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Fascinating Interview with DNI McConnell about New FISA Legislation:
The El Paso Times has printed the transcript of a fascinating interview with Director of National Intelligence Michael McConnell about the need for the Protect America Act, the new FISA amendments. It's worth a full read, but here are some excerpts (with paragraph breaks added by me):
Question: How much has President Bush or members of his administration formed your response to the FISA debate?

Answer: Not at all. When I came back in, remember my previous assignment was director of the NSA, so this was an area I have known a little bit about. So I came back in. I was nominated the first week of January. The administration had made a decision to put the terrorist surveillance program into the FISA court. I think that happened the 7th of Jan. . . . . The FISA court ruled . . . and they said the program is what you say it is and it's appropriate and it's legitimate, it's not an issue and was had approval.

But the FISA process has a renewal. It comes up every so many days and there are 11 FISA judges. So the second judge looked at the same data and said well wait a minute I interpret the law, which is the FISA law, differently. And it came down to, if it's on a wire and it's foreign in a foreign country, you have to have a warrant and so we found ourselves in a position of actually losing ground because it was the first review was less capability, we got a stay and that took us to the 31st of May.

After the 31st of May we were in extremis because now we have significantly less capability. And meantime, the community, before I came back, had been working on a National Intelligence Estimate on terrorist threat to the homeland. . . . [T]hey had discovered [a safe haven for Al Qaeda] in the border area between Pakistan and Afghanistan. . . . . This area is referred to as the FATA, federally administered tribal areas, they have the recruits and now the objective is to get them into the United States for mass casualties to conduct terrorist operations to achieve mass casualties. . . .They have em, but they haven't been successful. One of the major tools for us to keep them out is the FISA program, a significant tool and we're going the wrong direction.

So, for me it was extremis to start talking not only to the administration, but to members of the hill. So from June until the bill was passed, I think I talked to probably 260 members, senators and congressmen. . . .

Q: Can't you get the warrant after the fact?

A: The issue is volume and time. Think about foreign intelligence. What it presented me with an opportunity is to make the case for something current, but what I was really also trying to put a strong emphasis on is the need to do foreign intelligence in any context. My argument was that the intelligence community should not be restricted when we are conducting foreign surveillance against a foreigner in a foreign country, just by dint of the fact that it happened to touch a wire. We haven't done that in wireless for years.

Q: So you end up with people tied up doing paperwork?

A: It takes about 200 man hours to do one telephone number. Think about it from the judges standpoint. Well, is this foreign intelligence? Well how do you know it's foreign intelligence? Well what does Abdul calling Mohammed mean, and how do I interpret that? So, it's a very complex process, so now, I've got people speaking Urdu and Farsi and, you know, whatever, Arabic, pull them off the line have them go through this process to justify what it is they know and why and so on. And now you've got to write it all up and it goes through the signature process, take it through (the Justice Department), and take it down to the FISA court. So all that process is about 200 man hours for one number. We're going backwards, we couldn't keep up.
Thanks to Marty Lederman for the link.
CheckEnclosed (mail):
If you compare this transcript to the oral argument before the Ninth Circuit recently in which the Government asserted the offficial secrets privilege (and other assertions of the privilege ingeneral)it seems astounding that the DNI would say how many man hours it takes to do anything. How is that not sources &methods?

Unless, of course, it is pure disinformation.
8.22.2007 7:26pm
Kazinski:
It is just impossible to conduct foreign intelligence with judges trying to micro-manage the process.

Think about it from the judges standpoint. Well, is this foreign intelligence? Well how do you know it's foreign intelligence? Well what does Abdul calling Mohammed mean, and how do I interpret that? So, it's a very complex process, so now, I've got people speaking Urdu and Farsi and, you know, whatever, Arabic, pull them off the line have them go through this process to justify what it is they know and why and so on.

Maybe the congressional action needed was to impeach the federal judge in question, rather than amend FISA. I think that should please everybody, both liberals that are critics of FISA2007 and conservatives.
8.22.2007 7:28pm
scote (mail):
He even suggests that he's killing Americians buy just admitting the program exists:

Well, one of the things you do is you talk to reporters. And you give them the facts the best you can. Now part of this is a classified world. The fact we're doing it this way means that some Americans are going to die,

Clearly Michael McConnell hates America, or he'd just refuse to talk to Congress, just like Harriet Myers and Karl Rove.

