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The Inside Story of Why Congress Is Now Willing to Amend FISA:
Newsweek has the story here. The key news is that after the Administration started submitting TSP surveillance to the FISA court, one of the FISA judges objected to parts of it:
[A]t some point after the new program began, one of the FISA judges—who, by rotation, was assigned to review the program for periodic updates—concluded that some aspects of the warrantless eavesdropping program exceeded the NSA's authority under the Foreign Intelligence Surveillance Act, the basic 1978 law that governs eavesdropping of espionage and terrorist suspects, said the lawyer who had been briefed on the ruling. The judge refused to reauthorize the complete program in the way it had been previously approved by at least one earlier FISA judge, the lawyer said, adding that the secret decision was a "big deal" for the administration.
  What is the legal issue? The Los Angeles Times reports:
[O]fficials said the ruling's reach [affects] cases "where one end is foreign and you don't know where the other is" — meaning warrants would be required even when it was unclear whether communications were crossing the United States or involved a person in the United States.

One official said the issue centered on a ruling in which a FISA court judge rejected a government application for a "basket warrant" — a term that refers to court approval for surveillance activity encompassing multiple targets, rather than warrants issued on a case-by-case basis for surveillance of specific terrorism suspects.

"One FISA judge approved this, and then a second FISA judge didn't," the official said, speaking on condition of anonymity because the activities of the FISA court are classified.
  From what I can tell, the legal issue is how FISA applies when the government wants to monitor someone outside the United States whose communications happen to be routed through the United States through U.S. switches. And specifically, what to do when the government has no idea where the people are on the other end of that person's calls and e-mails, but they want to monitor from the U.S. switch. The problem, as I emphasized in my draft article Updating the Foreign Intelligence Surveillance Act, is that the government often won't know where people are or who they are -- and if the law requires them to know that, then how the law applies will be very hard to figure out.

  Specifically, the key legal issue here probably is the scope of 50 U.S.C. 1801(f)(2), which states that a FISA warrant is required if the government acquires "the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States." Under this statute, no FISA warrant is required so long as a communication is foreign to foreign. But what happens if no one knows if a communication is foreign to foreign?

  To pick an isolated example, imagine the government is monitoring Bad Guy #1 in Pakistan, outside the United States, and Bad Guy #1 gets 10 phone calls and 30 e-mails every day from lots of different anonymous phone numbers and e-mail addresses. Can the government assume that the calls and e-mails are from places other than the U.S. and monitor the calls without a FISA order? Or must the government presume that the calls and e-mails are from inside the U.S. unless proven otherwise? What kind of proof is sufficient either way?

  I gather the disagreement between the two FISA judges is what to do in this setting. Off the top of my head, the statute is probably vague enough that one judge could reasonably say that the unintended collection of information from a non-target that turns out to be in the U.S. is permitted, whereas another judge could reasonably say that the government needs to provide some kind of assurance first that no such collection is likely to occur. And depending on what kind of assurance the judge wants, that assurance could be a major shift in what kind of monitoring the government can conduct. And that presumably explains the recent Congressional move to amend FISA to clarify what should happen in these settings.

  Anyway, those are my tentative thoughts. As always, we don't know all the facts: I'm just trying to give you my best guess as to what is happening and why based on the few facts that have leaked out. I look forward to your comments.
Strick:
Interesting. It's obvious to everyone that in 1978 there were no cellphones or email. It's less obvious that all non-radio based communication was assumed to occur between two or more places connected by hardwire. Telephone companies literally billed phone numbers rather than customers, since customers could move from place to place, but the phone line and its number couldn't.

Now with number portablility and communication devices that can go anywhere with us, all that's changed.

The old mindset has been very difficult for the telecommunications companies to accept and adjust to. I can see how the law would take some time to adjust to it, too.
8.2.2007 12:43pm
MacGuffin:
The problem, as I emphasized in my draft article Updating the Foreign Intelligence Surveillance Act, is that the government often won't know where people are or who they are -- and if the law requires them to know that, then how the law applies will be very hard to figure out.

...

But what happens if
no one knows if a communication is foreign to foreign?

Come again? If the law requires something of someone before allowing that someone to do something else, how does that someone's lack of knowledge or ability to provide the required something negate the requirements of the law?

