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My Take on the New FISA Amendment:
Last night the House of Representatives approved a temporary amendment to the Foreign Intelligence Surveillance Act that passed the Senate on Friday night. President Bush will sign it shortly. The language is here. On the merits, I think this legislation on the whole seems relatively well done. I would have tinkered with it in some ways, and there are parts I'm not sure about, but the basic structure seems pretty good. Given that this is a 6-month temporary fix, not a permanent change, I tend to support it.

  Of course, we're talking about policy here, not law, and different people will have different reactions based on their policy preferences and sense of the threat. Some will think the new legislation is tepid; others will think it signals the coming of the National Surveillance State. Some people think Al Qaeda is about to nuke America, and others think Al Qaeda poses no threat at all. For the most part, our reactions to new surveillance laws hinge on where we fall on those two lines. My own preferences and sense of the threat are both somewhere roughly in the middle (or so I think -- it's hard to guess exactly what the distribution is). Based on those preferences and sense of the threat, as well as my initial read of the legislation, I think this legislation on the merits is relatively well done.

  So what does the legislation do? As I see it, there are three key parts of the new legislation. The first change is a clarification that FISA warrants are not needed for "surveillance directed at a person reasonably believed to be located outside of the United States." That is, if the government is monitoring someone outside the United States from a telecom switch in the U.S., it can listen in on the person's calls and read their e-mails without obtaining a FISA warrant first. The Fourth Amendment may still require reasonableness in this setting when one or more people on the call of e-mail are inside the U.S. or are United States citizens, but there is no statutory warrant requirement.

  The second change is a requirement of a formal authorization of a program to do such monitoring. The Director of National Intelligence and the AG have to approve a program (for up to one year) reasonably designed to be limited to the monitoring of persons outside the United States. Those procedures have to be submitted to the FISA court, which then reviews whether the Executive's conclusion that the procedures are reasonably designed to only pick up the communications of people reasonably believed to be outside the U.S. is "clearly erroneous." If the conclusion is clearly erroneous, the court sends them back and tells the Executive to try again. The government can also appeal that determination to the FISA Court of Review and if needed the Supreme Court. I'm not exactly sure, but my sense is that this is a one-size-fits-all order; that is, the one authorization covers all the providers.

  The third change -- and probably the most important, albeit something that a lot of people will overlook -- is that ISPs and telcos have to comply with the program. They will get compensation for their time and effort "at the prevailing rate," and they can challenge the legality of the program in the FISA court, but they can't opt out of the program if it is held to be legal. In effect, the government's certification of the program is akin to a court order; it makes the program mandatory instead of optional. So long as the program passes legal muster, the providers have to go along with it; if they refuse to cooperate, the FISA Court can hold them in contempt. (Note that the providers can't be held civilly liable for their mandatory participation in the program, either.)

  This is pretty complicated legislation, and my morning-after blogging isn't going to capture a lot of the nuances. Still, here are some reactions. First, I have a number of concerns about the legislation from a civil liberties perspective. For example, limiting judicial review to whether it is clearly erroneous that something is reasonably designed to target those reasonably believed to be outside the U.S. seems like a pretty weak threshold. I'm guessing that the FISA Court judges will be pretty tough on this despite the statutory language, but the statutory language itself is obviously very deferential. I also would want the courts to pass on the reasonableness of the government's method more than once a year (note that under the sunset, an authorization can go on for a year even if the legislation has been sunsetted; I gather this means that the legislation is really effective for a year, not six months). I also have an instinctive difficulty with the mandatory nature of the program without individualized court orders forcing compliance.

  At the same time, this legislation does a number of things well. I think I basically agree with the idea that if someone is outside the United States, FISA should not regulate the monitoring of their communications. Intelligence agencies have long been able to monitor such calls from listening posts outside the U.S. without triggering FISA (think Echelon); this legislation makes the same rule apply regardless of where the communication is routed. Although I'm not happy about forcing ISPs and providers to comply with a mandatory program, the basic idea of letting the government access those communications without a statutory warrant requirement seems appropriate.

  I also like the idea of submitting the means of implementing FISA to the judges for evaluation. Although the review is deferential, it recognizes that the technical means of implementing FISA's broad guidance is really critical to how the statute operates. I also think it's important that this is a temporary fix. If the Patriot Act experience is any guide, any reauthorization will come with some serious legislative scrutiny and a ratcheting up of oversight mechanisms as a condition of re-approval.

  Anyway, those are my tentative thoughts. More reactions can be found at Balkinization and Obsidian Wings.
Respondent (mail):
I don't see how any judicial review that allows one way appeals can satisfy the fourth amendment. I recognize that the FISA statute has allowed this in the past, so the problem is not a new one. But what good is a requirement for an impartial judicial seal of approval when, given enough tries, anything at all could be eventually improved. I have no problem with allowing appeals if there would be a way to to allow appeals on both sides. But so long as only the government can appeal, the warrant clause becomes an absolute mockery because the government has three cracks at getting one. Since the constitution places no number on how many cracks the government gets, the only line that can logically be defended against an argumnent that it is entirely arbitrary is the one that gives the government only one shot, either in front of one judge or by majority vote of a panel. To me, this is clearly what the constitution requires.
8.5.2007 2:28pm
Kazinski:
Respondent:
Who would have standing on the other side? This is a Foreign Intelligence operation which is by necessity secret. Should the ACLU be designated <i>in loco parentis</i> for any terrorist that could be monitored?
8.5.2007 2:36pm
Respondent (mail):
If there is no way to get a party on the other side with adequate motivation to appeal to routinely have standing, then the obvious answer is a "no" from the FISA court should not be able to be appealed.
8.5.2007 2:42pm
OrinKerr:
Since the constitution places no number on how many cracks the government gets, the only line that can logically be defended against an argumnent that it is entirely arbitrary is the one that gives the government only one shot, either in front of one judge or by majority vote of a panel. To me, this is clearly what the constitution requires.

Respondent, are you arguing that (1) this program is unconstitutional based on existing law or (2) the Fourth Amendment should be reinterpreted, and then when reinterpreted properly it would lead to this program being unconstitutional? To the extent you mean (1), what cases would you cite for that? And I'm curious: would eliminating judicial review and therefore eliminating the "one way" appeal make the program constitutional?
8.5.2007 2:48pm
Montie (mail):
Respondent,

Wouldn't it be preferable to just make the evidence obtained under a questionable warrant inadmissible in the case of a criminal trial?

The "FI" in FISA stands for foreign intelligence. We should not forget that.
8.5.2007 2:54pm
Respondent (mail):
In the alternative, the FISA court could be required to certify every decision in favor of the government to the FISA court of appeal, who would be expected to retry the case if it was close. I then wouldn't see any problem with allowing government appeals, since the government (if the system worked properly) wouldn't have any more shot at getting approvals under this system of appellate review than it would have under a one-bite only approval application system. A pro-government decision at the initial level could be reversed as easily as an anti-government one.
8.5.2007 2:55pm
Repsondent (mail):
Professor Kerr,
I don't know of any cases directly passing on the constitutionality of a program which makes it almost impossible for a warrant application to be denied. But say, in the "domestic intellegence" context, Congress dictated that any time the government fails in a warrant application, it could simply go to another district judge ad infinitum until it gets an approval, which, given the diversity of judges out there, is almost surely going to happen. What protection does the warrant clause then offer? And if you agree that the fourth amendment must be "re"-interpeted to disallow a law of this sort, what distinguishes it from the law in the FISA act. Two appeals are consitutitional, but not 90?
To answer your last question- yes, I think the program would be perfectly constituitional if it merely provided what has long been held to be required: a neutral magistrate to evaluate the government's claims. So long as the neutrality is not made irrelevant by allowing the government to shop till it drops, the program would pass constitutional muster.

Montie,
The protection needed against unreasonable searches and seizures is felt most acutely ex post and not ex ante. Your solution would provide some kind of deterrent, but isn't an adequate substitution to the warrant clause.
8.5.2007 3:08pm
Doc Rampage (mail) (www):
Orin, this is off the main point, but I think your analysis of what makes people favor this and not favor it is way off. I certainly don't believe that al Qeda is about to nuke the US. It think it is possible but not likely. This is not about how one judges the threat level, but about how one judges the right and responsibility of the US government to protect us from foreign attackers. One extreme (represented by the Democrats) prefers that we respond to foreign attackers by appeasement, paying tribute, or --in extreme cases-- law-enforcement techniques. The other extreme (represented by Republicans) prefers that we respond with overwhelming force; that we hunt them down and kill them with such violence as to make other potential enemies rethink their options.

The debate of FISA and other security matters is not over how dangerous the enemy is, but over how we should respond to enemies in general. Of course there is some overlap between our opinions on this and our perceptions of the danger; if the Democrats really believed that al Qeda is an imminent threat to their own families, they would be far less concerned about the niceties of surveillance. And if al Qeda just wanted to attack us but had no prospects for doing so (or likelyhood of becoming more dangerous), then the Republicans would not want much effort put into exterminating them. But regardless of the threat level, the basic philosophy is that Democrats think that foreign enemies should be treated like domestic trouble-makers and Republican think that they should be treated like foreign enemies.
8.5.2007 3:13pm
publius (mail) (www):
One question I have that I'd love to get your thoughts on relates to this:

The first change is a clarification that FISA warrants are not needed for "surveillance directed at a person reasonably believed to be located outside of the United States." That is, if the government is monitoring someone outside the United States from a telecom switch in the U.S., it can listen in on the person's calls and read their e-mails without obtaining a FISA warrant first. The Fourth Amendment may still require reasonableness in this setting when one or more people on the call of e-mail are inside the U.S. or are United States citizens, but there is no statutory warrant requirement.

Lederman seems to think the "directed at" language is extremely broad. For instance, what if the government wants to listen to someone in Minnesota to obtain information about Bad Guy Reasonably-Believed-To-Be Abroad. Isn't this surveillance "directed at" someone r-ably located outside? In other words, does this language basically give them carte blanche to do anything so long as they cite the proper boilerplate.
8.5.2007 3:27pm
publius (mail) (www):
I should add that the Dem bill had this "directed at" language too but (if I'm reading it correctly) they carved out domestic communications (101(f)(1) &(3)) from the new procedures.

again, taking prof. volokh's warnings that text should be assumed to mean what it says, doesn't give a bad faith actor the ability to remove almost everything from the scope of FISA?
8.5.2007 3:29pm
EIDE_Interface (mail):
Once again, people like Respondent don't get it. We are in a war on Nazi Islamonazi terror and we don't have time for bs like 4th amendment protections for throat-cutting terrorists. Fire up the BBQ grill, coz it's going to be a long summer.
8.5.2007 3:30pm
EIDE_Interface (mail):
Doc Rampage gets it right. Demowhimps think that terrorism is a criminal matter, and Republicans understand that this is a war for our very survival!
8.5.2007 3:42pm
Elliot Reed:
EIDE - exactly. We're dealing with fascist Nazi Islamonazi terrorists who could clearly conquer us and turn the U.S. into a fascist Nazi Islamonazi Caliphate at any moment. Those ACLU wackos are crazy - after all, we can trust the government to make the right decision every time. Commie leftists who think government bureaucrats could make mistakes or abuse their power have been smoking too much pot.
8.5.2007 3:46pm
BruceM (mail) (www):
Anything called the "Protect America Act" has to have bad intentions incompatable with a free, democratic state. Thus, just by reading the title of the bill, I have decided based on experience, that I am against it.