It seems curious that Michael McConnell can talk about this issue and yet the issue of whether the US spied without a warrant on privileged communications with lawyers based in the US. It is always ok when the Admin does it to defend itself from criticism but never ok when someone wants to expose them as lawbreakers. Curious, that.
8.22.2007 8:11pm
Kazinski:
Scote:
Maybe it was part of McConnell's nefarious plan to try to build support for the program so it will be kept in place when it sunsets. Their evil calculus may even extend so far as balancing the number of lives that might be saved by continuing the surveilence programs against the lives that could be lost by the disclosures necessary to build support for it. They have no right to play God with peoples lives. Rather than try to balance such difficult choices they should just sit on their hands and lament the lack of a Pareto optimal solution.
8.22.2007 8:37pm
Mark1971:
When McConnell says that they must have a warrant for surveillance against a U.S. person does he mean when the US person is the target of the surveillance?
8.22.2007 8:58pm
scote (mail):

When McConnell says that they must have a warrant for surveillance against a U.S. person does he mean when the US person is the target of the surveillance?

Hmmm...in the ATT 9th Circuit hearing, the government always referred to warrantless spying directed at a "foreign person" but always obfuscated on the point of whether than meant a person outside of the US.

I suspect these people would go so far as to send the NSA fiber tap to Canada so they could claim that the intercepts are foreign and not subject to FISA, or other such transparent nonsense.

Scote:
Maybe it was part of McConnell's nefarious plan to try to build support for the program so it will be kept in place when it sunsets. Their evil calculus may even extend so far as balancing the number of lives that might be saved by continuing the surveilence programs against the lives that could be lost by the disclosures necessary to build support for it. They have no right to play God with peoples lives. Rather than try to balance such difficult choices they should just sit on their hands and lament the lack of a Pareto optimal solution.

I don't buy the generic use of the "Don't question us or lives will be lost" excuse. Granted, in some circumstances that is undoubtedly true, like giving details of specific people we are spying on. Whether a warrant is required and under what circumstances **are not such a details**. The current administration is one that won't even reveal its *legal rationale* for domestic spying. I don't buy that the legal rationale should be kept from the American people.
8.22.2007 9:10pm
Just an Observer:
Orin,

As I just commented on Marty's blog, McConnell here seems to be saying on the record essentially what the White House official told you on background recently. He essentially denies reverse-targeting and large-scale data mining.

My question continues to be: Why will the administration not agree to legislation that expressly forbids practices it says it does not want to execute?
8.22.2007 9:27pm
OrinKerr:
Scote,

What if the legal rationale has to do with the details of how the surveillance is being done? As you know, the law can often hinge on very specific details; this is particularly true in the surveillance context. Should the government have to disclose the details of what they're doing if its legality hinges on it?
8.22.2007 9:30pm
scote (mail):

Scote,

What if the legal rationale has to do with the details of how the surveillance is being done? As you know, the law can often hinge on very specific details; this is particularly true in the surveillance context. Should the government have to disclose the details of what they're doing if its legality hinges on it?

I do understand that certain details could be contained in a legal rationale. That's what redaction is for. I have a hard time imagining a legal rationale that could not be redacted or discussed with slightly more generic terms in place of operational details.

Part of the problem is that there is literally no reason to trust the current administration's assertion that operational details would be given away, even in a redacted version, since the current administration has made secrecy the default position for nearly all information rather than one assigned based on merit. The administration has worn out the "just trust us" rug and disclosure should be the default unless they can prove otherwise.

I've yet to see a convincing argument of why it would "help the terrorists" if they knew that spying did or didn't require a warrant. You can argue that such knowledge would give them a probability factor but the said could be said of all potential suspects who might be subject to taps, not just terrorists and the only way to eliminate that factor would be to rescind the 4th Amendment. The Administration hasn't proposed that, instead they positively assert the right to ignore any and all statutes and the constitution whenever they feel so inclined--ironically claiming the power to violate the constitution is a power implicitly granted to the President by the Constitution.
8.22.2007 10:45pm
OrinKerr:
Scote writes:
I have a hard time imagining a legal rationale that could not be redacted or discussed with slightly more generic terms in place of operational details.
Scote, what about the reasonableness of the search under the "special needs" doctrine? That requires a very fact intensive analysis of the program, its effectiveness, its impact, and its tailoring. What "generic details" would you use in the place of these details?
8.22.2007 10:54pm
scote (mail):

Scote, what about the reasonableness of the search under the "special needs" doctrine? That requires a very fact intensive analysis of the program, its effectiveness, its impact, and its tailoring. What "generic details" would you use in the place of these details?