Isn't your intent really to question whether the law actually requires something, rather than to argue that ignorance and inability negate something that the law actually does require?
8.2.2007 12:43pm
EIDE_Interface (mail):
Sure, let's just follow the letter of the law while out throats get cut by Islamonazi terror.
8.2.2007 12:52pm
Anonymous Liberal (mail) (www):
It's probably worth noting that implicit in this secret ruling is a rejection of the Bush administration's (incredibly weak) legal justifications for circumventing FISA. Maybe we can finally close that sad chapter in our legal history.
8.2.2007 12:54pm
OrinKerr:
Mark Hamstra aka MacGuffin,

I'm having trouble identifying your argument. However, consider two points:

1) The criminal prohibition in the statute requires an "intentional" mens rea. If the acquisition is unintentional, there is no violation.

2) The chances that the people monitored are communiating with someone in the U.S. presumably is likely extremely low in the kind of setting in which the monitoring is occurring. So the question would be the ex ante precautions if any that must be taken just in case to avoid triggering some kind of possible civil remedy in case a communication ends up being with a person in the United States.
8.2.2007 12:57pm
MacGuffin:
EIDE,

I didn't say anything about what actions should be taken. I simply question how inability to comply with the requirements of the law changes what the law actually is.
8.2.2007 12:59pm
Steve:
I know I've seen the regs that govern the situation where a foreign intercept inadvertently ends up picking up communications with a U.S. person. They seemed reasonable to me. I'm not sure why there's suddenly a problem.
8.2.2007 1:04pm
Richard Aubrey (mail):
MacGuffin.

I think the point here is, instead, if the law requires something which is impossible, the law has a problem.
This bit of FISA strikes me as saying, metaphorically, don't get off the expressway unless you know the motel price is affordable, and, by the way, don't call them to find out.
Occasionally, a Ramada sign or Motel 6 sign will show the rates, but usually not.
What to do? Ignore your mother-in-law.

She, and, metaphorically, this part of FISA require ignoring. They did it to themselves.
8.2.2007 1:06pm
MacGuffin:
Orin,

Your two points speak to the question of what the law actually requires. They are not apposite. You didn't question what the law requires in your claim that I questioned. The premise of that claim was that "the law requires them to know that," and then you proceeded to offer what seems to be an argument that inability to satisfy that premised requirement of the law somehow changes how the law can be applied.

I may well agree with you that what the law requires is not completely clear. I may well agree that what the law requires needs to be changed. I may even agree that it may be necessary to operate outside the law in emergent circumstances -- at least until the law can be changed. What I don't see is how any of that justifies the position that inability to satisfy the clearly established (or hypothesized) requirements of a law changes how the law can be applied.
8.2.2007 1:13pm
OrinKerr:
MacGuffin,

I believe you are misreading the post. In any event, I don't think anyone is making the argument you think they are making.
8.2.2007 1:27pm
BobH (mail):
"Inconceivable!" "I do no think that word means what you think it means."

(Any time I get to quote from The Princess Bride, I take the opportunity to do so.)
8.2.2007 1:32pm
Crust (mail):
Richard Aubrey:
[T]his part of FISA require[s] ignoring. They did it to themselves.
Whatever happened to dura lex, sed lex? If there's a legitimate problem with the law (and it sounds like there may be), then the appropriate thing for the Executive to do is to convince Congress to change it, not to simply ignore it.

Given that the administration has apparently been violating the law -- and continues to assert the right to do so -- I am loathe to see the law loosened by amendment before the commit to following the law. That seems very basic to me. But if there is genuine urgency, it may make sense to do so with a short sunset provision. It is hard to judge if that's the case without knowing the classified details. Regardless, putting the measure under the supervision of the DoJ and our beloved Fredo rather than the FISC sounds like a supremely bad idea.
8.2.2007 1:34pm
M. Lederman (mail):
That's why they call it a "MacGuffin"!

P.S. -- On the "merits," I have a follow-up here, which is, I think, consisitent with Orin's take.
8.2.2007 1:36pm
Jake D.:
I gotta agree with EIDE_Interface -- Democrats like FDR or Harry Truman would never have put up with this FISA bullshit -- where are THOSE kind of Democrats when you need 'em?
8.2.2007 1:36pm
Salixquercus (mail):
Why is there a need to debate these procedural (not operational) details in secret? We already have a secret court; now we need secret laws?

You can't convince me a free and open society can only defend itself from cave-dwellers by becoming less free and open.
8.2.2007 1:37pm
MacGuffin:
Orin,

I believe you are misreading the post. Your original post clearly contains statements of the form: If the law requires something and those requirements cannot be met in some instances, then how the law applies will be very hard to figure out.

