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FISA -- It's not everywhere you want it to be

By Christopher Kilmer
web posted July 29, 2002

Some of the most arrogant and contemptuous crimes against Americans have been committed at the hands of the Federal Bureau of Investigation and the Central Intelligence Agency. After the hideous excesses of the 1950s and 1960s, when intelligence agencies kept files on thousands of law-abiding Americans for simply expressing unpopular opinions, Congress conceived the Foreign Intelligence Surveillance Act of 1978 (FISA). The FISA aimed generally to restrict the CIA to the domain of foreign intelligence.

However, despite the mistakes of our past, the USA PATRIOT Act, passed in October 2001, has taken us back to the 1950s by removing the safeguards on information sharing between the CIA and its counterpart domestic agencies. The CIA, FBI, National Security Agency and Immigration and Naturalization Service, among other agencies, maintain extensive databases full of sensitive information on American citizens. Until the USA PATRIOT Act, laws such as the FISA regulated the sharing of this information between agencies.

In particular, the FISA limited the CIA's "counterintelligence" activities on American citizens; that is, activities conducted to prevent sabotage, espionage, and other acts on behalf of foreign governments, international terrorists or their foreign agents.

Recent events involving the "intelligence community" illustrate the vital necessity for the Federal Government to implement safeguards to prevent the abuse of sensitive information. For example, the disturbing case of former Drug Enforcement Administration agent Emilio Calatayud demonstrates the very real danger of expanding the amount of information exchange available to federal agencies. Mr. Calatayud allegedly sold information from various law enforcement computer databases, including the FBI, to a private investigation firm.

Clearly, the sharing of domestic information between federal intelligence agencies can lead to abuses such as the Calatayud case. So why should we be any more confident that the CIA, with increased access to FBI and other databases, will properly monitor its own agents to avoid improper disclosure of information to our enemies? As we learned from Robert Hanssen, the CIA spy who gave away countless American secrets to the Soviets, information leaks can wreak havoc on our national security. Yet, under the USA PATRIOT ACT, as the American Civil Liberties Union has stated, "foreign intelligence information about Americans that could be shared with the CIA need not be information that is necessary... to the national defense and security of the U.S." Now that the CIA has gained access to a heretofore-off limits treasure trove of domestic intelligence databases, the dangers to ordinary Americans have increased substantially.

With increased interagency access to intelligence should also come increased vigilance against its misuse. Yet, the USA PATRIOT Act provides no guidelines for the control of dissemination of information concerning American citizens, placing not just their privacy, but also their lives at risk. If Mr. Hanssen were still a spy today, one could imagine the glee he might feel over the fact that Congress made him privy to information collected by all the major federal intelligence agencies. How many other Robert Hanssens are helping hostile foreign powers at this very moment under the auspices of the USA PATRIOT Act?

The FISA was designed over 20 years ago to prevent repetition of egregious abuses of federal power that occurred due to the highly incestuous intelligence sharing practices of the CIA and FBI. Careful steps were taken to separate the missions of these two agencies - the CIA was designated for foreign intelligence, while the FBI for domestic. The USA PATRIOT Act takes a step backward, blurring the lines between the CIA, FBI, NSA, DEA, and other agencies, effectively merging them all into a giant intelligence-gathering machine. Granted, in a post-9/11 world, some information sharing between agencies is warranted, but only if that information pertains directly to furthering national security interests or imminent acts of crime. The Calatayud-Hanssen, er, USA PATRIOT Act should be amended to reflect the original intent of the FISA - to prevent intelligence on law-abiding Americans from falling into the wrong hands.

Christopher Kilmer is a Koch Fellow summer research associate at the Free Congress Foundation.

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