Given that we are discussing an entire class of search I would think that some generalities would exist that need not refer specifically to iterating the specifics of our sigint capabilities.

Are you advocating that the Federal government should be ruled by secret legal rationales, laws and enforcement? I suspect you are not, but your argument for the secrecy of the legal rationales for wiretaps can be logically and consistently extended to other areas of government and law enforcement.

It is clearly the case that any law enforcement capability could be characterized as being compromised by having its existence and limitations known, from the number of police officers on the force, use of deadly force authorizations and high speed chase guidelines.

Where are you going to draw this line?
8.22.2007 11:28pm
Elliot123 (mail):
The law can be a great strength for a nation. At what point does it become a weakness?
8.22.2007 11:36pm
Justin (mail):
I sympathize with McConnell, but there are both policy and constitutional reason for requiring a lead BEFORE tapping the phone. There's still a role for human intelligence, and there are just too many Muslims in this world to try and listen in on every conversation from Abdul to Mohammad.

I have a few other thoughts, but I'm gonna play nice.
8.22.2007 11:58pm
scote (mail):

The law can be a great strength for a nation. At what point does it become a weakness?

...at the point you start ignoring it for the sake of expediency.

Secret laws, secret legal rationales, secret arrests, secret indefinite detentions, secret "enhanced interrogation" techniques, secret trials, secret evidence, secret wholesale wiretaps, secret data-mining--these are the trappings police states. Police states aren't necessarily "weak" states, but I don't think strength alone has value to society.
8.23.2007 12:25am
Just an Observer:
One of the most puzzling aspects of what McConnell and the administration are asking for is retroactive immunization for telecoms for liability stemming from their past cooperation with the "Terrorist Surveillance Program." For example, he says in this interview:

Now the second part of the issue was under the president's program, the terrorist surveillance program, the private sector had assisted us. Because if you're going to get access you've got to have a partner and they were being sued. Now if you play out the suits at the value they're claimed, it would bankrupt these companies. So my position was we have to provide liability protection to these private sector entities.

What is supposed to be wrong with certification protections under existing law, 18 USC 2511(2)(a)(ii)(B)?

a certification in writing ... that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required,


Since the administration asserts to us today that the TSP met all those conditions, why would the AG not have provided such a certification to the TSP-enabling telecoms?

Section 2511 goes on to say,

No cause of action shall lie in any court against any provider of wire or electronic communication service, its officers, employees, or agents, landlord, custodian, or other specified person for providing information, facilities, or assistance in accordance with the terms of a ... certification under this chapter.


If the telecoms did not get such certifications, why not?

(BTW, the government now claims in court where the telecoms are being sued that the existence or non-existence of such certifications is a state secret -- although apparently it's okay to tell the El Paso Times -- and that the certifications cannot even be shown to a judge. So what good is such a document?)
8.23.2007 12:44am
OrinKerr:
Scote writes:
Given that we are discussing an entire class of search I would think that some generalities would exist that need not refer specifically to iterating the specifics of our sigint capabilities.
Huh? I have no idea what this means. When a court applies the special needs doctrine, that doctrine calls for a careful balance of reasonableness in light of the circumstances. It seems to me that we would need to know all of the facts that might be remotely relevant to reasonableness in order to determine if the search that is a part of the program can be justified on that basis. What "generalities" will satisfy that?
Are you advocating that the Federal government should be ruled by secret legal rationales, laws and enforcement? I suspect you are not, but your argument for the secrecy of the legal rationales for wiretaps can be logically and consistently extended to other areas of government and law enforcement.
Scote, obviously I'm not arguing that. I'm suggesting that the Administration has very real and very serious reasons not to disclose how this program works. You might believe that the costs of disclosure are lower than the costs of secrecy, but I think the former would be real and serious.
8.23.2007 1:07am
scote (mail):

Huh? I have no idea what this means. When a court applies the special needs doctrine, that doctrine calls for a careful balance of reasonableness in light of the circumstances. It seems to me that we would need to know all of the facts that might be remotely relevant to reasonableness in order to determine if the search that is a part of the program can be justified on that basis. What "generalities" will satisfy that?