From the rest of your posting in this thread I take it that you didn't really intend to write that, and that your real intent is to question whether the law really does or should require that the government know where people are or who they are before engaging in certain forms of electronic intelligence gathering. Those are certainly worthwhile matters for consideration. It just wasn't clear to me that considering those matters was your only intent, or whether you were also advancing what I take to be a very different and dangerous notion of the requirements and application of the law.
8.2.2007 1:41pm
Just an Observer:
I gather that the Democratic legislative proposal is to authorize the FISC court to issue such "basket warrants" in the special case of a foreign-to-unknown scenario, subject to some restrictions, while the administration wants authority to proceed without court approval. But the government, by the terms posited in the scenario, doesn't know any more facts than it could tell the court about the location.

So it comes down to who decides, and under what restrictions, safeguards, and minimization requirements. Apparently that process is what is being negotiated in the legislation. Both sides say that in principle they want to facilitate this surveillance. That seems to imply that no matter who decides, there would be an initial presumption in favor of allowing surveillance to commence.

The foreign-to-unknown scenario sounds rather narrow on its face, but Orin seems to believe that it actually could apply to a wide range of communications because of the state of networking technology. If this is the case, then there must be some permanent regime of safeguards enacted.

(It does seem to me that this particular scenario, where the unknown factor is location or basic identity, is different from the question more often debated, which is over the standard of probable cause that the person surveilled is actually an agent of a foreign power.)

I will make two general observations about the political background of all this. First, I am glad to see that both the administration and Congress finally seem to be seeking a good-faith solution with attenuated partisanship. Second, as far as we know the administration did not revert to extralegal means and bypass the FISA courts and Congress, and that's a good thing.

As a footnote, I wonder why the government did not appeal the adverse ruling to the Foreign Intelligence Court of Review. Perhaps the original, creative court order by a FISC judge really did push the legal envelope too far and DOJ did not expect to win on appeal. I can't see where current law gives the FISA courts jurisdiction to decide this question and issue such an order.
8.2.2007 1:55pm
Nessuno:
I think MacGuffin has misread the statute Orin is duscussing, 50 U.S.C. 1801(f)(2), or at least he misead Orin's description of the statute.

It seems as if MacG is reading the statute to prohibit foreign-foreign wiretaps unless the gov gets a FISA warrant. And his argument seems to be that if the government can't prove who the parties are, then it shouldn't be able to get the warrant.

Unfortunately for MacGuffin, that's not how the statute reads at all. Foreign-foreign wire taps do NOT require a FISA warrant at all. The controversy Orin is pointing out is conflict between FISA judges on a Foreign-Unknown conversation. Must the government assume all Unknown parties are in the US and seek out a FISA warrant?

Anyway, I guess reasonable minds could differ on the answer, but the straight-forward approach would seem to be that unless the gov was deliberatly seeking to not know the second party, then the statute doesn't apply. The gov would be free to tap away.

Having to assume every blocked number--or god forbid, satellite phones which are so often used in Afghanistan and Pakistan-- might originate in the US would absolutely cripple the government's ability to obtain current and relevant intelligence.

You know, I understand that some people doubt the existence of the whole "Global War on Terrorism" concept, but why on earth do some judges and politicians act as if we aren't at war with specific terrorists (ie Al Qaeda or other militants in Pakistan and elsewhere)?

Requiring the NSA or other agencies to get a warrant (even a FISA warrant) in order to obtain military intelligence is suicidal lunacy.
8.2.2007 1:56pm
ejo:
the cave dwellers are smart enough to use sophisticated communications. they are also bright enough to watch CNN or read the NYT as they disclose operational secrets (ie. yesterday's Reuter? disclosure that a non-existent rescue operation was underway). The other side loves when you underestimate them-we will be discussing this situation into our graves if we aren't careful.
8.2.2007 1:56pm
MacGuffin:
I think MacGuffin has misread the statute Orin is duscussing

I think I didn't endeavor to provide any independent reading of the statute.

My intent was not to discuss what the law actually does require, but rather to question the strange seeming conclusion that Orin drew from the premises that the law did, indeed, require something and that those requirements could not be met in some instances. I take it that such was not his intent, and I am in much better agreement with his discussion of the nature of the law's actual and somewhat uncertain requirements.
8.2.2007 2:09pm
Salixquercus (mail):
ejo, quit shrinking and come out of the corner. 100 Americans are killed in a trucking-related accident per week. Do you change pants every time you spot an 18-wheeler. Over-estimating these people is far more dangerous.
8.2.2007 2:13pm
AntonK (mail):
Newsweek "The Koran in the Toilet" Magazine.

That's quite a source, Orin!
8.2.2007 2:23pm
Anonymous Liberal (mail) (www):
Here is some relevant context from the New York Times December 24, 2005 article:

Several officials said that after President Bush's order authorizing the N.S.A. program, senior government officials arranged with officials of some of the nation's largest telecommunications companies to gain access to switches that act as gateways at the borders between the United States' communications networks and international networks. The identities of the corporations involved could not be determined.