EIDE_Interface: if it's a "war" then it is a perpetual, never-ending war. Crime is perpetual, war is not. Wars have beginnings and ends. I'll prove to you that the "war on terrorism" will never end with a simple thought experiment. If we win the war on terrorism and have a tickertape parade in Times Square to celebrate our victory, will there active anti-terrorism countermeasures at the parade? If so, then the war is not over. If not, what are they protecting us from?
8.5.2007 3:50pm
OrinKerr:
Publius,

My understanding is that in the intel community, there is a sharp distinction between surveillance being directed at someone and their communications being only incidentally collected. As I understand it, it's not boilerplate: it's a really big deal. So I gather this is meant to codify that standard, which I gather is also seen in the correct 1801(f)(1), "contents are acquired by intentionally targeting" standard. That's my sense, at least.

Respondent:

Your theory of what the Fourth Amendment should mean is very interesting, but I am unaware of any basis in precedent, history, or text for the interpretation you propose. I am unaware of any legal rule that the government cannot reapply for a warrant after an application is denied; and I am unaware of any reason to think that such a rule would apply in the case of a certification order that is not a warrant (and for which no warrant is required). Of course, if you have cases that support even a small part of your theory, I would be interested in hearing what cases you have in mind.

Doc Rampage,

I tend to think your view mistakes cause and effect. As a general rule, the question of whether to treat terrorism like simple crime or a foreign war is not itself a question of first principles. Rather, it is a byproduct of the more foundational questions of how you measure the threat and what your preferences are. Those who think the threat is less serious and are more civil liberties-focused will tend to want to treat terrorism as a crime. Those who think the threat is very serious and are more security-focused will tend to treat it as an act of war.
8.5.2007 4:08pm
publius (mail) (www):
The existence of that distinction seems to be the crux for me.

For instance, let's say you're right -- the text of the new 105A really is narrowly tailored (or at least tailored) toward people outside the country. In that case, we care less about the oversight, "clearly erroneous" review, etc. The scope of the power is the axis upon which everything else turns.

If, however, the text allows a major evisceration of the scope of FISA by simply requiring a certification that surveillance (wherever it may be) is r-ably directed toward person X, then everything else (oversight, etc.) becomes more important.

I guess what I'm saying is that if you're right, then you're right. (i.e., if you're right about the SCOPE of this power, then e-thing else makes sense too). If you're not right (though I'd certainly defer to you on all matters FISA), then it seems that FISA has essentially been repealed.
8.5.2007 4:32pm
TruePath (mail) (www):

The first change is a clarification that FISA warrants are not needed for "surveillance directed at a person reasonably believed to be located outside of the United States." That is, if the government is monitoring someone outside the United States from a telecom switch in the U.S., it can listen in on the person's calls and read their e-mails without obtaining a FISA warrant first. The Fourth Amendment may still require reasonableness in this setting when one or more people on the call of e-mail are inside the U.S. or are United States citizens, but there is no statutory warrant requirement.


So I'm a bit unclear on the current state of constitutional law on this point. Suppose the government does engage in unreasonable surveillance of a US citizen while they are located outside the US. If the results of this surveillance are latter used in a criminal prosecution would they by able to suppress such evidence? If not is there any remedy for a 4th amendment violation of this sort? If not how does this cohere with the standard that constitutional violations should be somehow enforceable or have a remedy for violations?

Would other statutes that authorize suing the government for constitutional violations apply to such a case or does this legislation bar such suits?
8.5.2007 4:39pm
Just an Observer:
As a policy matter I admit to feeling conflicted about this.

One the one hand, I have long been sympathetic to the general principle that it is a good idea to restore the rough balance that was struck in FISA in 1978, a balance that has been disturbed by technological shifts. And on one level, that is what this bill does.

This legislation and the associated debate are making explicit what apparently true in 1978, but was deliberately obfuscated: That by
"directing" our surveillance at parties abroad, our government legally is allowed to listen in on most all their communications with citizens here at home, without warrants or serious regulation.

One the other hand, I am not at all sure most people even realized that is what was going on all along 25-30 years ago, and the dissonance is jarring.

The same technological shifts that make it necessary to gather almost all communications at telecom switches, ISPs, etc., also make it possible. This makes a big qualitative change in the tradeoff between liberty and security. It is more feasible for the government to slurp in everything and process it, rather than just targeting certain lines. So while the 1978 legislation did not require a foreign party legally to be identified as a "target," technology effectively did require isolating them.

If the government decades ago wanted to target all my international calls, it used to be that it would be forced to do so explicitly and get a warrant. It lacked the capacity to surveill all international communications and then filter out mine. Today, that capacity is being approached.

Additionally, as Orin pointed out in his recent draft paper, foreign and domestic data is increasing commingled today and the geography of its owner is often not readily apparent. So the government wants additional authority to sort through it even just to identify the source.

So the implicit balance that was struck in 1978 needs to be reconsidered from the ground up.
8.5.2007 4:43pm
Bruce Hayden (mail) (www):
I think that the problem that Lederman, et al. are referring to is that, that under 50 USC 1801(f)(1), when communications are intercepted outside the U.S. it is necessary for one of the parties to be a targeted U.S. person in the U.S. for FISA to apply. But when interception is w/i the U.S., 1801(f)(2) now applies, and now targeting is not relevant, nor is whether the person is in the U.S. legally. That this is likely what is going on here:
SEC. 105A. Nothing in the definition of electronic surveillance under section 101(f) shall be construed to encompass surveillance directed at a person reasonably believed to be located outside of the United States.
Note that 1801(f) is called out specifically, and I would suggest that is specifically to address this (f)(1)/(2) targeting issue.

Remember that one of the problems with FISA all along with this program is that the TSP was set up to overseas calls to/from al Qaeda, et al. who are overseas. The initial problem was when the calls were known to terminate with someone in this country. And then, some have suggested that this was compounded when it was suggested that FISA applies to calls that might (as opposed to were known to) terminate in this country. That would seem to prohibit monitoring all satellite calls without warrants.

The reason that this is big is that the warrant problem is almost entirely with incoming calls. That is why the Administration has claimed that warrants, even using Emergency Orders, don't work. They are too slow and cumbersome to address the problem of when one side of the call is in the country, and the other side is of a targeted individual outside this country. If OBL wants to call Orin at home, the NSA doesn't know to get a warrant for Orin's phone in advance, and has to play catch up. This is worse when they are in the process of rolling up a terrorist network, something that rarely lasts more than a day or two.

Note that when the target or person of interest is in this country, a warrant is clearly in order, and there is really no evidence that the Administration hasn't been getting them for this category all along.
8.5.2007 5:07pm
Bruce Hayden (mail) (www):
I think that my previous post is in agreement with our host here, who said:
My understanding is that in the intel community, there is a sharp distinction between surveillance being directed at someone and their communications being only incidentally collected. As I understand it, it's not boilerplate: it's a really big deal. So I gather this is meant to codify that standard, which I gather is also seen in the correct 1801(f)(1), "contents are acquired by intentionally targeting" standard. That's my sense, at least.
8.5.2007 5:10pm
Mark Field (mail):

If OBL wants to call Orin at home, the NSA doesn't know to get a warrant for Orin's phone in advance, and has to play catch up.


This is contrary to my understanding of current law (someone will, I'm sure, correct me if I'm wrong). In my understanding, the NSA would not need a warrant for such a call. It can listen to ALL calls to and from a targeted person overseas; your bad luck if you happen to converse with OBL on a regular basis. Similarly, if they tapped John Gotti's phone, anyone who called him or received a call from him would find that call recorded without a warrant. Assuming I'm right, your speculation about the purpose of the change is clearly incorrect.


Note that when the target or person of interest is in this country, a warrant is clearly in order, and there is really no evidence that the Administration hasn't been getting them for this category all along.


Huh? The Administration admitted, when this story first became public, that it was not complying with FISA in cases where such compliance was required.
8.5.2007 5:21pm
grumpy realist (mail):
As long as no one in the administration pulls a pissy fit when any foreign country starts monitoring any "suspicious communications" originating in the US and ending up in their laps. Sauce for the goose is sauce for the gander, don't you know.

Anyone who can come up with a good PGP version of voice encryption could make a mint.
8.5.2007 5:28pm
Respondent (mail):
Professor Kerr,
Sure, the government can reapply for a warrant after an application has been denied- but doesn't it at least typically have to go back to the same court it started with?
8.5.2007 5:33pm
OrinKerr:
Respondent,

Why would it? What case would you cite for that?
8.5.2007 5:52pm
Doc Rampage (mail) (www):
Orin, I have several data points that dispute your account. First of all, we had similar debates not too long ago over whether we should be appeasing the Soviet Union or responding to them aggressively, and pretty much the same people were on the same side in that debate. That is, appeasers now were appeasers then and attackers now were attackers then. But in that conflict, it was the appeasers who exaggerated the threat, constantly talking about how any nuclear exchange would render the Earth uninhabitable. So it seems that the appeasers are appeasers regardless of threat level.

Second, those same people who exaggerated the threat of nuclear war downplayed the clear imperialistic goals of the Soviet Union, ignoring the fact that they had already swallowed a dozen countries, were occupying a dozen more, enslaved their own population and the populations of their occupied client states, militarily invaded two client states to restore their puppet governments when the people rebelled, kept an enormous standing army in East Germany --many times the size of the NATO forces, and were funding insurrections around the world by rebels who would then take on client-state status when they had won. No rational person could discount the danger posed by this empire, so it is clear that the appeasers were discounting the danger in order to justify their appeasement preferences, and not the other way around.

Third, many who want aggressive action against terrorists have wanted it since long before we considered the terrorists a serious threat. We wanted strong retaliation against any country that harbored hijackers and Regan's retreat from Lebanon and Clinton's retreat from Somalia really pissed us off, even though we didn't think the threat was that great. Back then, the terrorists were really more like pirates than a direct threat to the US.

Fourth, the appeaser crowd has a long history of tolerating and even embracing open enemies of the US whether they were a threat or not. This consistent preference for the enemies of their country suggests that they have something more in mind than civil rights, especially when the US enemies that they fawn over tend to care nothing at all about civil rights.
8.5.2007 5:59pm
Just an Observer:
I do suggest that those comments above focusing only on "al Qaeda" or "Osama bin Laden" are missing the point, or at least obscuring it terribly. We are no longer talking about what the so-called "TSP," which was supposed to target al Qaeda, and is now defunct. That was last year's controversy.