I was referring to releasing the legal rationales used to comply/evade FISA by the Administration and the issue over whether the congress and the public should be allowed to know the rationale used to spy on Americans by the Administration. I was not suggesting that these rationales necessarily would be released unsealed and underacted nor that they would necessarily be sufficient for court review in the released version.

US citizens have a right to know under what general principles the government can spy on them. The Bush Administration is keeping those general principals secret to the point that they wouldn't even confirm at the ATT 9th circuit hearing if, for FISA purposes, a "foreign person" is someone communicating from outside the US or if it is a non-US citizen inside the US--perhaps because the Administration uses what ever definition is most convenient for a given circumstance.

Scote, obviously I'm not arguing that. I'm suggesting that the Administration has very real and very serious reasons not to disclose how this program works. You might believe that the costs of disclosure are lower than the costs of secrecy, but I think the former would be real and serious

You obviously have both the professional experience and the scholarship to back up such a position and yet the reason you have provided so far is, in essence, an un-restricted argument: disclosure of law enforcement capabilities involves security risks. What you haven't done is attempted to delineate the limits of such a rationale other than to presume that the Administration's position is justified.

Where do you draw the line? That question remains not only unanswered but completely un-addressed.

There are lots of things that would aid law enforcement if they were undisclosed. I've mentioned a few already, but some others would be the law in general. It would be easier for Law Enforcement to detain and interview suspects if laws were secret and suspects had no idea why they were being detained or how long they could be detained. It would also be easier to interview them if suspects did not have to be informed of their rights. And it would be easier to get secret recordings if the circumstances under which prisoners could be recorded were secret. Now, those might seem to be very broad, but the Miranda warning is a very real example.

Taking a look at Miranda, for example, it is very inconvenient for police to have to inform suspects of their rights, yet such a warning is not explicitly required by the constitution. Likewise, it is inconvenient for Law Enforcement to have suspects know when a warrant might be needed to monitor communications, but this is no more burdensome than, say Miranda warnings. You could argue that Miranda warnings happen after an arrest and aren't 100% analogous, which I'd concede, but you still wouldn't have provided a guideline by which we can decide what laws that directly affect the constitutional rights of US Citizen may be kept secret from the same.

You effectively don't have constitutional rights if they can be secretly violated and secretly waived by the government using secret laws and secret rationales approved by a secret court, and when discovered are un-reviewable for constitutionality because of a universal get out of constitutional review card called: State Secret privilege--a common law concept not enumerated in the constitution. Such is anathema to our constitutional democracy.
8.23.2007 1:46am
cboldt (mail):
I'm going to be watching for the people who take "100 or less warrants for people in the US" as equivalent to "we only listen to communications of 100 of less people in the US."
.
What's the over-under on statutory retroactive immunity before the 1st session of the 110th Congress adjourns sine die?
8.23.2007 8:59am
Anderson (mail) (www):
[T]hey had discovered [a safe haven for Al Qaeda] in the border area between Pakistan and Afghanistan

IIRC, the press had discovered this rather earlier. What was Nixon's complaint about the CIA - that it was just a bunch of guys reading newspapers?
8.23.2007 10:11am
Anderson (mail) (www):
Kazinski: It is just impossible to conduct foreign intelligence with judges trying to micro-manage the process.

Yeah, and you know what else? It is just impossible to conduct police work with judges trying to micro-manage the process ... Constitutional this and Fourth Amendment that, can't beat the guy up to make him talk ... I tell you brother, this country is going to the dogs and the liberals.
8.23.2007 10:17am
OrinKerr:
Scote,

I'm curious -- do you think that United States v. Reynolds is anathema to our democracy? That is, do you think that the existing states secrets doctrine is unconstitutional as a violation of the constitutional rights of citizens to know what their government is doing?
8.23.2007 11:41am
Dittybopper:
Scote:

I don't buy the generic use of the "Don't question us or lives will be lost" excuse. Granted, in some circumstances that is undoubtedly true, like giving details of specific people we are spying on. Whether a warrant is required and under what circumstances **are not such a details**. The current administration is one that won't even reveal its *legal rationale* for domestic spying. I don't buy that the legal rationale should be kept from the American people.