The switches are some of the main arteries for moving voice and some Internet traffic into and out of the United States, and, with the globalization of the telecommunications industry in recent years, many international-to-international calls are also routed through such American switches.

One outside expert on communications privacy who previously worked at the N.S.A. said that to exploit its technological capabilities, the American government had in the last few years been quietly encouraging the telecommunications industry to increase the amount of international traffic that is routed through American-based switches.

The growth of that transit traffic had become a major issue for the intelligence community, officials say, because it had not been fully addressed by 1970's-era laws and regulations governing the N.S.A. Now that foreign calls were being routed through switches on American soil, some judges and law enforcement officials regarded eavesdropping on those calls as a possible violation of those decades-old restrictions, including the Foreign Intelligence Surveillance Act, which requires court-approved warrants for domestic surveillance.

Historically, the American intelligence community has had close relationships with many communications and computer firms and related technical industries. But the N.S.A.'s backdoor access to major telecommunications switches on American soil with the cooperation of major corporations represents a significant expansion of the agency's operational capability, according to current and former government officials.

Phil Karn, a computer engineer and technology expert at a major West Coast telecommunications company, said access to such switches would be significant. "If the government is gaining access to the switches like this, what you're really talking about is the capability of an enormous vacuum operation to sweep up data," he said.
8.2.2007 2:31pm
cathyf:
I have a very basic question that is confusing me... According to the statute, what is "foreign intelligence"? Is it only spying on foreign governments and terrorists?

Suppose the NSA is monitoring conversations of drug lords in Columbia. Do they have to have FISA warrants? What if they are doing it as part of a joint operation with Columbian police, and the Columbians have a warrant from a Columbian court? What if Columbia's law doesn't require warrants for wiretapping? Does FISA really presume to control foreign law-enforcement conducted in foreign facilities?
8.2.2007 2:31pm
MacGuffin:
Is John Boehner on FOX News a good enough source for you, AntonK?
"There's been a ruling, over the last four or five months, that prohibits the ability of our intelligence services and our counterintelligence people from listening in to two terrorists in other parts of the world where the communication could come through the United States."
8.2.2007 2:32pm
Bruce Hayden (mail) (www):
I find it interesting that the debate has moved from purely domestic, through international, and now into likely purely foreign communications. When this first came up, we were debating whether or not the President's Article II powers allowed him to ignore FISA for international calls, and some were even worried about purely domestic communications (though realistically, this was never a real issue, but a lot of people made the mistake of equating domestic and international wiretapping laws - including one particular Federal District Court judge). But now we find that the Administration has retreated so far here that they are now trying to get the law changed so that they don't have to get warrants for communications that are likely purely foreign, but have some chance of being international (i.e. with one end in the U.S.).

Let me reiterate the point above. FISA does not apply if both ends of the conversation are foreign, even if intercepted in the U.S. It is only when you have someone in this country at one end of the conversation that it applies. If intercepted in this country, anyone here will do, but if intercepted elsewhere, they have to be a U.S. Person (i.e. here legally). And if both ends are in this country, most often FISA doesn't apply either, but rather Title II and the 4th Amdt. are more relevant.
8.2.2007 2:50pm
r78:

Sure, let's just follow the letter of the law while out throats get cut by Islamonazi terror.


EIDE - you might want to keep in mind that the Minnesota Department of Highways has killed more people on American soil in the past 5 years than any Islamonazis.
8.2.2007 2:51pm
Oren (mail):

Over-estimating these people is far more dangerous.


QFT
8.2.2007 2:53pm
ejo:
I imagine more people might have died from old age between 1939 and 1945 than in combat in WWII-I guess we should have just kicked back and relaxed in that time frame, huh? you have to look at the goals and reach of the enemy-do you think they are stopping or slowing their plans while Congress makes debating points to get more contributions from Kos?
8.2.2007 3:00pm
Jake D.:
Bruce Hayden:

Mohammed Atta was in the U.S. "legally" before 9/11, right?
8.2.2007 3:01pm
Richard Aubrey (mail):
Crust.

My point was that making a law which simply cannot be followed is a bad idea.

You'd have to know where the other end of the call was before you were legally entitled to know where the other end of the call was. That's stupid.

So there are two reactions, prior to getting the thing changed. One is to ignore it. The other is to cease any activity in which this might come up.