We now are talking about what this legislation actually does, which is much more sweeping. There is no such focus on al Qaeda, or even terrorism in general, or even foreign powers in general.

This legislation blesses the warrantless interception of all foreign communications with all parties in the United States. It is limited only to whatever the executive branch deems to be "intelligence information," which does not exclude any political, private, religious or commercial communications, AFAIK.

So, for example, if the government believes it has an intelligence interest in knowing what Tokyo Electron, Airbus or other foreign firms are up to, it can eavesdrop without warrants on all communications between those firms and their suppliers or customers here. The same goes for communications between mosques abroad and clerics here, or Mormon missionaries abroad and their Salt Lake City headquarters.

It may be as a matter of policy that our society decides it is okay with that. If so, let's understand explicitly what is at stake.
8.5.2007 6:04pm
Doc Rampage (mail) (www):
EIDE and Elliot (assuming that you are two different people), your responses missed the point of my comment. You mocked me under the theory that my preference for aggression is motivated by an exaggeration of the threat, but the whole point of my post was that this is not my motivation.

Might I propose that you could write more effective juvenile taunts if you were to respond to what your tauntee writes rather than to some straw man of your own imagination. To this end you might want to consider visiting your local community college to ask about classes on reading comprehension.
8.5.2007 6:07pm
publius (mail) (www):
Doc R - I couldn't agree more. In particular, the whole defeatist "let's not bomb the USSR" had devastating consequences. Maybe if we had just bombed more countries, we could have won the Cold War.

Similarly, Nixon's meet-with-China policy has had devastating effects for the world economy. If only we had bombed them in 1972 instead of shaking their hand.
8.5.2007 6:08pm
MacGuffin:
Rather, it is a byproduct of the more foundational questions of how you measure the threat and what your preferences are. Those who think the threat is less serious and are more civil liberties-focused will tend to want to treat terrorism as a crime. Those who think the threat is very serious and are more security-focused will tend to treat it as an act of war.


And those who are more practically than theoretically oriented would like to compare just what real differences treating the terror threat as a war has made vice treating it as a criminal matter.
8.5.2007 6:08pm
jrose:
Are the nature and degree of the oversight appropriate for both 1) the determination that the surveillance is targeted at persons outside the USA and 2) that appropriate minimzation procedures are used. Is the executive branch been given too much power to police itself?
8.5.2007 7:28pm
Mark Field (mail):

Why would it? What case would you cite for that?


The Local Rules of the USDC for the Central District of Los Angeles require that "related actions" be assigned to the same judge. Counsel are required to notify the Court whenever filings arise out of the same facts as a previous filing. I assume most courts have similar rules in order to prevent judge shopping.

These rules certainly apply to cases. I'll have to check to see if they cover warrant applications, but I'd be shocked if they don't.
8.5.2007 7:29pm
Mark Field (mail):
Doh! Central District of California, of course.
8.5.2007 7:29pm
Doc Rampage (mail) (www):
Publius, the Soviet Union was not defeated by the appeasers but by the aggressive Ronald Reagan. And I propose that if you had a real argument then you would not be wasting your devastating sarcasm on those fictional suicidalists who wanted to start a nuclear war.
8.5.2007 7:48pm
markm (mail):
Montie:

Wouldn't it be preferable to just make the evidence obtained under a questionable warrant inadmissible in the case of a criminal trial?


Only if you think that making a criminal case with inadmissible evidence is the only abuse possible from freely wiretapping US citizens in the USA every time they send or receive an electronic communication that crosses the border. (At least, by Just an Observer's analysis a few posts above.)

This won't just include phone calls and e-mails that are explicitly overseas; it's likely to include your medical records (often sent to India to be transcribed, also CAT scans, etc., are often read overseas). It may include phone calls to or from your bank and credit card company if they've outsourced them to cheaper foreign labor, and of course the banking and credit card records that have to go out when the human interface is outsourced. It might even include what you order at the McDonald's drive through lanes - some McD's have even outsourced that. Are you OK with the only real limitation on government snooping being the practicality of filtering all the data? If so,

Do you think the government would never use blackmail for political purposes, or try to silence a critic by anonymously sending the press the list of adult videos he ordered? Or that, unlike narcotics cops who sell narcotics, no civil servant will misuse his position for personal gain, say by extracting your credit card number from the data stream? If so, your naivete is touching... Or if you think that such abuses are just the price we have to pay for security, turn in your conservative credentials. That is the route to totalitarianism, and totalitarian governments have killed tens of thousands for every one killed by terrorists.
8.5.2007 8:24pm
Nihk:

we don't have time for bs like 4th amendment protections for throat-cutting terrorists

For those of you who think the Fourth Amendment is an annoyance to be ignored when a threat appears, could you at least quit pretending that you're defending freedom? If the threat is sufficiently serious, you may well be defending your mom/dad/brother/kids/etc from imminent attack, painful death, etc, but you're not defending freedom, more like paying it as ransom for your family and friends.
8.5.2007 8:29pm
Howard Gilbert (mail):
"The Administration admitted, when this story first became public, that it was not complying with FISA in cases where such compliance was required." No, in the DOJ White Paper and every other official statement the Administration has noted that whether the TSP did or did not fall within the definition of electronic surveilliance in FISA was a question of the "sources and methods" of intelligence that they were not willing to discuss. Therefore, for the purposes of legal argument, they would justify the TSP under the assumption that it fell under FISA without agreeing that it did. This became an interesting point in argument before the Sixth Circuit when (belatedly in my opinion) the DOJ finally pointed out that the program may not fall under FISA at all (and that to determine whether it did nor not would require access to state secrets). The Court was surprised because they previously assumed, as you did, that the question was not in dispute.

"the NSA would not need a warrant for such a call. It can listen to ALL calls to and from a targeted person overseas" It would not need a warrant to intercept such a call outside the US. However, 1801(f)(2) requires a warrant if one party to a conversation is inside the US and the location where the conversation is collected is also inside the US. This is the specific restriction that the new bill replaces. With this new legislation, it is no longer necessary for the NSA to intercepts such calls outside the US.
8.5.2007 8:44pm
markm (mail):
Mark Field:

Why would it? What case would you cite for that?

The Local Rules of the USDC for the Central District of [California] require that "related actions" be assigned to the same judge. Counsel are required to notify the Court whenever filings arise out of the same facts as a previous filing. I assume most courts have similar rules in order to prevent judge shopping.

These rules certainly apply to cases. I'll have to check to see if they cover warrant applications, but I'd be shocked if they don't.

How would violations of that rule in regards to warrants ever be discovered? What would tell a defense attorney to go looking for evidence of previous attempts to get the warrant? Are there records of warrants turned down? Are they accessible to the public, or are they often sealed to protect details of an investigation?

Not that it's important anyway. If the government gets to pick the judge they put the warrant request in front of first, they won't pick a judge who is likely to reject it.
8.5.2007 8:51pm
faux facsimile (mail):
What's the point of the new FISA law? The administration has already stated repeatedly that the warrantless wiretaps it has conducted are legal.

Either the administration believes what it claimed, or it doesn't. If it does, then the new law gives them no additional power: they were already fully entitled to do as they pleased, without any constraints. Of course, if those earlier claims aren't true, then the law is giving unsupervised powers to an executive that has already violated the law.

The new FISA law is at best useless. So why are we supposed to applaud it again?
8.5.2007 9:23pm
Mark Field (mail):

How would violations of that rule in regards to warrants ever be discovered?


The rule for civil actions places an obligation on counsel to notify. It's an honor system, but trust me -- you don't want to be the one who failed to comply. And you certainly don't want to be an AUSA -- someone who appears before the same judges regularly -- who gets caught judge shopping (assuming there is such a rule).


No, in the DOJ White Paper and every other official statement the Administration has noted that whether the TSP did or did not fall within the definition of electronic surveilliance in FISA was a question of the "sources and methods" of intelligence that they were not willing to discuss. Therefore, for the purposes of legal argument, they would justify the TSP under the assumption that it fell under FISA without agreeing that it did.


In the 6th Cir. case, the ACLU submitted this as an uncontested fact based upon statements by both Bush and Gonzales. Since the government never opposed, the District Court treated the fact as uncontested. The government did try later to spin the prior statements, but what the President and the AG said was pretty clear.
8.5.2007 9:47pm
serns:
faux facsimile: For your first question, looks like there was some kind of court ruling (secret, but leaked) that motivated the new law. The ruling supposedly held that the administration was breaking the rules (FISA Act rules), so rather than ignoring a (the?) court set up for that sort of thing, they decided to ask for a change in the law. For your last question, we're supposed to applaud any strengthening of the tools in the war on terror. And wave flags and stuff.
8.5.2007 9:49pm
faux facsimile (mail):
serns: thank you for answering my question.

I think I'm finally understanding how this works:
1) Administration ignores FISA act, claims this is perfectly legal.
2) Court (after long period) says this is not legal.
3) Administration asks to have FISA act amended to legalize previous illegal behavior.
4) Congress passes bill doing what Administration asks for. Doesn't include real oversight, because the Administration can be trusted not to break laws, as demonstrated by previous behavior.
5) Conservatives, libertarians, and other red-blooded Americans rejoice at wonderful compromise between freedom and security: Administration free to do as it pleases, secure from having its behavior questioned.

Thanks for the elucidations.
8.5.2007 10:30pm
Bruce Hayden (mail) (www):
If OBL wants to call Orin at home, the NSA doesn't know to get a warrant for Orin's phone in advance, and has to play catch up.
This is contrary to my understanding of current law (someone will, I'm sure, correct me if I'm wrong). In my understanding, the NSA would not need a warrant for such a call. It can listen to ALL calls to and from a targeted person overseas; your bad luck if you happen to converse with OBL on a regular basis. Similarly, if they tapped John Gotti's phone, anyone who called him or received a call from him would find that call recorded without a warrant. Assuming I'm right, your speculation about the purpose of the change is clearly incorrect.
Let me suggest that you reread my previous posts. Under 50 U.S.C. 1801(f)(2), your interpretation is incorrect. Note in particular the differences between 1801(f)(1) and (f)(2). Your interpretation would likely be correct for (f)(1), but we know that the NSA programs don't fall under that portion of FISA since the interception is in the U.S., and so (f)(2) applies.

Note that when the target or person of interest is in this country, a warrant is clearly in order, and there is really no evidence that the Administration hasn't been getting them for this category all along.
Huh? The Administration admitted, when this story first became public, that it was not complying with FISA in cases where such compliance was required.
Let me repeat, because interception is by necessity within the U.S., 1801(f)(2) and not (f)(1) applies. Because of that, it is irrelevant whether the person in the U.S. being surveilled is the target or even if he is here legally. That is why the TSP arguably didn't comply with FISA, because when OBL called Orin at home, they didn't have a warrant for Orin's phone, and if they didn't have one for OBL either, the survillance would violate the letter of FISA.

