy Review 10:401–28. U.S. GENERAL ACCOUNTING OFFICE (GAO) (2001) FBI Intelligence Investigations: Coordination Within Justice on Counter Intelligence Criminal Matters is Limited: Report to the Banking Minority memeber, Committee on Governmental Affairs, U.S. Senate. (GAO–01–780) Washington, D.C.:GAO. U.S. CONGRESS. House. Committee on the Judiciary. Subcommittee on Courts, Civil Liberties, and the Administration of Justice (1974) Wiretapping and Electronic Surveillance: Hearings before the Subcommittee on Courts, Civil Liberties, and the Administration of Justice. 93rd Cong., 2nd Sess. —— (1975) Surveillance: Hearings before the Subcommittee on Courts, Civil Liberties, and the Administration of Justice. 2 vols. 94th Cong., 1st Sess. —— (1977) Foreign Intelligence Surveillance Act: Hearings before the Subcommittee on Courts, Civil Liberties, and the Administration of Justice. 94th Cong., 2nd Sess. —— Permanent Select Committee on Intelligence (1978a) Foreign Intelligence Surveillance Act of 1978: Report Together with Supplemental, Additional, and CONGRESSIONAL INFORMATION SERVICE

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Dissenting Views to Accompany H.R. 7308. Part I. 95th Cong., 2nd Sess. H. Rept. 1283. —— (1978b) Foreign Intelligence Surveillance Act of 1978: Conference Report to Accompany S. 1566. 95th Cong., 2nd Sess. H. Rept. 1720. —— Permanent Select Committee on Intelligence. Subcommittee on Legislation (1978) Foreign Intelligence Electronic Surveillance: Hearings before the Subcommittee on Legislation of the Permanent Select Committee on Intelligence. 95th Cong., 2nd Sess. U.S. CONGRESS. Senate. Committee on the Judiciary (1977) The Foreign Intelligence Act of 1977 (S. 1566). 2 vols. 95th Cong., 1st Sess. S. Rept. 604. —— Committee on the Judiciary. Subcommittee on Administrative Practice and Procedures (1973) Warrantless Wiretapping. Hearings. 92nd Cong., 2nd Sess. —— Committee on the Judiciary. Subcommittee on Criminal Laws and Procedures (1976) Foreign Intelligence Surveillance Act of 1976: Hearings before the Subcommittee on Criminal Laws and Procedures. 94th Cong., 2nd Sess. —— (1977) Foreign Intelligence Surveillance Act of 1977: Hearings before the Subcommittee on Criminal Laws and Procedures. 95th Cong., 1st Sess. —— Committee on the Judiciary. Subcommittee on Criminal Laws and Procedures and Subcommittee on Constitutional Rights (1975) Electronic Surveillance for National Security Purposes: Hearings before the Subcommittees on Criminal Laws and Procedures and Constitutional Rights. 93rd Cong., 2nd Sess. —— Committee on the Judiciary. Subcommittee on Criminal Laws and Procedures and Foreign Relations Committee, Subcommittee on Surveillance and Procedures (1975) Warrantless Wiretapping and Electronic Surveillance. Committee Print. 94th Cong., 1st Sess. —— Select Committee on Intelligence (1978) Foreign Intelligence Surveillance Act of 1978. 95th Cong., 2nd Sess. S. Rept. 701. —— Select Committee on Intelligence (1981) Implementation of the Foreign Intelligence Surveillance Act of 1978 (1980-81). 97th Cong., 1st Sess. S. Rept. 280. —— Select Committee on Intelligence. Subcommittee on Intelligence and the Rights of Americans (1976) Electronic Surveillance within the United States for Foreign Intelligence Purposes: Hearings before the Subcommittee on Intelligence and the Rights of Americans. 94th Cong., 2nd Sess. —— (1978) Foreign Intelligence Surveillance Act of 1978: Hearings on S. 1566 before the Subcommittee on Intelligence and the Rights of Americans. 95th Cong., 1st–2nd Sess. —— Select Committee to Study Governmental Operations with Respect to Intelligence Activities (1976) Final Report. Also titled: Intelligence Activities and the Rights of Americans. 6 vols. 94th Cong., 2nd Sess. S. Rept. 755. —— Select Intelligence Committee, Hearings (1978) see U.S. Congress. Senate. Select Committee on Intelligence. Subcommittee on Intelligence and the Rights of Americans (1978). ZINN, CHARLES J. and EDWARD F. WILLETT (1978) How Our Laws Are Made. Washington, D.C.: U.S. Government Printing Office.

CASES CITED

Olmstead v United States, 277 US 438, 48 S Ct 564, 72 L Ed 944 (1928). United States v Badia, 827 F2d 1458 (CA11 1987). United States v Duggan, 743 F2d 59 (CA2 1984). United States v Pelton, 835 F2d 1067 (CA4 1987). United States v Humphrey, 456 F Supp 51 (ED Va 1978). # Blackwell Publishers Ltd. 2002

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United States v Johnson, 952 F2d 565 (CA1 1991). United States v Megahey, 553 F Supp 1180 (EDNY 1982), aff’d, 729 F2d 1444 (CA2 1983). United States v Rahman, 861 F Supp 247 (SDNY 1994), aff’d, 189 F3d 88 (CA2 1999). United States v Sarkissian, 841 F2d 959 (CA9 1988). United States v Truong, 629 F2d 908 (CA4 1980). United States v United States District Court (Keith), 407 US 297, 92 S Ct 2125, 32 L Ed 2d 752 (1972). Zweibon v Mitchell, 516 F2d 594 (CADC 1975).

STATUTES AND EXECUTIVE ORDERS CITED

Executive Order 12333, 46 Fed Reg 59,941 (4 Dec 1981). Anti-Drug Abuse Act, Pub L No 100-690, 102 Stat 4181 (1988). Foreign Intelligence Surveillance Act (FISA), Pub L No 95-511, 92 Stat 1783 (1978), amended by Intelligence Authorization Act for Fiscal Year 1995, Pub L No 103359, 108 Stat 3423 (1994). Omnibus Crime Control and Safe Streets Act, Pub L No 90-351, 82 Stat 197 (1968) (as amended). Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act) Act, Pub L No 107-56, 115 Stat 272 (2001).

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