Now, let me say I defer to no man in my contempt for Congress. However, I believe there are enough grownups there to make a law say what they mean to have happen.
8.2.2007 3:04pm
Jake D.:
r78:

You'd better believe it -- George W. Bush: Saving Your Ass, Whether You Like It or Not!
8.2.2007 3:04pm
Crust (mail):
Spencer Ackerman at TPMmuckraker has an excellent rundown of the issues being negotiated.
8.2.2007 3:23pm
cboldt (mail) (www):
I see two effect of the proposed law.

One is to define as NOT electronic surveillance, when ONE end of the communications is outside the United States. This would dispose of the speculated FISA court objection noted in Isikoff's article.

The other is to provide the force of court order to recalcitrant communications carriers, and otherwise seeing to it that all carriers (AT&T, Qwest, etc.) be under either executive, or if necessary court order to acquire said communications. These carriers are also granted immunity from suit (get rid of a good handful of lawsuits), and are to be paid from federal coffers for the hardware, software and manpower required to acquire and forward the communications pursuant to government order.
8.2.2007 3:35pm
SteveW:
Do we know how often FISA judges review the program? If so, is the frequency of such reviews consistent with the contention that only two judges have reviewed the program?
8.2.2007 3:38pm
cboldt (mail) (www):
I don't know if the negotiated proposal will have immunity, but S.1927 (the administration version) seems to:

"Notwithstanding any other law, no cause of action shall lie in any court against any person for providing any information, facilities, or assistance in accordance with a directive under this section."


As for being compensated ...

"The Government shall compensate, at the prevailing rate, a person for providing information, facilities, or assistance pursuant to subsection (e).

"(e)(1)immediately provide the Government with all information, facilities, and assistance necessary to accomplish the acquisition in such a manner as will protect the secrecy of the acquisition and produce a minimum of interference with the services that such person is providing to the target ..."
8.2.2007 3:42pm
Just an Observer:
Just to be clear, Orin, is it your understanding that this narrow scenario of foreign-to-unknown communications does not affect the foreign-to-domestic interceptions that were included in DOJ's announcement of the original FISC court order? Here is how Gonzales described that on Jan. 18:

Court orders issued last week by a Judge of the Foreign Intelligence Surveillance Court will enable the government to conduct electronic surveillance -- very specifically, surveillance into or out of the United States where there is probable cause to believe that one of the communicants is a member or agent of al Qaeda or an associated terrorist organization -- subject to the approval of the FISA Court.


In other words, are those court orders — which were announced as a replacement for the discontinued TSP — still intact?

Or do you think the set of communications at issue today actually overlaps with, or is a subset of, the set of communications Gonzales described?
8.2.2007 4:15pm
cboldt (mail):
The proposed language isn't limited to terrorists ... it recites "surveillance directed at a person reasonably believed to be located outside of the United States"

There is another provision that may be directed to limit what a court may require in the way of specific allegations necessary to support a finding that the surveillance is within the constitution even though it is undertaken without a warrant.

(b) A certification under subsection (a) is not required to identify the specific facilities, places, premises, or property at which the acquisition of foreign intelligence information will be directed.


Has anybody seen the DEMs counteroffer to the administration's (McConnell/Bond) S.1927?
8.2.2007 4:28pm
Temp Guest (mail):
This is the result of a far larger problem: The enormous size and complexity of the USC (forget the CFR!). It is extraordinarily difficult to amend the law or add new laws without creating contradictions and ambiguities. Even persons intimately familiar with specific sections of the USC, e.g., congressional staffers specializing in intelligence have difficulty tracking their areas of concern. Add to this bills that are written as editing instructions and confusion becomes inevitavble.

I was in Washington when the PATRIOT ACT was being cobbled together and had some very peripheral involvement providing information to Congress. I also got a closer look at how laws are put together these days and, quite frankly, it scared the hell out of me. No one really had a complete grasp of how the PATRIOT ACT and FISA would interact. I doubt anyone currently has an idea of how they do.

I don't think the Executive is making power grabs nor do I think the Courts or Congress are trying to thwart the Executive from protecting the country. The law is such a jumble that these contretemps are inevitable. Maybe we need a new and non-despotic Justinian to reorganize the whole USC mess, get rid of the clutter, and rationalize what remains.
8.2.2007 5:06pm
wep (mail):
Many talking heads imply it is quite easy to get a FISA warrant, yet I understand on good authority that the FISA application is just as burdensome as your run-of-the-mill organized crime warrant. It requires at least days, if not a week or more, of preparation.