Incoming communications from a targeted number or outgoing to a targeted number requires a warrant under FISA, if the other end is in this country, or, worse, apparently recently, if there is a chance that one end is in this country. It doesn't matter who is targeted, or whether they are here legally, if the interception is at the switches in the U.S., a warrant is required under FISA.

If you can read FISA (50 U.S.C. 1801 et seq.) any other way, please let me know how. In particular, please reconcile that with 1801(f)(1) and (f)(2).
8.5.2007 10:47pm
jpe (mail):

Lederman seems to think the "directed at" language is extremely broad.


That's the kicker, alright. And I think someone nailed it above noting that the problem here is with bad faith actors. Given the low threshold that the procedures have to meet, I'm highly skeptical that this bill isn't tantamount to de facto gutting of present law.
8.5.2007 10:57pm
Bruce Hayden (mail) (www):
I do suggest that those comments above focusing only on "al Qaeda" or "Osama bin Laden" are missing the point, or at least obscuring it terribly. We are no longer talking about what the so-called "TSP," which was supposed to target al Qaeda, and is now defunct. That was last year's controversy.

We now are talking about what this legislation actually does, which is much more sweeping. There is no such focus on al Qaeda, or even terrorism in general, or even foreign powers in general.

This legislation blesses the warrantless interception of all foreign communications with all parties in the United States. It is limited only to whatever the executive branch deems to be "intelligence information," which does not exclude any political, private, religious or commercial communications, AFAIK.

So, for example, if the government believes it has an intelligence interest in knowing what Tokyo Electron, Airbus or other foreign firms are up to, it can eavesdrop without warrants on all communications between those firms and their suppliers or customers here. The same goes for communications between mosques abroad and clerics here, or Mormon missionaries abroad and their Salt Lake City headquarters.
Interesting that you can get all that from making 50 U.S.C. 1801(f)(2) act more like (f)(1). Nevertheless, I would suggest that your scenarios would run afoul of other portions of FISA, notably 1801(a), (b), (c), and (e). Tokyo Electron and Airbus are not foreign powers, nor are they legally agents of such. And unless I am very much mistaken, they aren't engaging in international terrorism. And those communications are not likely to qualify as Foreign intelligence information either.
8.5.2007 11:01pm
Bruce Hayden (mail) (www):
That's the kicker, alright. And I think someone nailed it above noting that the problem here is with bad faith actors. Given the low threshold that the procedures have to meet, I'm highly skeptical that this bill isn't tantamount to de facto gutting of present law.
I am assuming that your are suggesting bad actors based on BDS. Otherwise, I don't see the basis for this suggestion. So far, there has been no evidence that anyone has been surveilled who shouldn't have been.

Besides, you also need to read the rest of the amendment. The new provisions are subject to heightened FISC scrutiny.
8.5.2007 11:06pm
Bruce Hayden (mail) (www):
The paranoia here is a bit scary. People are positing all sorts of dire consequences, without looking at how the law is written now, and how it would change under the amendment. Yes, an out of control Executive might be able to subvert the TSP to its own ends. But that is no different than subverting the FBI or IRS for similar purposes. There is nothing in the amendment that would give the Administration carte blanche to intercept any international communications they want.

If I am wrong here, please cite where in the amendment this newly found freedom for the Administration is found. FISA still requires that Foreign intelligence information be the target of interceptions, and I didn't see that amended, etc.
8.5.2007 11:13pm
Bruce Hayden (mail) (www):
I should rephrase the last sentence in the first paragraph of my previous post:
There is nothing in the amendment that would give the Administration carte blanche to legally intercept any international communications they want.
8.5.2007 11:15pm
Angus:
Publius, the Soviet Union was not defeated by the appeasers but by the aggressive Ronald Reagan. And I propose that if you had a real argument then you would not be wasting your devastating sarcasm on those fictional suicidalists who wanted to start a nuclear war.
Doc Rampage, I would please encourage you to read some history other than columns on Townhall. The Soviet Union did not collapse because a former actor gave a couple of belligerent speeches and pushed for a science fiction laser beam weapon. The collapse had everything to do with multiple internal contradictions and flaws in the communist system getting worse every decade, combined with a 40+ year strategy of containing communist expansion while putting steady pressure on the Soviet sphere of influence.

Your claim that Reagan defeated the Soviet Union is akin to a basketball player coming in during the last two minutes with his team up by 20 points, then saying he "won the game."
8.5.2007 11:21pm
Howard Gilbert (mail):
"In the 6th Cir. case, the ACLU submitted this as an uncontested fact based upon statements by both Bush and Gonzales. Since the government never opposed, the District Court treated the fact as uncontested." It has been the unalterable policy of this and every prior administration going back 60 years to never, ever comment on, confirm, or deny any statement or speculation about the "sources and methods" of intelligence. It is not hard to claim that a fact is uncontected if it is unalterable policy not to comment on the claim. The problem is that the government would not have contested any claim you made. If you asserted that the wiretaps were made by little green men in flying saucers from the Planet Zoron, it would still have been administration policy not to deny any claim about how intelligence is gathered. If you then announce that the Administration admits that there are flying saucers, well you are just as dumb as Bush.

Now I will be the first to admit that the lawyers arguing the case screwed up in not making this crystal clear to the District Judge and then only bringing it up on appeal. Obviously they would be demanding in this one case a major change in procedure, but they should have made the demand and if the courts want to review intelligence matters some accomodation should have been granted. At least the question would have been clearly raised and then properly presented on appeal.

What astonishes me is that after every verbal stumble, incoherent utterance, and embarrasing misstatement that Gonzales has made over the last month, all carried clearly in the press, administration critics still go back to a fragment of an incompelete sentence he issues on a late night talk show and declare that Gonzales "admitted" that the program fell under FISA. He didn't say that. He never even finished the throught before adding a completely unrelated set of new clauses to the sentence. When I suggest that Gonzales can't speak, can't think, can't analyze, and not only cannot state a position but cannot even finish a sentence, the three responses appear to be that 1) that is a mean thing to say, 2) no he is actually lying to Congress and everyone else and should be impeached, and 3) this doesn't apply to the one incoherent partial phrase that the ACLU cited to "prove" that the TSP would require a FISA warrant. Oh yes, and all the other carefully worded statements by the Administration and the DOJ that they never, ever, ever would comment one way or the other on the matter can be ignored and discarded because the ACLU and administration critics decided that this one specific Gonzales brain fart was the gold standard that means what they interpret it to mean and that it overrides all else (and yes, is the only true thing that AG has ever said about the TSP).
8.5.2007 11:48pm
JB:
Reagan defeated the USSR in the sense that, if the policies pursued by Johnson, Nixon, Ford, and Carter had continued, the USSR would not have folded in 1989. However, it was those very policies that allowed Reagan's policies to succeed in toppling the USSR, instead of leading to nuclear war.

Furthermore, I find the argument that (unwillingness to accept nuclear war at any scale)=(cowardly appeasement) suspect on many levels, and I wouldn't like anyone who makes it to be in charge of our nuclear forces.
8.5.2007 11:52pm
Richard Aubrey (mail):
Angus.
Yeah. I remember all the liberals telling us how weak the Sovs were and how they were about to collapse any day now.

You apparently think we are required to believe you.

You a professor or something?
8.6.2007 12:10am
Montie (mail):

Do you think the government would never use blackmail for political purposes, or try to silence a critic by anonymously sending the press the list of adult videos he ordered? Or that, unlike narcotics cops who sell narcotics, no civil servant will misuse his position for personal gain, say by extracting your credit card number from the data stream? If so, your naivete is touching... Or if you think that such abuses are just the price we have to pay for security, turn in your conservative credentials.


If your definition of conservatism is John Birch Society paranoia, then I will happily renounce my conservativism. I don't know about you. However, I have just enough gumption that I doubt that I would be an good target for blackmail. I would be more than happy to take the government officials down with me.

I honestly don't understand this bizarre paranoia that people have about government surveilance. While I don't want to live in a Big Brother state, I also don't want to live under an unreasonable threat of terrorism.


That is the route to totalitarianism, and totalitarian governments have killed tens of thousands for every one killed by terrorists.


I beg to differ. Internal surveillance is a means that totalitarian governments develop to impose their will over the people. Totalitarian governments waste a lot of money and resources on internal surveillance that I am sure that they would rather not spend.

Regardless, the internal surveillance rules in other democracies are often more lax than in the U.S. So, I guess they a further down the road to totalitarianism than we are.
8.6.2007 12:18am
Just an Observer:
Howard:

What astonishes me is that after every verbal stumble, incoherent utterance, and embarrasing misstatement that Gonzales has made over the last month, all carried clearly in the press, administration critics still go back to a fragment of an incompelete sentence he issues on a late night talk show and declare that Gonzales "admitted" that the program fell under FISA.


The White House briefing Gonzales gave Dec. 19, 2005, perhaps bore a passing resemblance to a late night talk show, but it was that official briefing and other official statements that the ACLU plaintiffs relied on to establish that fact. Gonzales said then:

Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides -- requires a court order before engaging in this kind of surveillance that I've just discussed and the President announced on Saturday, unless there is somehow -- there is -- unless otherwise authorized by statute or by Congress.
8.6.2007 1:07am
Angus:

Yeah. I remember all the liberals telling us how weak the Sovs were and how they were about to collapse any day now.
Indeed. Starting way back in the late 1940s and 1950s, Democrats who outlined the containment strategy used by every President from Truman to Reagan predicted that the Soviet Union would over time decay and die due to its inherent internal contradictions.

You can also consult the 1983 book "The Threat" by liberal Andrew Cockburn that showed how the Soviet Union and its military had already been reduced to near-3rd world conditions by the late 1970s.

I'll stop the thread drift now, but I just can't refuse an opportunity to spread enlightenment...
8.6.2007 1:14am
Truth Seeker:
There seems to be an affliction of liberals which might be called Civil Liberties Derangement Syndrome (CLDS). They rant above about the government being able to see our CAT scans and movie purchases from overseas and Airbus and Toyota company data. Why the hell would they be interested and how many millions of eavesdroppers would they need to read all communications of all 300 million of us?

It's like that nutty professor who thinks Bush got him extra scrutiny when he check into a flight because he gave a speech against Bush. The reality is no one in the intelligence community cares about you or your movie list or your CAT scan. They don't have time. And it's obvious that the CIA isn't very competent anyway. Let them have their wiretaps and maybe they'll do better than they did on 9/11.
8.6.2007 1:29am
Steve2:


I honestly don't understand this bizarre paranoia that people have about government surveilance. While I don't want to live in a Big Brother state, I also don't want to live under an unreasonable threat of terrorism.



I believe the consequences of living under surveillance are worse than the consequences of getting killed by a terrorist.
8.6.2007 2:08am
NicholasV (mail) (www):
I believe the consequences of living under surveillance are worse than the consequences of getting killed by a terrorist.