Actually, there are historical examples of just that happening, where specific information wasn't released, just some vague and generic indications that communications were being exploited, and that led to deaths.

The prime example of this has to be the Battle of the Atlantic during WWII. Forgive me, as this is a bit involved, but it is the kind of thing at stake here (if on a somewhat smaller scale).

During WWII, the German Navy relied on the Enigma machine. It was a reasonably secure machine, but unbeknownst to the Germans, first the Poles, and then the English, had been regularly cracking both the Wehrmacht and especially the Luftwaffe traffic since before the War. The communications of the Kriegsmarine were harder to crack, though, because although they used the same machine as the Wehrmact and Luftwaffe, the way the KM used it was more secure, and they used 3 extra rotors unique to their service.

The British weren't able to crack the 3 rotor Naval Enigma until they were able to capture a significant number of keys and rotors from u-boats and German weather ships in the Atlantic. Once they were able to regularly read the Naval traffic, they put that capability to use. And it was used often enough that it became obvious to the Germans that something was going on.

For instance, after the sinking of the Bismarck the British decided to sink 5 of the 7 resupply ships in the Atlantic, so that u-boats and surface raiders couldn't use them. They knew where they were and where they were going to be because they were reading the Naval Enigma on a regular basis. They decided to leave 2 ships unmolested, for fear of tipping their hand.

Unfortunately, those two ships happened to run into Royal Navy ships by accident, and were also sunk. This, and other incidents, made the Kriegsmarine suspicious enough of their crypto security that they ordered a complete review. It was determined by the Germans that cryptanalysis of their messages was the least likely cause of their problems (they attributed them to an excellent HF/DF network, which was partly true, and to espionage, especially from French dockworkers and prostitutes).

As a kind of 'back-up', though, they called for the design and introduction of the 4 rotor Naval Enigma, which effectively blacked out the British (and by that time, the Americans) for most of 1942.

The result of the Germans even questioning that Engima might have been broken led them to develop a more secure version (which, eventually, was also broken) that caused more lives to be lost in the Battle of the Atlantic.

Similarly, orders for the Ardennes Offensive of 1944 (ie., the Battle of the Bulge) weren't sent, as was previously done, using radio of any kind (encrypted by Enigma or otherwise). There were some vague indications of a possible attack, but by then the Germans were too cagey to send operational orders for a major offensive by radio. There are no extant records that I know about that indicate the Germans thought Enigma was compromised, yet they were worried enough about the security of it to send their orders by courier, instead of the faster method of radio.

So yes, even an extremely vague discussion of this kind of stuff can lead to the deaths, not just of those in the field, but of ordinary Americans. If they suspect that their communications are being intercepted, whether that is in fact true or not, they will find other, more secure methods to communicate. That makes it harder for us to figure out what they are doing.

I come from this as a former SIGINT weenie: Go ahead and google 'ditty bopper' to find out what I did. The history of this kind of stuff should inform the present. The guy was giving an honest opinion, one informed and reinforced by the history of Signals Intelligence, that open discuss of this matter, even in a vague manner, could cause the deaths of Americans. It might be an indirect, instead of a direct cause, but that danger is there.
8.23.2007 11:51am
Dittybopper:
Anderson:
Kazinski: It is just impossible to conduct foreign intelligence with judges trying to micro-manage the process.

Yeah, and you know what else? It is just impossible to conduct police work with judges trying to micro-manage the process ... Constitutional this and Fourth Amendment that, can't beat the guy up to make him talk ... I tell you brother, this country is going to the dogs and the liberals.


Foreign Intelligence and domestic police work are as different as day and night. Comparing them is ludicrous on the face of it.
8.23.2007 11:58am
snoey (mail):
I'll leave the commentary on the legal aspects of United States v. Reynolds to the experts.

Practically and politically, the fact that it was based on a flat-out lie by the government is why the doctrine is antithetical to a free society.
8.23.2007 12:15pm
Anderson (mail) (www):
Foreign Intelligence and domestic police work are as different as day and night. Comparing them is ludicrous on the face of it.

In some respects, sure. But the point is that it's equally ludicrous to assume that there can be no legal framework for conducting intel work ... that we just have to turn over unrestricted powers and trust those who wield them.
8.23.2007 12:53pm
Kazinski:
Anderson,
The courts Supreme Court has been very clear that foreign intelligence is quite different than domestic police work. They have been very clear from Younstown, to Keith, to Truong, etc. etc. etc., that legitimate foreign intelligence work does not need warrants, Miranda, or any of the other trappings of domestic police work.