Scenario:
Cave Dweller #1 somewhere in the Stans speaks via sat/cell to CD#2 in Lebanon about upcoming attacks in New York and London (this call involved no US switches) and indicates he is about to give "Execute" orders both to NYC Dweller and London Dweller. All commentators concede that the CD#1 to CD#2 call may be intercepted without warrant. Do all or some of you say that neither of CD#1's follow-up calls to NYC and London, the latter only involving a switch within the US, may be the subject of NSA eavesdropping without a FISA warrant?

Talk about fighting a war with one arm tied behind your back!
8.2.2007 5:17pm
Jake D.:
Hopefully, the "non-despotic Justinian" would at least realize we are in a long war against terrorists. For the rest of you who have forgotten (from Bush's first speech to Congress after 9/11):

"Americans are asking: How will we fight and win this war? We will direct every resource at our command -- every means of diplomacy, every tool of intelligence, every instrument of law enforcement, every financial influence, and every necessary weapon of war -- to the disruption and to the defeat of the global terror network.

This war will not be like the war against Iraq a decade ago, with a decisive liberation of territory and a swift conclusion. It will not look like the air war above Kosovo two years ago, where no ground troops were used and not a single American was lost in combat.

Our response involves far more than instant retaliation and isolated strikes. Americans should not expect one battle, but a lengthy campaign, unlike any other we have ever seen. It may include dramatic strikes, visible on TV, and covert operations, secret even in success. We will starve terrorists of funding, turn them one against another, drive them from place to place, until there is no refuge or no rest. And we will pursue nations that provide aid or safe haven to terrorism . . ."
8.2.2007 5:21pm
LM (mail):
Orin,

The Inside Story of Why Congress Is Now Willing to Amend FISA [my emphasis]

The title of your post implies that Congress has until now resisted amending FISA. During the kerfuffle that followed the disclosure of the domestic surveillance program, didn't Specter, Leahy et al complain that they were willing to amend FISA, but the White House said it wasn't necessary?
8.2.2007 5:38pm
Bart (mail):
Even in a court with rotating judges, I would have assumed that prior decisions made by the FISC would be binding on subsequent rotating judges otherwise each judge can keep changing the rules for obtaining warrants. For example, imagine Judge A issues a series of warrants for the FBI to conduct surveillance on a Mafia family, then Judge A goes on vacation and is replaced for a couple weeks by Judge B, who revisits the original decision to grant warrants and revokes half of them. How can you possibly run a surveillance operation under those conditions?

Apart from the fact that Congress has no Article I power to direct executive foreign intelligence gathering by requiring warrants, the practical reason the President did not submit the TSP to the FISC was because the NSA is unlikely to have individual probable cause prior to conducting its surveillance on likely al Qaeda targets. Rather, NSA is performing the surveillance to identify enemy agents and thus develop probable cause to move on them militarily or with criminal law enforcement. Thus, it would be very difficult if not impossible to obtain standard warrants from the FISC to conduct such surveillance.

It appears that Justice conducted lengthy negotiations with one or more prior FISC judges coming to an agreement that the President would submit the TSP to FISC supervision if foreign target's communications could be intercepted without a FISC warrant in US controlled telecom hubs regardless of the destination of the communication and "basket warrants" covering multiple targets were approved for large portions of the rest of the program - none of which appears to require individualized probable cause. However, despite the fact that the President kept his part of the bargain by submitting the TSP to the FISC, a subsequent FISC judge changed the rules and crippled the NSA intelligence gathering.

The President never should have submitted the TSP or any other foreign intelligence gathering (as opposed to criminal investigation) to the FISC. Article II grants the President CiC powers because you simply cannot have 400+ CiCs in Congress and the courts making these decisions. You have one commander, not a committee. While crippling our foreign intelligence gathering in this way is exceedingly foolish in peacetime, it is madness during war.
8.2.2007 5:52pm
ejo:
but, it is just the type of crippling that we are getting-after all, we are not really in a war, no one is trying to kill us or harm america and more Americans died from food poisioning than in terrorist attacks last year.
8.2.2007 6:05pm
Bart (mail):
ejo:


but, it is just the type of crippling that we are getting-after all, we are not really in a war, no one is trying to kill us or harm america and more Americans died from food poisioning than in terrorist attacks last year.


The reason for that outstanding result is that we are engaging the enemy overseas and arresting others here based on intelligence gathering.

Those countries who have done less well defending their countries from terrorists are suffering tens of thousands of casualties each year from terrorist attacks.