Wow. I don't want to have Big Brother either, but I still think I'd pick that over being dead. Perhaps you didn't phrase that very well? Maybe you meant that the consequences of living under surveillance are worse than the small chance of being killed by a terrorist? That would make a bit more sense...
8.6.2007 2:18am
Markusha (mail):
"I believe the consequences of living under surveillance are worse than the consequences of getting killed by a terrorist."

Your sarcasm is misplaced. The correct comparison is between the consequences of living under surveillance and the consequences of a slightly greater chance of getting killed by a terrorist.
8.6.2007 2:40am
Markusha (mail):
NicholasV: you beat me to the punch :)
8.6.2007 2:41am
Apodaca:
Orin writes:
The Fourth Amendment may still require reasonableness in this setting when one or more people on the call of e-mail [] are United States citizens, but there is no statutory warrant requirement.
So the intelligence agencies can conduct warrantless surveillance inside the United States of United States citizens abroad communicating with United States citizens within the U.S.

No, strike that: the intelligence agencies can conduct warrantless surveillance inside the United States targeting United States citizens abroad communicating with United States citizens within the U.S.

There is to be no court oversight, other than general program review by the FISC of the criteria used to determine which targets are, or are reasonably believed to be, outside the U.S.

What's not to like?
8.6.2007 3:24am
David M. Nieporent (www):
The Local Rules of the USDC for the Central District of [California] require that "related actions" be assigned to the same judge. Counsel are required to notify the Court whenever filings arise out of the same facts as a previous filing. I assume most courts have similar rules in order to prevent judge shopping.

These rules certainly apply to cases. I'll have to check to see if they cover warrant applications, but I'd be shocked if they don't.
Putting aside that the Local Rules are just that -- local rules, not statutory or constitutional requirements (*) -- I would be shocked if the related case rule did apply to warrant applications, because of the very different procedural nature of a warrant application.

Hell, I'll go read the rules. The relevant rule in the Central District of California is L.Cr.R. 50-3. It applies on its face to cases, not warrant applications.


(*) By that I don't mean, of course, that attorneys are free to disregard them.
8.6.2007 3:32am
Apodaca:
Bruce Hayden:
So far, there has been no evidence that anyone has been surveilled who shouldn't have been.
Bruce is right, of course. More to the point, how could any such abuse ever go undetected? I mean, it's not like the surveillance is secret, or like the federal government has in any way resisted judicial inquiry into the conduct of the surveillance.

Heaven forfend.
8.6.2007 3:41am
Kazinski:
Steve2:

I believe the consequences of living under surveillance are worse than the consequences of getting killed by a terrorist.

I'd like to avoid both. A British like nanny state seems to me as not quite as bad as dying in a terrorist attack, but I could be wrong. But that is not something you need to fear from conservatives, it would be hard to finance an all encompassing nanny state with pevasive video surveilence, smoke detectors, complete government control of medicine, and universal communications monitoring on 15% of GDP. Its the conservative abhorrance of taxes that would save you from our natural inclination to create gulags and oppress the masses. That kind of shit gets awfully expensive and takes a lot of papershufflers to run. Dammit.
8.6.2007 4:09am
Steve2:
Markusha, no sarcasm.

Yes, I agree with the modification you and NicholasV made to my statement. Yes, I regard terrorism as a negligible threat in terms of its likelihood of happening, and I do think there's too little return on efforts to prevent terrorist attacks to make them sensible on a cost-benefit analysis unless they're zero-cost.

But I also believe there are many things worse than dying, and losing my privacy is one of them. So even if I'm wrong about the odds of dying in a terrorist attack being slim enough already that trying to reduce them doesn't make sense (honestly, to me "preventing terrorism" sounds like it's on the level of "preventing lightning strikes" or some other ignorably unlikely risk), I don't think the consequences of terrorism are severe enough that even if terrorist attacks were guaranteed unless privacy were reduced and surveillance increased the reduction in privacy and increase in surveillance would be justifiable. Yes, I do fear surveillance more than I fear getting killed, and I do regard surveillance as a bigger problem than terrorism.
8.6.2007 4:29am
Adrian (mail):
Look, I understand the constitutional context and all, but can I just say that, from a foreigner's perspective, the premise that surveilling foreigners overseas is fine is actually quite offensive?

Governments have _fewer_ rights over foreigners than they do over their citizens. Foreigners aren't subject to the jurisdiction, don't owe allegiance, aren't parties to the social contract, don't vote, etc. (Assuming they aren't in or trying to get into the country.) I have every sympathy with the 4th Amdt concerns when Americans get monitored, but the constitutional rights of citizens are limits on the legitimate authority of their government. The US government has no legitimate authority over me and, if it wants to listen to my phone calls, can just f*ck right off, and I don't need the 4th Amdt to say so.

None of which is to say that the US shouldn't spy on AQ. But the idea that the US government can _always_ listen to a conversation between an Australian and an Englishman is just plain rude, and the idea that it's OK _because_ no Americans are involved is backwards.

Just sayin'.
8.6.2007 5:18am
Richard Aubrey (mail):
Angus.

Try again. The Sovs had a huge army in Europe completely capable of making enormous inroads into NATO's territory. Whether they would have won or not is a question of interest to the survivors, less so to the bereaved next of kin. Cockburn's analysis notwithstanding. Ditto only more so for their strategic rocket forces.
I happened, unfortunately, to have been in Air Defense in the early Seventies. We knew what they had. amd after a generous discounting for the usual Soviet crapping-out, we were nuclearly screwed.
Cockburn's analysis notwithstanding.

And I recall all the folks telling us we need to get used to the USSR. Be with us a long time, etc. The peace groups meeting with the designated Russian huggy bears, coming back to tell us the only thing we have to fear is Ronald Reagan--the original cowboy and prime threat to the world.

Perhaps I sound young, Angus. Hope so, anyway. But I was an adult then. I am no longer young. But my memory is mostly still with me.

Try something else.
8.6.2007 7:38am
TZiese:
So when Patrick Henry said "Give me liberty or give me death," he was being a Liberal Appeaser. Right?
8.6.2007 7:55am
Richard Aubrey (mail):
TZ. What?????????

Some additional detail about containment. I don't recall the libs being all that interested in it when it meant actually doing something. They always wanted to contain the USSR at the new, more rearward line the USSR wanted to impose on the west. And the next, even more rearward line, and then the next....
8.6.2007 9:03am
Just an Observer:
They rant above about the government being able to see our CAT scans and movie purchases from overseas and Airbus and Toyota company data. Why the hell would they be interested and how many millions of eavesdroppers would they need to read all communications of all 300 million of us?

The enacted bill blesses warrantless surveillance of almost all international communications. I take no comfort in assuming that the government would not listen because it isn't "interested," or believing a fairy tale that the NSA can't buy computers big enough to filter and focus on targeted communications. Only after the computer-based filtering is it even necessary to
have a human read the communications of my family, your church or any company with customers, suppliers or partners overseas. It is quite feasible.
8.6.2007 10:11am
jrose:
Bruce Hayden,

You claimed that "[t]he new provisions are subject to heightened FISC scrutiny." What exactly does that mean? As I read the law, it provides for very little oversight when the surveillance is "directed at" a person not in the USA (does that include US citizens). What did I miss?
8.6.2007 10:27am
jrose:
JaO,

I think Bruce Hayden is correct when he says the new law still requires the surveillance to have as a "significant purpose" the acquisition of "foreign intelliegence information", which I think would precludes the Airbus, Toyota and CAT scan hypotheticals. Of course, a rogue administration might have a different interpretation. My problem with the law isn't what it allows, but rather its its lack of oversight.
8.6.2007 10:33am
Just an Observer:
jrose,

I would like to think you are correct, but I know of no authority that restricts the definition of "intelligence information" by topic in any meaningful way. Do you?

Many would argue with a straight face that commercial intelligence is entirely within the ambit of the intelligence community's mission, as well as intelligence about religious movements. If Islam is a lawful subject of surveillance, then so is the Vatican and the Mormon church, etc. If there are legal lines, where are they established?

Even if there is such restrictive legal authority somewhere, under this statute there is no one but the executive branch to interpret it. As for a "rogue administration," I have no doubt that David Addington will interpret this term to mean whatever he wants it to mean.

Heck, there could be a classified OLC opinion today that tautologically defines "intelligence information" as "information collected by intelligence agencies." These guys readily spin their favorite fragment of dicta, from United States v. Curtiss-Wright Export Corp. (a case related to commercial activity, after all) to mean anything at all.
8.6.2007 11:46am
jrose:
"foreign intelliegence information" is defined in 50 U.S.C. 1801(e), which in turn references various other definitions.
8.6.2007 11:58am
Crust (mail):
Some people think Al Qaeda is about to nuke America, and others think Al Qaeda poses no threat at all. For the most part, our reactions to new surveillance laws hinge on where we fall on those two lines.
Orin, who in your estimation thinks that al Qaeda poses no threat at all? Is there any member of Congress who you think has that view? Any commentator of any significance? Any commenter at VC?

And why do you think one's opinion of the threat level from al Qaeda the key determinant of one's view of the new surveillance law? After all the changes are not limited to surveillance of people connected to al Qaeda.

Furthermore, one of the central disputes about this legislation is the degree of oversight that the FISC has versus the DoJ. Orin, do you think the resolution of that question should depend more on one's view of the al Qaeda threat rather than one's view of the Gonzales DoJ versus the FISC? Or one's views on the general principle of separation of powers?

Furthermore, Orin, you yourself have argued that the TSP was illegal. Might the importance one attaches to the rule of law and executive law-breaking be an important factor for critics here? Especially given that the administration still asserts the right to violate FISA (based on Article II and/or AUMF grounds) even if it is not necessarily doing so? You may disagree with the sentiment, but do you not at least see why some see it as offensive to make anything other than the minimal concession that may be urgently needed while the Administration still contends it has the right to violate the law and has not repudiated its past violations?

In short, I find your implicit assertions that most opponents of this legislation are minimizing the threat of al Qaeda to be a straw man.

As an aside if the orders can last for up to a year and the legislation lasts up to six months, then surveillance under this law can continue up to 18 months (by getting approval now and again as the law is about to expire).
8.6.2007 12:06pm
Bruce Hayden (mail) (www):
For those panicked here over potential horribles, let me suggest that you read the amendment, esp. in view of oversight. As I read it, there are two issues.

First, the procedures put in place to allow surveillance have to guard against collection of Electronic surveillance, as defined (and slightly modified by the amendment) by the statute are reviewed by a FISC judge and provided the Select Intelligence Committees. Any with presumably legal access to the specifics of a program that might violate FISA can make an immediate appeal of the procedures to the FISC, and one of its judges will rule immediately. Finally, those committees also get reports every six months.

