From the Illumi-Net BBS Decatur, GA Conspiracy Theory Conference 404-377-1141 NO PROTECTIO

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From the Illumi-Net BBS Decatur, GA Conspiracy Theory Conference 404-377-1141 NO PROTECTION FOR U.S. CITIZENS This article is reprinted from Full Disclosure. Copyright (c) 1986 Capitol Information Association. All rights reserved. Permission is hereby granted to reprint this article providing this message is included in its entirety. Full Disclosure, Box 8275-CI3, Ann Arbor, Michigan 48107. $15/yr. The Minimization Procedure required by the Foreign Intelligence Surveillance Act (50 U.S.C. 1801) offers no protection to United States Citizens. The U.S. government's secret spy court authorized under the Foreign Intelligence Surveillance Act is used by intelligence agencies (CIA, FBI, NSA, etc) to obtain authorization to electronically spy on foreign powers and their agents within the United States. The Act requires a minimization procedure to be followed with respect to information obtained on U.S. persons in the course of the surveillance. When a law enforcement agency seeks to electronically surveil a suspected criminal they are required to demonstrate probable cause that a crime has been or will be committed in order to obtain a search warrant. However, for an intelligence agency to obtain a warrant from the United States Foreign Intelligence Court (USFISC), they only need to demonstrate probable cause that the target is a foreign power or an agent of a foreign power. That is to obtain a warrant in a normal Federal or State Court, there must be evidence of a crime, but to obtain a warrant in the USFISC there merely needs to be an indication that the target might be associated with a certain class of people. To "protect" U.S. persons a minimization procedure is employed with respect to the disclosure of information obtained during the surveillance of foreign powers and their agents. Full Disclosure has obtained a copy of a FBI warrant application filed with the USFISC which details the actual minimization procedure. According to the application's Exhibit A which details the procedure: These procedures apply to the acquisition, retention, and dissemination of nonpublicly available communications and other information concerning unconsenting United States persons that is collected in the course of electronic surveillance directed at the telephone communications of this agent of a foreign power and oral communications of this agent of a foreign power... When the FBI begins the surveillance, they will verify that the telephone communications lines being intercepted at the residence and business are in fact the telephone lines of the agent of the foreign power. The FBI agents who monitor the communications are responsible for determining if the information "intercepted must be minimized". Further, the communications of United States persons (this includes discussions of U.S. persons by foreign powers) will be subject to "continuing analysis to establish categories of communications that are not pertinent to the authorized purpose of the surveillance". The categories are to be established after a reasonable period of monitoring the communications of the foreign power. No information was provided which would indicate that information categorized as not pertinent would be stored, processed or disseminated any differently than pertinent information. Access to information obtained regarding United States persons is to be under strict controls. Use of the information is restricted to FBI supervisory, investigative, and clerical personnel who have a need to know the information for "foreign intelligence or law enforcement" purposes. Any information which contains evidence of a criminal offense is retained until a decision is rendered by prosecutive officials, and if the United States person is prosecuted the information will be retained until the end of the prosecution. To further "protect" United States persons information regarding them won't be disseminated without their consent, unless the information is "evidence of a crime which has been, is being, or is about to be committed". Such information can be disseminated to "Federal, state, local, or foreign officials or agencies with law enforcement responsibility for the crime". Information regarding U.S. persons which is not evidence of a crime, but which reasonably appears to be foreign intelligence information can be disseminated in a "manner which identifies United States persons only for authorized foreign intelligence, foreign counterintelligence, countersabotage, and international terrorism, or law enforcement purposes". So far, there is little minimization (or protection) of information regarding United States persons which was obtained in a manner inconsistant with the Fourth Amendment warrant requirements. The last sentence of the Exhibit appears to set forth the only protection afforded the United States person: Any information acquired from electronic surveillance of the target of a foreign power which is disseminated for law enforcement purposes shall be accompanied by a statement that such information or any information derived therefrom, may only be used in a criminal proceeding with the advance authorization of the Attorney General. Prior to the passage of the Foreign Intelligence Surveillance Act, George Hasen, Chairman of the Committee on Civil Rights wrote a letter to Senator Inouye outlining this very problem. The text of his letter