Intelligence gathering is job one when fighting an asymmetrical war where the enemy dresses as civilians and routinely violates every law of war in order to murder our citizens.
8.2.2007 6:17pm
cathyf:
Just to be clear, Orin, is it your understanding that this narrow scenario of foreign-to-unknown communications does not affect the foreign-to-domestic interceptions that were included in DOJ's announcement of the original FISC court order? Here is how Gonzales described that on Jan. 18:
Court orders issued last week by a Judge of the Foreign Intelligence Surveillance Court will enable the government to conduct electronic surveillance -- very specifically, surveillance into or out of the United States where there is probable cause to believe that one of the communicants is a member or agent of al Qaeda or an associated terrorist organization -- subject to the approval of the FISA Court.
I don't see that at all -- under current technology, a call "into or out of the United States where there is probable cause to believe that one of the communicants is a member or agent of al Qaeda or an associated terrorist organization" is a foreign-to-unknown communication at the beginning of the surveillance, and then they have to actually do the surveillance to find out whether it is a foreign-to-foreign communication or a foreign-to-US communication. Because both foreign-to-foreign and foreign-to-US calls go through the same switches.

Sort of like how 50 years ago when they would get a warrant to wiretap the local mafia chieftain, they didn't actually know until they actually listened to a particular call whether it was a mafia-to-mafia call or a mafia-to-innocent-3rd-party call.

I'm really curious as to what sort of practices run-of-the-mill law-enforcement warrants allow, because I think that you have the same sort of problem. In the old days, a wiretap on the mafia chieftain's house involved physically connecting to the wire coming out of his house. Now, it is done in the telephone company offices. I suspect that the technological limitations are similar -- they actually have to do at least minimal surveillance of every call to/from a number with the same prefix as the number in the warrant and then throw away the calls not involving the number in the warrant.
8.2.2007 6:30pm
cboldt (mail):
WH position in November 2006 was justification of TSP based on "inherent authority" and/or AUMF constitutes statutory grant under FISA. If one searches WH material for the string "FISA", these are some of the (48) hits ...

Vice President - Nov. 17, 2006
May 2006 position was that discussions of modifying FISA to accomodate the TSP was premature

January 2007 rational for putting TSP under FISA Court - I can't make sense of the answer(s) here, Tony Snow seems to be rambling. I'm sure he knows exactly what he means. Then 3 months elapses before another FISA-related comment.
May 2007 the administration is wanting to stifle suits against carriers, the 66 page proposed FISA modernization act is promulgated.
May 15, 2007 and the press is focused on Gonzales statements, not the substance of FISA as it relates to TSP

The next comments are in July 2007. The issue was totally off the radar from April to late July.
8.2.2007 6:39pm
Jake D.:
Off of who's radar, CBoldt?
8.2.2007 6:44pm
cboldt (mail):
The topic of FISA revision wasn't mentioned by the WH or raised in a press briefing in various month-long interims.
Likewise, not much chatter on the subject in the Congressional Record in all of 2007, and what chatter is present there coincides with January, April, July, and "beat up Gonzales"
8.2.2007 7:01pm
Jake D.:
Why would the White House want to bring it up? I think they are content working behind the scenes, so the enemy does not find out what holes remain in our spying efforts. It's certainly not up to the White House to bring up things you think the press corps should be asking about.
8.2.2007 7:08pm
Just an Observer:
cathyf,

What makes you think that once the NSA does the surveillance, the location of the parties will be evident?

As I understand the problem at hand here, from Orin's article and the LA Times story, the geographic location of one terminus of the communication is not discernable at the switch from the header/metatdata. As for content, the body of phone calls and emails typically does not reveal geography. (I seldom say, "Here I am in the USA" in mine.)
8.2.2007 7:34pm
cboldt (mail):
Your guess is as good as mine why the White House wanted to bring this up now. If they wanted to work behind the scnes, it sure doesn't make sense to make FISA the subjuect of the Saturday radio address, etc.

I agree with you, better left under the radar. I'm puzzled, a bit, at the backing off from the "inherent powers" and "for the purpose of foreign intelligence gathering" arguments, as both of those have deep support in the judiciary, completely independnet from legislative pronouncement.
8.2.2007 9:51pm
Jake D.:
No, obviously, the White House is NOW making a big public push to get this done before the recess.

P.S. for all of you upset with Nancy Pelosi for taking impeachment "off the table", I just got this encouraging e-mail:

"Note: For people who have been asking, my formal announcement as a candidate against Nancy Pelosi has been pushed back to August 9 due to logistical concerns. www.CindyForCongress.org should be going live soon with more details and a way to donate to my campaign."

RUN, CINDY, RUN!!!
8.2.2007 9:57pm
Just an Observer:
The Washington Post today gets around to publishing its version of the story about the FISA court ruling.

