![]() ![]() Investigations of suspected terrorists often fit this category. But the FBI is largely prohibited from using evidence gathered in intelligence cases to prosecute criminal cases, and when intelligence and criminal investigations overlap, they come under severe scrutiny from FISC. Instead, searches have to be approved by the Foreign Intelligence Surveillance Court (FISC), a secret court established by FISA.Īs long as the primary purpose of a search is to gather intelligence on foreign powers and their agents, then FISC allows the FBI to ignore many Fourth Amendment restrictions, such as having to show probable cause. FISA banned warrantless searches of individuals suspected of being agents of foreign powers (according to the law, a "group engaged in international terrorism" is considered a "foreign power"). The CIA was prohibited from engaging in domestic counterintelligence operations, and a legal framework was developed to govern how the FBI would conduct them instead. In 1978, in an attempt to curb Fourth Amendment violations that had occurred in the name of counterespionage, Congress passed the Foreign Intelligence Surveillance Act (FISA).įISA, along with several other reforms of the 1960s and 1970s, established a "wall" between intelligence gathering and law enforcement. and Vietnam War protesters-that, though controversial, were clearly not agents of foreign governments. In the 1960s and 1970s, a series of journalistic and congressional investigations revealed that since the 1950s the government had abused its intelligence operations, using the CIA, FBI, and other agencies to spy on organizations and individuals-such as Martin Luther King Jr. The key difference is that spying has historically been justified as a tool of national security rather than law enforcement, to be used against "foreign powers" rather than ordinary citizens. And there is no natural check on this power, even the target of an investigation is often blissfully unaware of snooping federal agents. And search warrants are much broader for intelligence investigations, which allow agents to search homes or businesses or use wire taps, read e-mail and regular mail for months. Investigators need only show evidence that a person may be involved in gathering information for a "foreign power," which includes al Qaeda. Intelligence investigations … don't have these civil liberty protections. As the Wall Street Journal's Brendan Miniter explains, However, intelligence investigations aimed at deterring espionage and other activities-including terrorism-are different. These Fourth Amendment protections apply to almost all criminal investigations conducted by law enforcement agencies, from local police departments to the FBI. As the Center for Constitutional Rights (CCR) explains, "The Fourth Amendment ensures that law enforcement agencies and officers do not act maliciously or conduct investigations where no credible evidence of wrongdoing exists." 73 The Wall Between Intelligence Gathering and Law Enforcement To obtain warrants, law enforcement agents must usually demonstrate "probable cause" to a judge-that is, show that they have reasonable grounds for suspecting an individual of committing a crime. Modern courts interpret this to mean that law enforcement agencies must normally obtain warrants toĬonduct searches. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Constitution's Fourth Amendment, which states that Law enforcement's authority to employ these search and surveillance techniques is restricted by the U.S. In addition to having law enforcement agents follow and monitor suspected terrorists and perform physical searches of their homes or headquarters, these agencies may tap phones, monitor Internet use and e-mail, use electronic eavesdropping devices, and inspect suspects' financial, credit card, student, employment, and other records. To do this, law enforcement and intelligence agencies such as the FBI and CIA use a variety of surveillance and search techniques. Rather than trying to protect every possible target, one of America's primary strategies in preventing terrorism is to identify terrorists and learn of their plans before they are carried out. targets against terrorist attacks is, therefore, very difficult. Terrorists have the element of surprise: It is likely that there will be little or no prior warning of when, where, or how the next attack will occur. The law enforcement officials charged with preventing another terrorist attack on America face a daunting challenge. ![]()
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