Future of Foreign Intelligence

"Since the nations’ founding, America’s leaders have recognized that national security depends upon the collection of intelligence. The legislature and the courts have thus given the executive branch a wide berth to determine how best to obtain and use foreign intelligence. At times, the executive has so aggressively pursued its course that it has run afoul of the Constitution. At such junctures, Congress and the courts have sought to bring it back into line. In the 1970s, the Foreign Intelligence Surveillance Act represented one such moment. The law provided the President with enough authority to deter external attack and to ensure domestic security, while protecting individual rights. The courts subsequently considered the legislation to be a Constitutional limit on executive power. For nearly three decades, the equilibrium held. But … the 9/11 attacks radically shifted the landscape. The executive branch immediately took advantage of new and emerging technologies, bypassing the statutory realm altogether. In the process, it ran roughshod over important limits that the founding generation, for good reason, cemented into the Fourth Amendment. Later efforts to shoehorn surveillance programs into the statutory framework led to a contorted reading of the law—one hidden from public view until a series of leaks forced the information into the public domain. Individual liberty is now on the line. General warrants, rejected by the Framing generation, are beginning to reappear. Important legal doctrines have yet to recognize the privacy interests at stake in electronic communications. And the convergence between national security and law enforcement means that weaker foreign intelligence standards are being used in ordinary criminal prosecution. At risk is the right to privacy and the balance of power in the United States. The stakes could not be higher as we enter the digital age." -- Book jacket. "Since the Revolutionary War, America's military and political leaders have recognized that U.S. national security depends upon the collection of intelligence. Absent information about foreign threats, the thinking went, the country and its citizens stood in great peril. To address this, the Courts and Congress have historically given the President broad leeway to obtain foreign intelligence. But in order to find information about an individual in the United States, the executive branch had to demonstrate that the person was an agent of a foreign power. Today, that barrier no longer exists. The intelligence community now collects massive amounts of data and then looks for potential threats to the United States. As renowned national security law scholar Laura K. Donohue explains in The Future of Foreign Intelligence, the internet and new technologies such as biometric identification systems have not changed our lives in countless ways. But they have also led to a very worrying transformation. The amount and types of information that the government can obtain has radically expanded, and information that is being collected for foreign intelligence purposes is now being used for domestic criminal prosecution. Traditionally, the Courts have allowed exceptions to the Fourth Amendment rule barring illegal search and seizure on national security grounds. But the new ways in which we collect intelligence are swallowing the rule altogether. Just as alarming, the ever-weaker standards that mark foreign intelligence collection are now being used domestically-and the convergence between these realms threatens individual liberty. Donohue traces the evolution of foreign intelligence law and pairs that account with the progress of Fourth Amendment jurisprudence. She argues that the programmatic surveillance that the National Security Agency conducts amounts to a general warrant-the prevention of which was the point of introducing the Fourth Amendment. The expansion of foreign intelligence surveillance-leant momentum by significant advances in technology, the Global War on Terror, and the emphasis on securing the homeland-now threatens to consume protections essential to privacy, which is a necessary component of a healthy democracy. Donohue offers an agenda for reining in the national security state's expansive reach, primarily through Congressional statutory reform that will force the executive and judicial branches to take privacy seriously, even as it provides for the continued collection of intelligence central to U.S. national security. Both alarming and penetrating, this is essential reading for anyone interested in the future of foreign intelligence and privacy in the United States"-- "More of what we say, do, and think is recorded than ever before. Over the past decade, the government has expanded its access to this data through new foreign intelligence statutes and secret interpretations of the law. Convergence between national security and law enforcement means that the weaker standards are spreading. At stake is the future of individual rights, and the balance of power, in the United States"--