That is the law of the land.
8.23.2007 1:13pm
Just an Observer:
As an aside, this interview probably comprises just about the only nationally newsworthy story to appear exclusively in the El Paso Times since, well, maybe the time Pancho Villa's rebels captured Ciudad Juarez across the Rio Grande.

It probably helps that this is the hometown newspaper of House Intelligence Chairman Silvestre Reyes. McConnell was cannily addressing Reyes' constituents primarily, for political advantage after the recess when this subject will be reopened in the House.
8.23.2007 1:49pm
scote (mail):

OrinKerr:
Scote,

I'm curious -- do you think that United States v. Reynolds is anathema to our democracy? That is, do you think that the existing states secrets doctrine is unconstitutional as a violation of the constitutional rights of citizens to know what their government is doing?

Professor Kerr,
You are answering a question with a question. (Well, actually, ignoring a question by positing one of your own.)

You haven't attempted to define a possible test which defines which law enforcement rules, operations and capabilities, which directly impact the constitutional rights of US Citizens, can constitutionally be kept secret on the basis that revelation impacts their effectiveness? It is clear that reasoning has virtually no limits. What *limits* do you propose should apply to such reasoning?

BTW:

I'm curious -- do you think that United States v. Reynolds is anathema to our democracy? That is, do you think that the existing states secrets doctrine is unconstitutional as a violation of the constitutional rights of citizens to know what their government is doing?

Yes, I do. US v. Reynolds is a classic case that demonstrates why secrecy breeds contempt for the truth and the public. More recent revelations have show that there was no secret information in the accident report and the States Secret Privilege was apparently being abused for the purposes of a cover up. Surly, you know this so I'm surprised you would bring this up as an example to contrast with the secret Administration rationales.
8.23.2007 2:55pm
Dilan Esper (mail) (www):
What if the legal rationale has to do with the details of how the surveillance is being done? As you know, the law can often hinge on very specific details; this is particularly true in the surveillance context. Should the government have to disclose the details of what they're doing if its legality hinges on it?

And the answer to the $64,000 question is-- yes. That's right, yes. Why? Because otherwise, the government could always disobey the law, even deliberately and even relating to the most fundamental constitutional freedoms, simply by classifying the program.

I might add that in practice, there are several ways to avoid a widespread disclosure. The government can disclose the information in camera. The lawyers challenging the policy might need a security clearance and might need to agree not to disclose the secrets. The government could choose to stipulate to the facts without admitting them. Or the legality could be litigated first, via a 12(b)(6) motion, and then if the government loses, it could choose whether it wishes to introduce evidence of how the program actually operates.

The point is, the one answer that has to be a nonstarter is that the executive branch gets to violate any law or constitutional provision it wishes to via assertion of the state secrets privilege.
8.23.2007 3:57pm
Bruce Hayden (mail) (www):
I might add that in practice, there are several ways to avoid a widespread disclosure. The government can disclose the information in camera. The lawyers challenging the policy might need a security clearance and might need to agree not to disclose the secrets. The government could choose to stipulate to the facts without admitting them. Or the legality could be litigated first, via a 12(b)(6) motion, and then if the government loses, it could choose whether it wishes to introduce evidence of how the program actually operates.
Or, how about disclosing it to the chairs and ranking members of the intelligence committees of the two Houses of Congress?
The point is, the one answer that has to be a nonstarter is that the executive branch gets to violate any law or constitutional provision it wishes to via assertion of the state secrets privilege.
Oh, wait, that was what was going on.

Seriously, the article pointed out part of the problem here - that one judge said, fine, and the next in the rotation said nope. My understanding is that his position was that a warrant was required if there were a mere possibility of one party being in the U.S., regardless of the probability. And, thus, any time that they couldn't definitively determine the location of both parties (such as for satellite calls), a warrant would be required.

My suggestion for all those who are panicked by the FISA amendments is to help Congress come up with better oversight for the probable renewal of this in six months. I think that they tried to insert some, but some have suggested it wasn't sufficient. Then, fine, come up with something that provides the oversight w/o sacrificing operational security, and doesn't leave the intelligence agencies in an ambiguous situation where one judge says yes and another says no.

