The Impact of a Knee-Jerk Reaction: The Patriot Act Amendments to the Foreign Intelligence Surveillance Act and the Ability of One Word to Erase Established Constitutional Requirements
The attacks of September 11th sparked a new era in American political and legal history, altering the disposition of the nation’s citizens and the legal community from a feeling of comfort and tranquility to vulnerability and paranoia. A result of this vulnerability was the kneejerk reaction by the government to erect protective barriers to fortify the nation from external threats, and consequently permit surveillance techniques not previously validated by the judiciary, which threatened the individual privacy rights of American citizens. One legal response to the attacks was the amending of the Foreign Intelligence Surveillance Act (“FISA”) by the U.S.A. Patriot Act to require “the significant purpose,” rather than “the purpose,” of warrantless surveillance to be foreign intelligence gathering. This change in language had the stated purpose of deconstructing a Department of Justice (“DOJ”) policy, created and imposed by the Department due to the misinterpretation of FISA by both the DOJ and the FISA court, which prevented communications between foreign intelligence agents engaged in FISA authorized surveillance and criminal prosecutors. By amending the language of FISA to remedy an inter-departmental policy, the Patriot Act authorized surveillances of American citizens below the previously established constitutional limits.