I am not sure what more you want, than oversight by both the FISC and the two Congressional Intelligence subcommittees. And note that it is both prospective and retrospective. The program is reviewed before going into affect, it can be appealed while it is in effect, and the agencies have to report how well it is working to Congress.
8.6.2007 12:15pm
jrose:
Bruce,

The FISC reviews only the procedures by which the executive assures us they aren't tapping electronic surveillance, not any particular application. Moreover, the review is limited to a determination if the procedures are "clearly erroneous".

The report to Congress is limited to non-compliance with the AG/DNI directives (not a second pair of eyes on those directives) and a count of the number of directives.

Finally, there is no oversight regarding the required minimization procedures.
8.6.2007 12:32pm
Richard Aubrey (mail):
Kazinski.

The British-like nanny state (Britain) has both nanny state characteristics and terrorism. So far, terrorism has only killed in the low dozens, at the most, per attack.

It would truly be a shame if various 'crats used the issue of terrorism to haul in issues which had nothing to do with terrorism.
8.6.2007 12:35pm
davod (mail):
Bruce M - 8.5.2007 2:50pm

"EIDE_Interface: if it's a "war" then it is a perpetual, never-ending war. Crime is perpetual, war is not. Wars have beginnings and ends. I'll prove to you that the "war on terrorism" will never end with a simple thought experiment. If we win the war on terrorism and have a tickertape parade in Times Square to celebrate our victory, will there active anti-terrorism countermeasures at the parade? If so, then the war is not over. If not, what are they protecting us from.

Just when do you decide you are at war. When do you decide it is ended?

The Hundred Years' War was a conflict between France and England, lasting 116 years from 1337 to 1453

The Thirty Years War is somewhat mis-named. The Thirty Years War was a series of wars in central Europe lasting from 1618 to 1648.

WarsOfTheRoses.com, -the civil wars fought in medieval England from 1455 to 1487 between the House of Lancaster and the House of York.
8.6.2007 12:36pm
Bruce Hayden (mail) (www):
Crust

I view Orin here as more balanced than most. Yes, he seemed to believe that the TSP violated FISA and that Article II power and the AUMF wouldn't allow the Administration to bypass it. He never quite said it, or if he did, I missed it. But rather, that seemed to be the tone of his writings on the TSP and FISA.

But my reading of his post here is that he seems to be seeing the amendment as tweaking FISA to the extent that the TSP more likely doesn't violate the letter of it any more. In other words, Orin is attempting to be objective here, where many of us tend to be more political.

I contrast that with the views of so many here and elsewhere that the amendment is merely a device for ChimpyBusHitler, et al. to tap all our phones, steal our babies, etc.
8.6.2007 12:46pm
Just an Observer:
jrose,

Respectfully, I believe you are confused. The definitions you cite in 50 USC 1801 do not define foreign "intelligence information." Rather, they help define what is covered within the scope of FISA. And yes, that scope involves only "foreign powers" and their "agents."

But this new act is all about excluding surveillance from those very definitions, and from FISA itself.

The residual term "intelligence information" covers the main carveout from Title III, and AFAIK the term is undefined. See 18 USC 2511(f) . Basically, the law is structured like this:

1) Warrantless surveillance in interstate or foreign commerce is criminalized under Title III, unless it fits the scope of FISA's definitions in 50 USC 1801, in which case warrantless surveillance is criminalized under FISA own provisions if FISA's process is not followed,

or

2) The surveillance is collecting "intelligence information" not covered by scope of the FISA definitions, in which case it is entirely unregulated by the statutes.

The key operative language of the new act declares that if the surveillance is "directed" at persons "reasonably believed" to be outside the U.S, it is outside the scope of the definition of "electronic surveillance" under FISA's core definitions, 50 USC 1801(f), which govern the scope of the very definitions you cite above.
8.6.2007 12:54pm
Paleo (mail):
Ha! Ha! Ha! I always said "libertarianism" stopped at the wallet's edge.
8.6.2007 1:16pm
Mark Field (mail):

Hell, I'll go read the rules. The relevant rule in the Central District of California is L.Cr.R. 50-3. It applies on its face to cases, not warrant applications.


Yes, I'm fully aware of that provision. The issue is what rule applies to warrant applications. I don't have the time right now to look that up. Anyone who practices criminal law should chime in. To repeat, the issue is whether the government must return to the same magistrate/judge for the issuance of a warrant once the first one has been denied.
8.6.2007 1:21pm
Bruce Hayden (mail) (www):
JaO,

Yes, that is what is going on. But I don't see it as that major a deal. As I noted above, that portion of the amendment moved the 1801(f)(2) definition somewhat towards the (f)(1) definition. What is now excluded now are international and foreign communications that inadvertently include someone in the U.S. (and where the interception is w/i the U.S. as opposed to 1801(f)(1) for interception outside the U.S.)

Note that the target has to be someone outside the U.S. And, by necessity, that targeting has to be in place before the communications is initiated.
8.6.2007 1:26pm
Bruce Hayden (mail) (www):
Let me rephrase my last sentence:
Note that the target has to be someone reasonably believed to be outside the U.S. And, by necessity, that targeting has to be in place before the communications is initiated.
8.6.2007 1:29pm
Apodaca:
Bruce Hayden:
What is now excluded now [sic] are international and foreign communications that inadvertently include someone in the U.S.
Some more forgiving souls might attribute this use of "inadvertently" to confusion over the meaning of that word, or to ignorance of the text of the new law. Given Bruce's incessant apologetics, however, it is difficult to construe it as anything other than an intentional lie.

As Bruce knows, the new changes to FISA exclude from the scope of "electronic surveillance" all communications from a target believed to be overseas. This is so even if the target is communicating exclusively with persons inside the U.S., and even if those conducting the surveillance are well aware of that fact. If Bruce were honest, he'd have written What is now excluded are communications from anyone reasonably believed to be overseas -- period.
8.6.2007 1:52pm
jrose:
JaO,

50 U.S.C. 1801 begins: "As used in this subchapter ..." The new law adds 1805A, 1805B and 1805C, all of which are part of the subchapter. Only 1805A modifies any part of 1801 (exempting surveillance directed at a person outside the US from the definition of "electronic surveillance"). Thus as I read it, all other definitions still apply.

On the other hand, I agree that the penalties provided in 1809 and 1810 only apply to "electronic surveillance". Thus, if the AG/DNI fail to comply with 105B(a)(4) [which requires that a significant portion of the acquistion be "foriegn intelligence information" as defined in 1801], they face no liabilities. Moreover, the law does not call for any oversight by the FISC, Congress or others to insure compliance with 105B(a)(4), but that gets back to my complaint about oversight/enforcement rather than what the law permits.
8.6.2007 2:38pm
Observer (mail):
The Supreme Court held 40 years ago in the Ramsey case that the Fourth Amendment did not require the Government to obtain a search warrant in order to search international letter mail entering the US. I fail to see any distinction between that case and the NSA listening in on international calls that are placed from people located overseas to people in the US.

As a policy and statutory matter, I can see arguments for requiring the NSA to have some procedures in place to assure that most of the intercepted calls are likely to involve a "person of suspicion" on at least one end of the call. But that has nothing to do with the constitutional arguments. No warrant is required under the constitution for such searches.
8.6.2007 2:52pm
Just an Observer:
Bruce Hayden,

The question others raised has to do with the topical content of "foreign intelligence information." Some seem to believe that there is some unstated law that restricts this term of art to exclude commercial, private, religious or other content, or be restricted to certain classes of foreign and domestic parties such as governments or terrorists.

But no one can explain what in law gives them such comfort. I know of nothing.

You seem to have a different assumption: "What is now excluded now are international and foreign communications that inadvertently include someone in the U.S."

Where does is say that only communications that "inadvertently" involve someone in the United States are included? That is at issue only with respect to determining whether any of the communicants are foreign in the first place. The minimization procedures would come into play only if it turns out that all the parties are domestic under whatever process is devised by the government and not rejected as "clearly erroneous" by the court.

But if any of the communicants are foreign, even if they are communicating with anyone in the United States about any topic whatsoever, the content can be surveilled without a warrant merely by "directing" the surveillance at the foreign party and then capturing both sides of the communication. Legally, there need not be a "target" at all.

The effect can be to exclude most any or all international communications from the scope of FISA, regardless of subject or the characteristic of the parties. It is not restricted to al Qaeda, terrorism, military matters, diplomacy or even foreign powers generally. Every topic and every person is fair game, including all content that is, commercial, professional, religious etc.

You "don't see it as that major a deal." Others may differ as a matter of policy. But let's all understand that is what the law does. Effectively all our international communications now can be intercepted without warrant.
8.6.2007 3:02pm
Richard Aubrey (mail):
To this non-lawyer, the arguments seem scholarly and well done.
However, as the conclusion(s) turn on differing interpretations of various sub-sub grafs, some of whose relevance is itself in dispute, a picture arises.

It's like an experiment in the hard sciences where the variation between the experimental trial and the control is within the margin of error.

I could probably think of one law or another which most lawyers would agree is both legitimate and clear, its meaning indisputable.

This isn't one of them.
8.6.2007 3:05pm
Apodaca:
Observer:
The Supreme Court held 40 years ago in the Ramsey case that the Fourth Amendment did not require the Government to obtain a search warrant in order to search international letter mail entering the US. I fail to see any distinction between that case and the NSA listening in on international calls that are placed from people located overseas to people in the US.
Here are 2 obvious distinctions:

1) The rationale for plenary border search authority stems largely from the need to prevent the smuggling of tangible contraband.

2) The Ramsey majority expressly declines to say that a warrantless border search of international postal mail may encompass reading enclosed letters (as opposed to searching for goods):
we find it unnecessary to consider the constitutional reach of the First Amendment in this area in the absence of the existing statutory and regulatory protection.[FN18] Here envelopes are opened at the border only when the customs officers have reason to believe they contain other than correspondence, while the reading of any correspondence inside the envelopes is forbidden.
413 U.S. 606, 624 (1977) (emphasis added). See also id. n.18 ("We, accordingly, have no occasion to decide whether, in the absence of the regulatory restrictions, speech would be 'chilled,' or, if it were, whether the appropriate response would be to apply the full panoply of Fourth Amendment requirements.")
8.6.2007 3:18pm
Observer (mail):
Just an Observer,

You are absolutely correct. As a matter of constitutional law, no warrant is required to surveil international communications, whether US-Foreign. Foreign-US or Foreign-Foreign. The only question is whether as a policy matter we want to limit the Government's ability to do so.

I would submit that there should not be any restrictions of any kind on Foreign-Foreign communications, whether or not they happen to pass through US airspace or wires.

