Who's Checking?: Taking a Look at Recently Enacted Foreign Intelligence Surveillance Laws in the United States and Zimbabwe and Their Impact on the Separation of Powers

WHO'S CHECKING?: TAKING A LOOK AT RECENTLY ENACTED FOREIGN INTELLIGENCE SURVEILLANCE LAWS IN THE UNITED STATES AND ZIMBABWE AND THEIR IMPACT ON THE SEPARATION OF POWERS Andrew M O'Connell* TABLE OF CONTENTS I. INTRODUCTION ......................................... II. BACKGROUND: EVENTS LEADING TO THE FISA AMENDMENTS ACT OF 2008 (FAA) AND THE INTERCEPTION OF COMMUNICATIONS ACT (ICA) ............................. A. The United States .................................... B. Zim babwe .......................................... C. ConstitutionalHistory and Structure of the United States ..... D. ConstitutionalHistory and Structure of Zimbabwe .......... II. THE FAA AND THE ICA .................................. A. The Basics of the FAA and the ICA ...................... B. Common Characteristicsof the FAA and ICA that Limit the Surveillance Power ........................... C. Common Shortcomings of the FAA and ICA ............... D. Limits Placedon the Surveillance Power Through Judicialand Legislative Checks andBalances .............. 1. JudicialChecks in the FAA and ICA ................... 2. Legislative Checks in the FAA andICA ................ 556 559 559 564 570 571 573 573 576 577 579 579 580 IV. POSSIBILITIES FOR THE FUTURE ............................ 582 A. Zimbabwe .......................................... B. The United States .................................... 582 584 CONCLUSION ........................................... 586 V. * J.D., University of Georgia School of Law, 2009; B.A., University of Georgia, 2005. I would like to thank the editors of the GeorgiaJournalof Internationaland ComparativeLaw for their excellent work. Special thanks to my family and my fianc~e, Erin Murray, for their love and encouragement. GA. J. INT'L & COMP. L. [Vol. 37:555 I. INTRODUCTION The accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny.' A lot more information is going to pass through government hands, and most of that is going to be about people who turn out to be innocent or irrelevant.2 The terrorist attacks of September 11,2001 prompted swift responses from the Executive and Legislative branches of the United States government. On September 18, 2001, President George W. Bush signed the Authorization for Use of Military Force (AUMF), which gives the President the authority "to use all necessary and appropriate force" against any country or person who was involved in the terrorist attacks.3 Two days later in a speech before a joint session of Congress, the President declared that the United States was engaged in a struggle against international terrorism and informed the country of his intention to confront Al-Qaeda in Afghanistan. 4 In October 2002, Congress further authorized the President to "defend the national security of the United States against the continuing threat posed by Iraq,"5 which led to the invasion of Iraq in March 2003.6 The resolutions authorizing the use of force in Afghanistan and Iraq were not the only resources the Executive Branch was given by the Legislative Branch to engage in the new War on Terror. On October 26, 2001, just fortythree days after the attacks, the USA PATRIOT Act (PATRIOT Act) was signed into law by President Bush.7 The PATRIOT Act expanded the THiE FEDERALIST No. 47, at 261 (James Madison) (J.R. Pole ed., 2005). 2 Richard B. Schmitt, Spying Up, but TerrorCases Drop, L.A. TIMEs, May 12, 2008, at 1 (quoting Michael Woods, former head ofthe Federal Bureau of Investigation security law unit). ' Authorization for Use ofMilitary Force, Pub. L. No. 107-40, § 2(a), 115 Stat. 224 (2001). 4 147 CONG. REc. S9553-04 (Sept. 20, 2001) (statement of President Bush). ' Authorization for Use of Military Force Against Iraq Resolution of 2002, Pub. L. No. 107-243, § 3(a)(1), 116 Stat. 1498 (2002). 6 David E. Sanger & John F. Bums, Bush OrdersStartof War on Iraq;Missiles Apparently Miss Hussein, N.Y. TIMES, Mar. 20, 2003, at Al. ' Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act) Act, Pub. L. No. 107-56, 115 Stat. 272 (2001). 2009] WHO'S CHECKING? Executive's authority to collect material relating to foreign intelligence information and expanded the scope of the Foreign Intelligence Surveillance Act of 1978 (FISA) to include suspected terrorists.8 In the summer of 2007, Congress granted the Executive Branch additional authority to engage in the War on Terror by its passage of the Protect America Act of 2007 (PAA). 9 After some controversy over the renewal of the PAA and its temporary lapse, Congress enacted and President Bush signed into law the FISA Amendments Act of 2008 (FAA), which broadened the Executive Branch's wiretapping capabilities.'" The expansion of Executive power in the field of national security surveillance in the United States can be analyzed in conjunction with the recent history of Zimbabwe, where a similar chain of events has been unfolding. On August 3, 2007, President Robert Mugabe of Zimbabwe signed the Interception of Communications Act (ICA) into law." The new law empowers the Executive Branch of Zimbabwe to intercept communications "concerning an actual threat to the national security" of Zimbabwe. 12 Its passage continues a long series of oppressive measures initiated by the Executive Branch of Zimbabwe and acceded to by Parliament since 2000.13 However, the impetus for Zimbabwe's changes in its foreign intelligence surveillance laws was not the threat of international terrorism but growing economic insecurity, which many critics believe is the result of extreme land ownership reforms initiated by the Executive Branch of Zimbabwe's government. 4 In 2000, President 8 Id. §§ 207, 214, 225,412. 9 Protect America Act of 2007, Pub. L. No. 110-55, 121 Stat. 552 (2007) (to be codified at 50 U.S.C. § 1805). 10 Eric Lichtblau, Senate Approves Bill to Broaden Wiretap Powers, N.Y. TIMES, July 10, 2008, at Al. The PATRIOT Act was renewed in March 2006. Sheryl Gay Stolberg, Senate Passes Legislation to Renew PatriotAct, N.Y. TIMES, Mar. 3, 2006, at A14. " Terrorism, Communications Bills Now Law, HERALD (Harare, Zimbabwe), Aug. 4, 2007, availableat http://allafrica.com/stories/200708040075.html. Allafrica.com requires a subscription. Copies of material cited to in the Note from this source are also on file with the author. 12 Interception of Communications Act, pt. III, § 6(1)(b) (2007) (Zimb.), availableat http:// kubatana.net/docs/legisl/ica070803.pdf. " See Michael Wines, Allies Not Likely to Push Mugabe to Change, N.Y. TIMES, Aug. 17, 2007, at A12 (noting comments from other African leaders comparing Zimbabwe to a "sinking Titanic" and demanding Mugabe "to restore political and economic freedoms..."); see also CRAIG RICHARDSON, THE COLLAPSE OF ZIMBABWE I (...truncated)