Indeed, the more that comes out about what was happening to the program legally, the more the shape of the amendment makes sense from the point of view of what was being guarded against.
8.23.2007 4:55pm
Apodaca:
Kazinski:
The courts Supreme Court has been very clear that foreign intelligence is quite different than domestic police work. They have been very clear from Younstown [sic], to Keith, to Truong [sic], etc. etc. etc., that legitimate foreign intelligence work does not need warrants, Miranda, or any of the other trappings of domestic police work.
Care to cite a specific passage in Youngstown or Keith for the latter proposition?

Also, is there some reason you persist in claiming or implying that Truong (4th Cir.) a) is a Supreme Court decision that b) stands for propositions that are in fact the opposite of what it actually says?
8.23.2007 5:10pm
Bruce Hayden (mail) (www):
The article was an interesting read. One of the points that McConnell addressed was the reverse targeting that seems to be one of the big worries. I never did quite understand how it was supposed to work, actually targeting someone here, but claiming to target someone elsewhere, or whatever. But he pointed out that that that is not what is going on with the TSP. Rather, it appears that it primarily involves telephone numbers - a telephone number is targeted and all traffic to/from that number is intercepted. The one place where I could see indirect targeting is when they go to second and third level targeting, which I seem to remember being mentioned earlier. But McConnell's answer appears to me to be that if a U.S. Person is involved in the U.S. (he didn't really define the term, but I assume he is using the 1801 definition - and note the 1801(f)(1) relationship), they would get a warrant. As he pointed out, it is a numbers game, and it was the numbers that were killing them, with 200 hours of work per warrant. Spending 200 hours per warrant for U.S. Persons (likely) in the U.S. is feasible. 200 hours per warrant for non U.S. persons with both ends likely foreign is not.

One thing that he didn't clarify, is which version of the bill finally became law. He had big problems with several of them. My guess is that he got most of what he wanted. But that may be why the bill used "directed" and the original FISA used "targeted". Indeed, if I could ask him one question, that would be it - did they interpret those two words differently, and if so, how?

And the other point I found interesting was concerning liability, and that immunity was prospective, and not retroactive. I think he made a good argument for the immunity, and it will be interesting to see if they can get retroactive immunity next time around (I suspect not).
8.23.2007 6:57pm
Bruce Hayden (mail) (www):
One disconnect or hole I possibly sensed was the situation where the conversation is international with the target being the foreign side. I think that McConnell made clear that if the target is here (at least legally, making them a U.S. Person), they considered a warrant necessary. But the hole is the opposite, when the call is international with the target on the foreign side. That doesn't fall into his purely foreign category, and has really always been the issue. The amendment would seem to make a warrant not necessary there (as it wasn't if the interception was not deemed to have been made w/i the U.S.)
8.23.2007 7:04pm
Just an Observer:
Bruce Hayden: One thing that he didn't clarify, is which version of the bill finally became law. He had big problems with several of them.

It has been widely reported matter-of-factly that the version that passed was the administration's final language, every jot and tittle.

In this interview, McConnell was referring to Democratic alternatives in the Senate and House, on which he had been negotiating, which both failed. Once the administration secured 60 Senate votes for McConnell's own language, and the Senate recessed for August, the House went along the next day.
8.23.2007 8:30pm
Just an Observer:
But the hole is the opposite, when the call is international with the target on the foreign side. That doesn't fall into his purely foreign category, and has really always been the issue.

You have stumbled onto the truth! The public talking points always emphasised the boogeyman of the foreign-to-foreign scenario, over which there was really no controversy. However, the actual language of the administration bill that was enacted was much more sweeping than that.
8.23.2007 8:36pm
Bruce Hayden (mail) (www):
But the hole is the opposite, when the call is international with the target on the foreign side. That doesn't fall into his purely foreign category, and has really always been the issue.

You have stumbled onto the truth! The public talking points always emphasised the boogeyman of the foreign-to-foreign scenario, over which there was really no controversy. However, the actual language of the administration bill that was enacted was much more sweeping than that.
I will be the first to admit that the bill was a bit more extensive than purely foreign to foreign. But I think that the purely foreign was what panicked them - it appears that this second FISA judge was the one who started requiring warrants when there was a mere possibility that either end of a connection was within the U.S. And it was that that change that really caused the panic.