The story is a little confusing in context, in that it never mentions the detail -- reported by Newsweek and the LA Times -- about a second FISA judge refusing to renew a court order that another FISA judge had approved. Reading the Post story, one would think all this involved the original FISA court order last January.

That confusion is magnified by the statements by a spokesman for John Boehner, the Republican leader who first blabbed news of the FISA court rejection to Fox News. Boehner's spokesman, spinning to cover the apparent breach of secrecy by his boss, claimed Boehner's remarks referred only to the public announcement by Gonzales of the original court orders in January -- which did not announce a rejection by the court, but an approval. It makes no sense.

(BTW, speaking of journalistic catch-up, has the New York Times been asleep all week? Not only has the NYT never reported on the court decision, it has had practically no coverage at all of the open legislative debate over amending FISA in the next few days.)
8.3.2007 10:26am
Kamron (mail):
Nessuno,
You know, I understand that some people doubt the existence of the whole "Global War on Terrorism" concept, but why on earth do some judges and politicians act as if we aren't at war with specific terrorists (ie Al Qaeda or other militants in Pakistan and elsewhere)?

Read the 2nd-to-last paragraph quotes from the LA Times. If we have evidence that some specific people are involved in terrorism it's easy to get a FISA warrant, and all of this goes away.
It's only a problem where the government apparently wants to listen in on second-order or third-order suspects. That is, when the want to cast a wide net, beyond those they already suspect are terrorists.

Bruce,
But now we find that the Administration has retreated so far here that they are now trying to get the law changed so that they don't have to get warrants for communications that are likely purely foreign, but have some chance of being international (i.e. with one end in the U.S.).

Be suspicious of power- if the government can eavesdrop on all foreign-unknown communications because they don't know the status of the unknown, that's carte blanche to examine virtually all foreign-unknown communications (since the unknown isn't resolved until after the communication is examined).
Since the idea of domestic-domestic tapping was never really the issue (at least, under FISA, as you point out), being able to tap virtually all foreign-unknown communications is as much progress as the administration could've hoped to make.

Jake D,
Mohammed Atta was in the U.S. "legally" before 9/11, right?

Yes, and FISA will grant warrants with a bare minimum of evidence that would've allowed surveilance of him. If we'd suspected he was a terrorist, we could've taken the origin of our suspicions to the FISA court and monitored his communications.
That is, the system works exactly as it's supposed to. But it can't protect us against threats we don't know about.
We could monitor *all* communications, but I would say that this cure is far worse than the disease. ejo will probably endorse this solution once he gets back from changing his underwear again.

wep,

Many talking heads imply it is quite easy to get a FISA warrant, yet I understand on good authority that the FISA application is just as burdensome as your run-of-the-mill organized crime warrant. It requires at least days, if not a week or more, of preparation.
Understand that the success rate of warrant applications prior to Bush was iirc well over 99%.
Understand that, in your scenario, the AG can authorize taps on his own authority and retroactively go to the FISA court within 72 hours, and that based on the evidence of call #1 they would obviously grant a warrant after the fact.
Undersand that warrants are not a serious impediment to police work in the US- we're able to difuse all manner of criminal conspiracies working within a much more restrictive warrant-based framework.
Understand that you ought not get all of your information from FOX News, and certainly ought not refer to them as "good authority".

Talk about fighting a war with one arm tied behind your back!

That is indeed a good analogy to your attempt to engage in reasoned debate.
8.3.2007 3:56pm
Just an Observer:
My optimism about bipartisanship and good faith, which I expressed upthread yesterday, apparently was wrong. From Congressional Quarterly today: Negotiations on Surveillance End Without Deal (h/t TPMmuckraker)
8.3.2007 4:16pm
zuch (mail) (www):
Nessuno:

Having to assume every blocked number--or god forbid, satellite phones which are so often used in Afghanistan and Pakistan-- might originate in the US would absolutely cripple the government's ability to obtain current and relevant intelligence.

"Blocked" numbers may be invisible to the caller or the called party ("Presentation restricted", "Caller unknown", "Unknown number", etc.) but that hardly means these numbers are invisible to the telco switches. In fact, they are most assuredly not. The switching messages convey all the relevant signalling information, including ClgPA, CldPA, ANI, CBN, and/or where relevant, MDN, MIN, MSISDN, and ESN (electronic serial number). Location of mobile phones (and satellite phones) is available as "serving system" messages or "system signalling" messages, and is often logged (and this is what is used to 'find' a cellular customer who's gone missing in emergency situations, as well as provide location information automatically for E911 calls).

For telephony, thanks in part to E911 (and commercial location-based-services) requirements, the solution to physical location is pretty much in hand.

Cheers,
8.9.2007 3:02pm