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Interesting Pieces on the New FISA Legislation:
Lots of interesting articles recently on debates over the new FISA legislation. Yesterday's New York Times had this story on the reaction to the law. Over at the New Republic, Benjamin Wittes has a tentative defense of it that is somewhat similar to mine.
John T. (mail):
I do not think that it was well written as it could have been, and I share some of the concerns. I do not think that I would have changed the definition of electronic surveillance as they did.

I definitely think, as I've mentioned before, that changes were needed in order to intercept signals from particular non-US person targets that travel over public packet-switched networks. It is unfortunately nearly impossible to guarantee that wired signals are completely from non-US persons, like it used to be. Wireless communications have thus always had different restrictions. This amendment does not seem to be the absolute best way to accomplish it, though.
8.20.2007 1:56pm
Just an Observer:
I read Wittes' piece with interest. His reading of the de facto operation of FISA in 1978, with respect to radio and satellite interceptions being deemed not to occur in the United States, is consistent with my understanding from the FISA folklore. (I do wish someone would cite an actual authority for this interpretation, though.)

Like Orin's recent comments, Wittes says the primary safeguard protecting U.S. persons in such outside-of-FISA surveillance lies in minimization procedures.

Maybe I am just wooden-headed, but I still can find nothing in the statutes that requires minimization at all when the definition of "electronic surveillance" is not met. If I am wrong, could someone please direct me to a statute or case that spells out such a requirement?

To take a simple example under traditional FISA as originally enacted, suppose U.S. citizen John Smith was in Moscow talking to Russian government agent Boris Badinoff, who was being explicitly targeted and surveilled by the NSA, which acquired their conversation locally. Was that surveillance subject to minimization, and if so why?

Now, under the FISA amendment just enacted, there is an "additional procedure" authorized in the new section 105B, but as far as I can tell that process is optional for the government. Does anyone think FISA, as amended, requires that such a conversation today be subject to minimization? If so, where does the statute say that?

If the facts above are changed so that Boris is targeted in Moscow, but talking to John in the United States, how does that affect the statutory requirements for minimization under the new law?
8.20.2007 3:35pm
Just an Observer:
As far as yesterday's New York Times story goes, I am glad to see that Risen and Lichtblau have belatedly figured out that the provisions of the new law are more controversial and more sweeping than their last reporting effort on Aug. 11 had indicated.

However, even the new story contains this puzzling sentence:

The dispute illustrates how lawmakers, in a frenetic, end-of-session scramble, passed legislation they may not have fully understood and may have given the administration more surveillance powers than it sought.


What?

It is no secret that Congress finally enacted, vebatim, the precise language drafted by the administration.
8.20.2007 3:53pm
jrose:
JaO,

As I read it, Badinov's conversation with Smith in Moscow has never been considered electronic surveillance, and thus FISA's minimization requirements have never applied (yet, Wittes claims there were "more general prohibitions against retaining information on Americans that do not constitute legitimate foreign intelligence"). Ditto for a conversation between Badinov (in Moscow) and Smith (in the USA) when the interception took place outside the USA, or on a wireless link inside the USA. Thus as Wittes' argues, the current law only extends that status to to an interception inside the USA on a wired link (what's the big deal). Which suggests the question: why was that distinction made in the first place?
8.20.2007 4:15pm
Just an Observer:
jrose: Thus as Wittes' argues, the current law only extends that status to to an interception inside the USA on a wired link (what's the big deal). Which suggests the question: why was that distinction made in the first place?

As I interpret the history and politics, members of Congress and presidents are supposed to have intended to allow the NSA to intercept most international communications to/from the United States without a warrant. But these leaders did not want to offend their constituents -- all of whom are U.S. citizens, and some of whom communicate internationally -- by saying that in so many words.

Thus, the obfuscatory construction was adopted, based on the fact that most such traffic then was via radio. Somewhere -- perhaps only in secret precedent or secret administrative interpretation? -- there is a magic asterisk that says radio and satellite intercepts are deemed not to occur within the United States.
8.20.2007 4:41pm
Just an Observer:
jrose,

p.s. Both our spellings are wrong. The name is correctly spelled Boris_Badenov
8.20.2007 4:44pm
scote (mail):

However, even the new story contains this puzzling sentence:

The dispute illustrates how lawmakers, in a frenetic, end-of-session scramble, passed legislation they may not have fully understood and may have given the administration more surveillance powers than it sought.

More like, "gave the Administration more power than it claimed to have sought."

The Administration's cognitive dissonance may impede its prosecution of the War in Iraq but they have no such problem when it comes to ratcheting up the unilateral power of the Presidency. On that point, they are very well thought out. I think it does a disservice to presume the Admin. didn't realize the implications of the language they, themselves submitted.
8.20.2007 5:06pm