FISA Surveillance and Aliens

The April 2013 Boston Marathon attacks, together with Edward Snowden’s June 2013 release of documents revealing expansive U.S. governmental spying practices targeting U.S. citizens, remind us that terror and governmental surveillance lurk in our midst and at times appear inseparable. Small-scale strikes at the American homeland have occurred since the founding of our republic. In response, the Constitution sets forth a treason doctrine to address domestic threats where the underlying acts are construed as “levying War” against the United States or in “adhering to [its] enemies, giving them Aid and Comfort.” For better or worse, a fear of abuse allowed the doctrine to atrophy though repeated attempts have aimed to better equip the government in its ability to uncover subversion. In the wake of protests against the war in Vietnam and perceived leftist influence, for example, President Richard Nixon authorized domestic monitoring and surveillance. Congress formally legalized these activities in the Foreign Intelligence Surveillance Act (FISA) legislation. After the September 11, 2001, World Trade Center and Pentagon attacks, Congress further strengthened the government’s surveillance tools by enacting the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (PATRIOT Act) and issuing a joint resolution — the Authorization for Use of Military Force (AUMF) — which legalize the president’s discretion to use military force at home and abroad in the so-called War on Terror. Still, legislation in this regard has traditionally included a carve-out for the free exercise of civil liberties. In this vein — and in light of the PATRIOT Act and AUMF targeting threats to U.S. interests “both at home and abroad” — we might expect our surveillance apparatus to be uniform and not dependent upon suspect categories of discrimination such as alien status. By example, Americans after the Boston Marathon attack did not first ask whether the perpetrators were citizens or aliens. Rather, they initially asked whether global terror was the real culprit behind the two known Chechen perpetrators, the Tsarnaev brothers. Only after it was determined that international terror organizations likely did not play a role, did attention then center on whether the Tsarnaevs were citizens, permanent residents, or alien nonresidents. The outcome would determine whether the Federal Bureau of Investigation (FBI) or National Security Agency (NSA) could have more aggressively monitored — and potentially stopped them — even in the absence of a clear nexus with international terrorism. This is because FISA, as amended by the PATRIOT Act, prescribes an exemption to governmental investigations of citizens and permanent residents acting pursuant to the First Amendment’s protections for free expression; there is no comparable exclusion for aliens exercising such rights. Specifically, the FBI may apply for an investigation directed toward “obtain[ing] foreign intelligence information not concerning a United States person or . . . protect[ing] against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.” In relying on a limited definition of “United States person” including only a citizen or lawful permanent resident, FISA draws an alienage-based distinction with regard to the Foreign Intelligence Surveillance Court’s (FISC) substantive ability to authorize monitoring. On the one hand, U.S. citizens and permanent residents are protected where their actions fall exclusively under the First Amendment’s guarantees of freedom of speech and press; to lose protection, their conduct must evidence completed, current, or imminent criminality. On the other hand, noncitizen, nonpermanent residents ostensibly do not receive these protections. The plight of the alien in the context of governmental surveillance is thus particularly fragile and leads to several lines of inquiry: Are aliens and U.S. persons equally entitled to constitutional safeguards, particularly with respect to due process and protections against unreasonable searches and seizures? Are First Amendment rights properly limited to U.S. persons, or are they essential to an alien’s liberty? Should aliens expect such rights where American citizens themselves are confronted with imminent acts of terror in their own homeland? Does this answer change if the danger is not perceived as imminent? In the absence of a FISA amendment that eliminates separate monitoring standards for U.S. persons and aliens, should not a “public monitoring defender” at least be appointed to minimize the potential for prosecutorial and judicial error by attending FISC proceedings on behalf of suspected targets? This Article concludes that such procedural safeguards are more effective at retaining America’s reputation as a beacon of liberty. Additionally, we should learn from our history of depriving blacks and Japanese Americans of civil liberties on national security grounds; we should thus apply monitoring orders aggressively but equally to aliens without succumbing to the easy temptation of depriving a vulnerable group of basic civil protections.