Losing Tools in the Intelligence Toolbox: Predicting Future Changes to FISA to Protect Future National Security Prosecutions

Abstract

National Security Professionals charged with protecting the country from harm must feel like an auto mechanic who can’t find his favorite wrench. Foreign intelligence surveillance tools that were once considered lawful and reliable ways to gather information are being lost to executive, judicial and legislative action. Any information gathered using these lost tools may not be admissible in a criminal case, even though the methods were considered lawful when the information was acquired. How can those in the intelligence community determine which tools are at risk of being removed from the toolbox and which will be an enduring lawful means to build solid intelligence for the future?

This article will discuss an approach to scrutinize our current intelligence gathering tools and determine which ones may be lost. Intelligence professionals who are trying to build criminal prosecutions using national security tools can use this framework to assess which intelligence tools may disappear and which may endure.

Keywords: FISA, Intelligence, National Security, Fourth Amendment