Patriot Act and FISA

Patriot Act and FISA

Introduction

The antiterrorist policy of the George W. Bush Administration established a relationship between democracy and security that implied the limitation of the former as a necessary condition for the achievement of the goals of the latter. This strategy led to the suppression - through legal means - of the basic liberties promoted by liberal democracy, with the objective of 'guaranteeing' the security of American citizens. We find a key starting point of these kinds of policies in the undercover operations carried out abroad by the Central Intelligence Agency (CIA) and the Department of State at the beginning of the Cold War. These policies were also implemented at home during the McCarthyism period and after its decline became institutionalized in the FBI-headed program COINTELPRO (Torr, 2006). The mechanisms of repression, pursuit, and persecution applied by those organizations were adopted by the George W. Bush Administration, putting basic civil liberties in danger once more. However, those liberties - according to the official discourse - formed the pillars of the 'American way of life' and were the same liberties that this government ostensibly fought to extend to the rest of the world.

It is often said that security acquired a central role in United States foreign policy during the Cold War, based on the principles of the realist approach (Ball, 2004). These principles fell into an 'apparent' tension with the liberal or idealist viewpoint of foreign affairs. Taking these trends into account, The National Security Act of 1947 created the Department of Defense to replace the War Department and encompass the US Marines. It also created the National Security Council to advise the president and the Central Intelligence Agency (CIA). These institutions were empowered to act abroad 'undercover' as it was believed there was 'vital information' for the security of the United States that could only be obtained through clandestine operations. The secret 'intelligence operations' would include espionage and counter-espionage mechanisms overseas, whereas this type of action was 'strictly prohibited' on US territory. However, this prohibition did not interfere with the practices and institutions endorsed by McCarthyism that were not limited to 'legal' and public operations,8 but which enabled 'black operations' at home.9 These measures were followed by a rise in the defense budget and the constitution of what was later termed by President Dwight Eisenhower the 'military-industrial complex' (Treverton, 2008).

Foreign Intelligence Surveillance Act (FISA)

The FISA focused on spotting foreigners related to 'intelligence activities' and expanded the use of wiretaps and electronic surveillance. The Patriot Act contained norms similar to those mentioned, although any American citizen fell within its scope. Despite supposed care not to discriminate, its target remains immigrants who are Muslims, Arabs or Asians, as detailed at the beginning of the Act's text. In Sec. 202, the Patriot Act empowers government officials to carry out a 'roving wiretap', that is, to wiretap any communication that is allegedly related to terrorist actions, and allows the sharing of information on criminal investigations including foreign intelligence and ...