follows: Dear Senator Inouye: We understand that your Committee has received from the Committee on Federal Legislation of the Association of the Bar of the City of New York its critique of the provisions of the proposed Foreign Intelligence Surveillance Act of 1977 (S. 1506). Our Committee on Civil Rights associates itself, generally, with that critique, but we disagree with it in one important respect. Both the Committee on Federal Legislation and the Committee on Civil Rights are concerned because the standards imposed by S. 1566 for obtaining a warrant to engage in electronic surveillance do not, in some instances, require a probable cause showing of criminal conduct. It is the considered judgment of the Committee on Civil Rights that a CRIMINAL STANDARD IS ESSENTIAL to the bill and, unlike the Committee on Federal Legislation, we believe that unless S. 1566 is amended to provide such a standard, it should not be enacted. We think that is important to remember why this legislation is needed. Clearly it is not needed to empower government agencies to carry on electronic surveillance. Rather, the need is for legislation which will limit and control electronic surveillance and the consequent government intrusion into the private lives of American Citizens. The findings of Congressional committees which over the last several years have investigated intelligence agency abuses HAVE MADE THIS ABUNDANTLY CLEAR. Based on such findings, the Church Committee specifically concluded that no American should "be targeted for electronic surveillance except upon a judicial finding of probable criminal activity" and, further, that targeting "an American for electronic surveillance in the absence of probable cause to believe he might commit a crime, is unwise and unnecessary." (Intelligence Activities and the Rights of Americans, Final Report of the Select Committee to Study Governmental Operations with Respect to Intelligence Activities, U.S. Senate, 94th Cong., 2nd Sess. (1976), at 325.) Further the Supreme Court has warned of the danger to First Amendment rights inherent in national security surveillances: "National security cases . . . often reflect a convergence of First and Fourth Amendment values not present in cases of `ordinary' crime. Though the investigative duty of the executive may be stronger in such cases, so also is there greater jeopardy to constitutionally protected speech. `Historically the struggle for freedom of speech and press in England was bound up with the issue of the scope of the search and seizure power,' Marcus v. Search Warrant, 367 U.S. 717, 724 (1961). History abundantly documents the tendency of Government -- however benevolent and benign its motives -- to view with suspicion those who most fervently dispute it policies. Fourth Amendment protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs. The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect `domestic security.' Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent.' United States v. United States District Court, 407 U.S. 297, 313 (1971). Notwithstanding these warnings, S. 1566 would permit the electronic surveillance of United States citizens and other persons for 90 days or more without any showing that they are engaged in, or likely to be engaged in, criminal activity. Section 2521(b)(2)(B)(iv)/1 would go even further and would permit the electronic surveillance of individuals who "knowingly" aid and abet persons whose conduct may be entirely lawful. Surely, the burden of justifying such a departure from basic Fourth Amendment principles -- if indeed it can be justified -- ought to be on the proponents of such provisions. And, surely, they ought to be able to specify precisely those lawful activities of American citizens which are so vital to the safety of the nation that the Government must be permitted to surreptitiously gather information about them and, worse, to do so by such an intrusive method as electronic surveillance. In our opinion, however, two Attorneys General have been unable to sustain that burden, and the few examples are simply unconvincing. In our view, the necessity of a non-criminal standard has not been demonstrated, and it should, therefore, be rejected. There is another and perhaps even more important reason why such a standard should not be accepted. If, in this first legislative attempt to control searches in national security matters, Congress authorizes the most intrusive and least precise of techniques -- electronic surveillance -- where no crime is involved, what justification will there be for barring in similar situations more specific methods such as surreptitious entry and mail openings? And if a non-criminal standard is necessary to protect the national security where the connection with a foreign power can be as tenuous as that provided in S. 1566, what arguments can be made against a similar standard in domestic situations where the perceived danger to national security may be just as great? S. 1566 represents in some respects an advance over earlier proposals, but in out view, IF A NON-CRIMINAL STANDARD IS RETAINED, ENACTMENT OF THIS LEGISLATION WILL LEGITIMIZE THE VERY CONDUCT IT OUGHT TO PROHIBIT AND WILL CONSTITUTE A SERIOUS BLOW TO CIVIL LIBERTIES. If permitted by your procedures, it would be appreciated if this letter were made a part of the record of the hearings of your Committee on this bill. [emphassis added] /1 This section was passed into law.


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