But historically, the issue has been international, and there mostly foreign target to domestic. Up until that second judge started requiring warrants for what was likely but not with absolute certainty purely foreign intercepts routed through the U.S., the worry had been the international.

What is becoming ever more evident is just what I suggested when the debate first surfaced here at Volokh.com - that the problem was that technology moved interception from 1801(f)(1) to (f)(2). 1801(f)(1) requires a warrant when the target is a U.S. Person in the U.S., and (f)(2) requires one when one party is in the U.S. All because the transmission went from ether based to fiber optics based, and the interception then went from international to domestic.

So, yes, the Administration, et al. here, have been concentrating on the purely foreign angle here. And that was the big thing that was panicking them, but I always read the language of the amendment as essentially (but not exactly) moving them back to where they were when FISA was originally passed. I think that the giveaway is the specific reference to 1801(f) and the inclusion of "directed" there - it was unnecessary under 1801(f)(1), but relevant under (f)(2). Indeed, they could have eliminated the purely foreign problem with the language about the person being likely outside the country, since it was the mere possibility of one party being inside this country that was causing the problem.
8.24.2007 5:26am
cboldt (mail):
Bruce Hayden -- since it was the mere possibility of one party being inside this country that was causing the problem. --
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When the surveillance program is aimed at "one person in the US, one person outside the US, and one person al Qaeda," and the desire is to undertake this surveillance w/o a warrant, there is nearly a certainty that one of the parties is in the US, not a "mere possibility."
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Your "technology moved from 1801(f)(1) to 1801(f)(2)" argument doesn't wash with the statutory language. (f)(1) says it's electronic surveillance if a US person is a target, if the communications are on wireless or on wire. (f)(2) says it's electronic surveillance if the acquisition is from a wire that transports information between the US and another country. 50 USC 1801
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As "radio" transmissions were not part of 1801(f)(2), so acquisition of signal that left the wire to go international was not electronic surveillance -- making the technological move to wire transmission isn't a move from (f)(1) to (f)(2), it's a move from "altogether outside (f)" to (f)(2).
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The word "acquisition" is important to the discussion. It connotes the deliberate retention of something. Surveillance activities are apt to see things they aren't supposed to, and the law provides these views either to be averted or disposed of. If US--foreign stuff was NOT desired from US-based switches (except where a US person's communications were already being acquired pursuant to a warrant), it could be "seen" and discarded. The issue is, the government wants to "acquire" those communications ... the ones that include a US-person on one end.
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I distinguish this from targeting an individual, because it isn't targeting until the government aims to get ALL the communications of a person, domestic as well as international.
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The TSP was electronic surveillance, because it acquired (kept) communications to or from a person in the US, and did so without a warrant.
8.24.2007 9:06am
cboldt (mail):
-- I think that the purely foreign was what panicked them --
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The fact that foreign--foreign was in the scope of "electronic surveillance" when the snoop was on a wire in the US wasn't a "new" revelation in 2007. See NSA testimony to Congress in 2006.
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I'm sure there was heartburn over being held to obey the law, but I personally think the attempt to focus on "foreign--foreign" aims to divert attention from the also important objective of acquiring and retaining certain "foreign--US" communications, that are OUTSIDE of communications to targeted people in the US.
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Ask "Does the government acquire and retain any foreign intelligence communications involving a person in the US, other than communications covered by a court order identifying that person as a target?"
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"If yes, without giving an exact number, is this less than 100? Is it in the thousands?"
8.24.2007 9:24am
cboldt (mail):
I need to back up a little bit on my comment about "acquisition." Reading the statute, "acquisition" and "retention" are two separate things.
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Still, I think there is room in the law to define something between acquisition and retention ... something in the nature of "view by a disinterested party to discern the nature of the communication."
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Companies often acquire unsolicited invention ideas in the mail. The mailroom clerk returns them to the sender, and the company is deemed to have not retained the invention. IF the government's concerns was limited to foreign--foreign plus targeted (existing court order) US persons, an acquisition screen could be used.
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I believe this acquisition screen would be objectionable to the government, for being too narrow. An acquisition screen of the nature I picture would not permit the TSP to operate (TSP = no warrant, retain communications, one person in US, one person outside of US, (at least) one person terrorist suspect)
8.24.2007 9:34am