As for US-Foreign and Foreign-US communicationsm, I don't know enough about the technology to be confident about this, but I would allow the NSA to "tap" the communications of any foreign target identified by the CIA or other Governmental agency as being of interest, and if that person calls or emails someone in the US, well, too bad. On the other hand, if the Government wants to "tap" the communications of someone in the US, I would require FISA court authorization for overseas calls and a regular search warrant for domestic calls. Now, this may not make sense in light of the technology involved, but I'm ready to be educated.
8.6.2007 3:26pm
Crust (mail):
Bruce Hayden @11:46: I think you may have misread my comment. I was criticizing this post for claiming that the principal difference between supporters and critics of this legislation is how seriously they take the threat of al Qaeda. I think that's quite wrong-headed for the reasons I laid out above (though not as wrong-headed as your caricature of the "views of so many here and elsewhere that the amendment is merely a device for ChimpyBusHitler, et al. to tap all our phones, steal our babies, etc.")

Indeed, one could perhaps make the opposite case. E.g. Russ Feingold -- the Senator most visibly opposed to this legislation -- favors withdrawal from Iraq in part to allow us more resources to better combat al Qaeda and the Taliban in Afghanistan. So arguably he takes al Qaeda more seriously than many of the supporters of this legislation who oppose withdrawal from Iraq. But that's not really the point.

My point is that pretty much everyone takes the threat of al Qaeda seriously. I think more what distinguishes critics from supporters are contrasting views on: executive law-breaking, separation of powers, the likelihood of abuse of broad surveillance powers and the competence and the trustworthiness of the Gonzales DoJ. (As well as partisan considerations of course.)
8.6.2007 3:40pm
Apodaca:
Observer:
As a matter of constitutional law, no warrant is required to surveil international communications, whether US-Foreign. Foreign-US or Foreign-Foreign.
Could you please provide citations for the court decisions you believe hold this "[a]s a matter of constitutional law" with respect to US-foreign communications?
8.6.2007 4:10pm
Just an Observer:
jrose,

I see your point now, and it seems that I was the one who was confused, at least partially.

It does appear that the more restrictive definition of "foreign intelligence information" in 50 USC 1801(e) applies to the "additional procedures" described in the new Section 105B of FISA, since those procedures are now part of the FISA subchapter.

I do note that 105B says only that the DNI and AG "may" employ those procedures; they are not required to. The only realistic requirement, as I read it, is that these procedures are necessary to gain the benefits of compelling cooperation from telecoms, and immunizing them from damages. If, as reportedly was the case under the now-defunct TSP, the telecoms were persuaded to cooperate voluntarily, it seems possible to bypass these procedures entirely as far as the government is concerned.

But even outside these procedures, the overall declaration in 105A would remain. It states:

Nothing in the definition of electronic surveillance under section 101(f) shall be construed to encompass surveillance directed at a person reasonably believed to be located outside of the United States.


That flat declaration takes such surveillance out of the scope of FISA's other provisions, without reference to "foreign intelligence information."

The higher-level carve-out from Title III, 18 USC 2511(f), does reference "foreign intelligence information." But the term of art -- which as you point out is defined "As used in this subchapter ..." of FISA -- is not defined for Title III.
8.6.2007 4:40pm
Just an Observer:

You are absolutely correct. As a matter of constitutional law, no warrant is required to surveil international communications, whether US-Foreign. Foreign-US or Foreign-Foreign. The only question is whether as a policy matter we want to limit the Government's ability to do so.


For the record, I am considering this as a policy matter, as FISA was considered in 1978 But I do not endorse Observer's sweeping constitutional claim above. I think the Fourth Amendment question is not so settled as that.
8.6.2007 4:48pm
Kelvin McCabe:
I dont have anything to add with regard to FISA, as Just an Observer put quite well the points i would have raised. As far as the inter-thread debate regarding multiple warrant applications: Im fairly positive there is case law at the state level in my jurisdiction of IL which says that a warrant application that is denied by Judge A cannot simply be put in front of another Judge B. If Judge B grants it on the same application, it can be quashed and the evidence suppressed.

Now, what usually happens in these situations, is Judge A tells the good officer seeking the warrant what is missing; how the complaint for search warrant is deficient. So, if the cop goes and fills in those missing links or evidence for Prob. Cause. he can then come back to any sitting judge and re-seek the warrant. Its only when the officer changes nothing in the application for search warrant where the prohibition lies with regard to judge shopping. While not black letter law, its essentially an issue of res judicata - - if Judge A didnt think there was P.C. on what was given, that determination is conclusive unless and until changes to the warrant application are made.

Warrant applications are not 'cases' in the strictest sense so likely not covered under local rules, but a judicial finding of Probable cause (or a lack thereof) is just that, a judicial finding of record with attendent legal consequences for the parties involved. And one judge cannot simply overrule another at that preliminary stage on the same facts, although of course, once a search warrant is granted, evidence seized, and an arrest made, the presiding trial judge can overrule the prob cause judge on a motion to quash search warrant for lack of P.C., although this process is an uphill battle (issuing judges decision that p.c. exists is given defernce) and you then have the whole good faith exception hurdle to get around.

I didnt have time to get the cite, but it has happened here in IL (state case, not federal).
8.6.2007 5:10pm
markm (mail):

I believe the consequences of living under surveillance are worse than the consequences of getting killed by a terrorist.

I'd like to avoid both. A British like nanny state seems to me as not quite as bad as dying in a terrorist attack, but I could be wrong.

Terrorists can only kill a tiny fraction of us. A surveillance state affects everyone - and if it slides on down the slope to totalitarianism, I'd expect it to follow previous totalitarian governments, which murdered tens of millions of their own subjects, not to mention the wars they started.
8.6.2007 5:31pm
David M. Nieporent (www):
Yes, I'm fully aware of that provision. The issue is what rule applies to warrant applications. I don't have the time right now to look that up. Anyone who practices criminal law should chime in. To repeat, the issue is whether the government must return to the same magistrate/judge for the issuance of a warrant once the first one has been denied.
Yes, I'm fully aware of that issue. And I see no rule anywhere in the FRCrP or Local Rules which governs the issue.

It's not clear to me that the policy considerations would be the same, so it's not clear to me that the rule would be. While we want to discourage "judge shopping," there aren't really issues of judicial economy to consider in the context of warrant applications, the way there are in civil or criminal litigation. A warrant application is self-contained; if there's probable cause, there's probable cause. A warrant likely may be needed in short order, in which it would be detrimental to wait for the availability of the same judge; the same is not true for ongoing litigation.
8.6.2007 5:44pm
Dave Gudeman (mail) (www):
Crust, it strikes me as inexcusably short-sighted to craft legislation like this on the basis of one's opinion of the current administration. This legislation (in the final version) will likely effect administrations for decades to come.

Beside, the complaints of presidential law-breaking and dangers to civil rights seem quite hollow to me. Why are people so upset at a few minor civil-rights issues in the war on Islamic terrorism like intercepting foreign communications and searching library records when there are so much worse violations of civil rights that go on every day in the war on drugs, the war on deadbeat dads and the war on drunk drivers? Not to mention the hate-crime laws and free-speech restrictions on campuses on anyone who violates the politically correct views.

I see a wide gap between potential harm and concern among some people.
8.6.2007 6:41pm
Crust (mail):
Dave Gudeman, one's opinion of the current administration only becomes particularly important for a temporary fix. If you think you have a reasonably trustworthy and competent administration then in urgent situation you might put up with a worse temporarty (six to eighteen months, depending how you measure it) bill.

In thinking decades forward, one needs to contemplate more or less all possible administrations -- Democratic and Republican, respectful of separation of powers and inclined to push the envelop on what the executive can get away with, etc. But surely that only enhances the argument that we need more effective oversight. The potential harm -- if not with this administration, then down the road -- includes spying on political opponents and the press for public advantage.

If nothing else, Congress' great haste at the end and the lack of public debate on the details of this should be troubling.
8.6.2007 11:27pm
Richard Aubrey (mail):
Crust. Do you believe Feingold when he says he wants to devote more resources to Afghanistan?
Is it not likely he will, once the forces are withdrawn from Iraq, figure out some reason to drop Afghanistan?

The problem is that the resources are not exactly fungible. Armor and mech Infantry, and to a lesser extent artillery, are not as useful in Afghanistan. Feingold must know this. His assertions of the preferred tactic mean, to be honest, he must have done his homework. So he knows this.

In both places, as in Viet Nam, we had plenty of shooters. What we lack arre targets. That's a matter of intel, which is not multiplied by the number of line units moved into theater.

It is also useful to recall that we are not in a war against the al Q which attacked us going on six years ago, but a broadly-based movement which sometimes is called al Q, and sometimes something else. We are not fighting the Taliban solely, either.
And lots and lots of foreign bad guys are showing up in Iraq. Given the terrain, it may be easier to kill them there than in Afghanistan, where they would probably go if that's the only place to kill Crusaders.

Anyway, I generally do not believe those who say we should stop what we're doing one place so we can do more of it someplace else. I expect them to bail on the someplace else, too.
Feingold bears no resemblance to a Scoop Jackson democrat who disagrees about where to stick it to the Russians. I think he's fibbing.
8.7.2007 12:43am
Adam Reed:
As a techie, I can't resist the obvious. If a foreign government wishes to monitor conversations among its citizens without regard for privacy monitors or judicial authorization, it may route their conversations through a US switch, and, under cooperation agreements with US agencies, listen in. And of course vice versa.
8.7.2007 12:47am
Bruce Hayden (mail) (www):
Where does is say that only communications that "inadvertently" involve someone in the United States are included? That is at issue only with respect to determining whether any of the communicants are foreign in the first place. The minimization procedures would come into play only if it turns out that all the parties are domestic under whatever process is devised by the government and not rejected as "clearly erroneous" by the court.
Ok, the intent may have been the inadvertent, but you are right that the important thing is that the targeted individual is reasonably believed not to be in the U.S.

So, where we are is that if the target is reasonably believed to be outside the U.S., it is not considered to be electronic surveillance, and thus not covered by FISA. But that means that if the target is not reasonably believed to be outside the U.S., and one party is actually in the U.S., if the interception is in the U.S., you have Electronic Surveillance, and a warrant is required, or a crime is committed. It is still a bit stricter for interception outside the U.S., in that the non-targeted party must be here legally.


But if any of the communicants are foreign, even if they are communicating with anyone in the United States about any topic whatsoever, the content can be surveilled without a warrant merely by "directing" the surveillance at the foreign party and then capturing both sides of the communication. Legally, there need not be a "target" at all.
I would suggest that your last point is refuted by the new language excluding coverage only to "surveillance directed at a person reasonably believed to be located outside the United States". That says to me that someone reasonably believed to be outside the U.S. has to be targeted first. Yes, the actual language in 1801(f)(1) uses the word "targeting" and not "directed", but that part of the amendment specifically refers to 1801(f), and thus is intended to be read in concert with it. I think they are close to being synonyms in this context, but I am open to suggestions on how they differ here.

Still, I think that you just skip over the "directed" language in your assumption that any international calls can be surveilled. Communications are dynamic, and in order for the surveillance to be directed at someone outside the U.S., they have to be targeted before a call is made.
The effect can be to exclude most any or all international communications from the scope of FISA, regardless of subject or the characteristic of the parties. It is not restricted to al Qaeda, terrorism, military matters, diplomacy or even foreign powers generally. Every topic and every person is fair game, including all content that is, commercial, professional, religious etc.
Again, as long as the surveillance is directed at someone reasonably believed to be outside the U.S.

Indeed, I would suggest that that has always been the case for interception outside the U.S., which was quite plausible at the time FISA was originally passed. The problem all along has been that the U.S. could and did intercept international communications outside the country back then, but it can't realistically do so with any degree of thoroughness now due to the technology.

The difference is that it is now necessary to intercept within the U.S., and as a result, international communications moved from 1801(f)(1) to (f)(2), where targeting was irrelevant, as is whether the person is here legally (I switched tenses there due to the amendment).

Nevertheless, you still have the Title III problem when it comes to intercepting international communications within the U.S. Up until recently, I think the consensus was that Title III and FISA fit together, and if FISA didn't apply, then Title III did, if the party was w/i the U.S. That was somewhat called into question in that appeals court reversal of that FISA case, where one judge at least seemed to believe that FISA was exclusive for international (and obviously purely foreign) communications. But I think that is still the minority view.

And note that the section of Title III that excludes FISA coverage requires that the information be foreign intelligence information, and that likely is defined similar to that required for a FISA warrant (Title III defines the term to mean essentially national security information, but then restricts that definition to another part of the act). Regardless of what the phrase actually turns out to mean, it is likely to mean something that would exclude anything that is primarily commercial or personal.

Oh, and then there is the 4th Amdt.

My point being that FISA was never intended to be the only protection we had against government wiretapping, but was rather aimed at one particular thing - allowing the federal government to gather foreign intelligence information for national security reasons.
You "don't see it as that major a deal." Others may differ as a matter of policy. But let's all understand that is what the law does. Effectively all our international communications now can be intercepted without warrant.
As long as the person being targeted is reasonably believed to be outside the U.S. and it involves national security.

To suggest as you do that any all international communications can now be surveilled ignores the limitations already in place in other areas of the law, and essentially ignores the "directed" language of the amendment. It also assumes that neither Congress nor the FISC would object to programs that are designed to surveil other than foreign powers and their agents, as defined by FISA.
8.7.2007 5:33am
Bruce Hayden (mail) (www):
Where does is say that only communications that "inadvertently" involve someone in the United States are included? That is at issue only with respect to determining whether any of the communicants are foreign in the first place. The minimization procedures would come into play only if it turns out that all the parties are domestic under whatever process is devised by the government and not rejected as "clearly erroneous" by the court.
Ok, the intent may have been the inadvertent, but you are right that the important thing is that the targeted individual is reasonably believed not to be in the U.S.

So, where we are is that if the target is reasonably believed to be outside the U.S., it is not considered to be electronic surveillance, and thus not covered by FISA. But that means that if the target is not reasonably believed to be outside the U.S., and one party is actually in the U.S., if the interception is in the U.S., you have Electronic Surveillance, and a warrant is required, or a crime is committed. It is still a bit stricter for interception outside the U.S., in that the non-targeted party must be here legally.
But if any of the communicants are foreign, even if they are communicating with anyone in the United States about any topic whatsoever, the content can be surveilled without a warrant merely by "directing" the surveillance at the foreign party and then capturing both sides of the communication. Legally, there need not be a "target" at all.
I would suggest that your last point is refuted by the new language excluding coverage only to "surveillance directed at a person reasonably believed to be located outside the United States". That says to me that someone reasonably believed to be outside the U.S. has to be targeted first. Yes, the actual language in 1801(f)(1) uses the word "targeting" and not "directed", but that part of the amendment specifically refers to 1801(f), and thus is intended to be read in concert with it. I think they are close to being synonyms in this context, but I am open to suggestions on how they differ here.

Still, I think that you just skip over the "directed" language in your assumption that any international calls can be surveilled. Communications are dynamic, and in order for the surveillance to be directed at someone outside the U.S., they have to be targeted before a call is made.
The effect can be to exclude most any or all international communications from the scope of FISA, regardless of subject or the characteristic of the parties. It is not restricted to al Qaeda, terrorism, military matters, diplomacy or even foreign powers generally. Every topic and every person is fair game, including all content that is, commercial, professional, religious etc.
Again, as long as the surveillance is directed at someone reasonably believed to be outside the U.S.

Indeed, I would suggest that that has always been the case for interception outside the U.S., which was quite plausible at the time FISA was originally passed. The problem all along has been that the U.S. could and did intercept international communications outside the country back then, but it can't realistically do so with any degree of thoroughness now due to the technology.

The difference is that it is now necessary to intercept within the U.S., and as a result, international communications moved from 1801(f)(1) to (f)(2), where targeting was irrelevant, as is whether the person is here legally (I switched tenses there due to the amendment).

Nevertheless, you still have the Title III problem when it comes to intercepting international communications within the U.S. Up until recently, I think the consensus was that Title III and FISA fit together, and if FISA didn't apply, then Title III did, if the party was w/i the U.S. That was somewhat called into question in that appeals court reversal of that FISA case, where one judge at least seemed to believe that FISA was exclusive for international (and obviously purely foreign) communications. But I think that is still the minority view.

And note that the section of Title III that excludes FISA coverage requires that the information be foreign intelligence information, and that likely is defined similar to that required for a FISA warrant (Title III defines the term to mean essentially national security information, but then restricts that definition to another part of the act). Regardless of what the phrase actually turns out to mean, it is likely to mean something that would exclude anything that is primarily commercial or personal.

Oh, and then there is the 4th Amdt.

My point being that FISA was never intended to be the only protection we had against government wiretapping, but was rather aimed at one particular thing - allowing the federal government to gather foreign intelligence information for national security reasons.
You "don't see it as that major a deal." Others may differ as a matter of policy. But let's all understand that is what the law does. Effectively all our international communications now can be intercepted without warrant.
As long as the person being targeted is reasonably believed to be outside the U.S. and it involves national security.

To suggest as you do that any all international communications can now be surveilled ignores the limitations already in place in other areas of the law, and essentially ignores the "directed" language of the amendment. It also assumes that neither Congress nor the FISC would object to programs that are designed to surveil other than foreign powers and their agents, as defined by FISA.
8.7.2007 5:35am
Bruce Hayden (mail) (www):
Given the length of my last post, I apologize for the double posting. It didn't look like it was going out, so I decided to clean up the formatting a little, and voila, two copies.
8.7.2007 5:36am
Bruce Hayden (mail) (www):
Given additional thought, I do think that my use of the word "inadvertent" was incorrect. I was applying the word to the non-targeted person in a conversation. But the place where it really belongs is with the "reasonably believed to be located outside the United States".

The problem is how to handle calls where the NSA doesn't know for sure where the two parties are located, or more particularly, whether either is located at the time of the call inside the U.S. If they intercept a satellite call from OBL, they may not be able to state with 100% assurance that he is still holed up in a cave on the Pakistani/ Afghani border, but may have snuck into this country to get much needed medical treatment. And, after all, where is the last place we would look for him?

This would seem a silly thing to worry about, except that there seems to be some indication that a FISC judge started to crack down on this sort of call, and determined that if the NSA couldn't be sure that a party to a call wasn't outside the U.S., then they had to assume that he was inside - which turned intercepting the call into electronic surveillance, requiring a warrant. And the "reasonably believed" language would seem to corroborate that, since that would eliminate OBL sneaking into this country for medical treatment. (Interestingly, 1801(f)(2) doesn't require that someone be here legally for FISA to apply).

So, the "inadvertent" is probably much more appropriate for the case of a party to a conversation who was believed to be outside this country, but wasn't, than it is being applied to the non-targeted party in a conversation.
8.7.2007 6:34am
Just an Observer:
Bruce Hayden,

As a footnote, since I last replied to you I replied to jrose, and conceded that to the extent the "additional procedures" and certifications of the new Section 105B are employed, they are restricted by the definition of "foreign intelligence information" in 50 USC 1801(e). Of course, the only arbiter of this definition is the executive branch, which issues a general certification that does not specify who, what or where the ultimate targets are.
8.7.2007 10:14am
Crust (mail):
Richard Aubrey:

Crust. Do you believe Feingold when he says he wants to devote more resources to Afghanistan?
Is it not likely he will, once the forces are withdrawn from Iraq, figure out some reason to drop Afghanistan?
I do take Feingold at his word. I can't see inside his head obviously, but I have no reason to think he's dissembling. There are rather obvious differences between Afghanistan and Iraq: for one, though he voted against the AUMF for Iraq, Feingold (like every Senator) voted for the AUMF for Afghanistan. And as you may recall on 9/11 we were attacked by a group hosted by the government of Afghanistan. Certainly I bear a grudge about that and I expect Feingold (like every or almost every Congressman) does too.
8.7.2007 11:07am
Richard Aubrey (mail):
Crust.

Well, good for you and your faith in Feingold. I just can't muster that degree of belief.

I would also like to know that he's figured how much harder it would be to fight in Afghanistan once the terrs are relieved of having to fight in Iraq. Even if he's wrong, I'd like to know he's thought about it.

But I doubt it. Just a feeling, he's lying like a rug.

He will think --should this come to pass--of a way to bail in Afghanistan and those who believed him will show no discomfort whatsoever. Because I believe those people know exactly what's going on and approve.
8.7.2007 12:01pm
JosephSlater (mail):
An amusing take in The Onion.
8.7.2007 1:03pm
bi (mail) (www):
As I commented elsewhere:

Despite waxing lyrical over how "we're talking policy here, not law", there's totally zero discussion on whether the measures actually make things safer. 9/11 wasn't even coordinated or conducted by means of any sort of Internet or phone communication, so where in the nine hells does anyone get the idea that monitoring people's phone calls and e-mail will prevent another 9/11?
8.8.2007 3:43am
Richard Aubrey (mail):
bi.
Preventing another 9-11 is going to be done by the passengers.

We're not looking to prevent solely another 9-11, to take you literally.

We hope to prevent something we haven't thought of yet. You know. We don't want to be like the fabled generals always ready to fight the last war.
8.8.2007 10:40am
Richard Aubrey (mail):
Saw Newt Gingrich giving a talk recently. Somebody asked him about the WOT. He opined we are in worse trouble than any time since the eighteen-fifties.

One remark was interesting. Those who support civil liberties ought to think about what the American people will be willing to--will demand to--give up after the first city goes up in radioactive flame.

I don't think he was referring specifically about making communication easier for terrorists overseas who, after all, haven't had their cases appealed to the SCOTUS yet and can't be considered bad guys. Or making it harder for them to call each other (the goal of the evil bushbot fascists). He was suggesting, more broadly, that getting a handle on the WOT has a number of benefits, including civil liberties.
8.8.2007 12:20pm