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The FISA Bamboozlement

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We’ve come to learn that the Bush Administration often suffers reversals in the quiet corners of the government, where public servants trained to respect the Rule of Law actually adhere to their training and stand their ground. The Bush Administration will usually react with a combination of maneuvers—it will find a way to do what it intended notwithstanding the defiant assertion of the law; it will attack the person who stood in its way, frequently looking to thuggish tactics in the process; and it will turn disingenuously to Congress for new tools which allow it to evade the obstacle. Recently, the Administration turned to Congress with an urgent press for changes in the FISA statute. And then some observers, more finely attuned to these issues than I, started asking questions. We should credit the team who figured this out first. Not surprisingly it was Mike Isikoff and Mark Hosenball at Newsweek, two of the sharpest and best connected reporters on the national security beat in Washington:

A secret ruling by a federal judge has restricted the U.S. intelligence community’s surveillance of suspected terrorists overseas and prompted the Bush administration’s current push for “emergency” legislation to expand its wiretapping powers, according to a leading congressman and a legal source who has been briefed on the matter.

The order by a judge on the top-secret Foreign Intelligence Surveillance Act court has never been publicly acknowledged by administration officials—and the details of it (including the identity of the judge who wrote it) remain highly classified. But the judge, in an order several months ago, apparently concluded that the administration had overstepped its legal authorities in conducting warrantless eavesdropping even under the scaled-back surveillance program that the White House first agreed to permit the FISA court to review earlier this year, said one lawyer who has been briefed on the order but who asked not to be publicly identified because of its sensitivity.

So now Bush is back in Congress, asking it to retailor FISA to give him a way around the court’s ruling. The problem remains: we don’t know exactly what happened, or why, and we’re certainly not going to hear any honest account from the Department of Justice.

I haven’t had the time to wade my way through this issue, but for the moment, let me point my readers to the four writers in the blogosphere who have addressed these questions with insight and authority:

Yale Professor Jack Balkin:

Key issues apparently arose from the fact that the Administration wanted to target information coming through fiber optic cables routing to telecommunications switches inside the United States. By targeting these switches, the Administration hoped to gain access to foreign communications that had been routed into the U.S. even though both parties are outside the U.S. If that was all that was at stake, it would be fairly easy to get Congress to agree to amend FISA to allow warrantless surveillance as long as no U.S. persons located in the U.S. were involved.

However, the federal judge apparently objected to more than this. Apparently, the court objected to a procedure in which the Administration sought a “basket warrant” for multiple targets (instead of individual targets as generally required by FISA) and tapped multiple conversations where one end was foreign and it did not know where the other end was located. In some substantial number of cases, the surveillance might route through the United States, or, even more seriously, involve calls with at least one party in the U.S.

Georgetown Professor Marty Lederman:

First, even though the FISA Court has now nixed even the scaled-back version of the NSA program, the Administration presumably is not (not yet, anyway) resurrecting its AUMF and Article II arguments to circumvent FISA. That’s curious — wonder why not.

Second, it must be the case that the NSA’s aim is not simply to surveille foreigners who it already suspects as being part of Al Qaeda. It can obtain a FISA order as to those folks. What it wants, instead, is to be able to intercept foreign communications coming over domestic wires where (i) it does not have probable cause to believe that any of the parties is a terrorist or agent of a foreign power; and (ii) there is a chance that some of the intercepted communications will be with persons in the U.S.

FISA does not allow surveillance where both of those conditions obtain. (Indeed, insofar as the surveillance picks up U.S. persons in such cases, without proof that either party is the agent of a foreign power, it would probably violate the Fourth Amendment, too, at least according to the pre-FISA cases that considered the question.)

George Washington University Professor Orin Kerr:

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

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

And finally, Spencer Ackerman at TPM Muckraker who gives us a series of important insights drawn from the current Congressional negotiations.

I’ll just venture one prediction at this point. The main thrust of the Bush Administration’s push is to say that we should simply trust Alberto Gonzales to manage the program without judicial oversight. Given Mr. Gonzales’s unmatched record for independence, integrity and adherence to the letter of the law, I think we can safely say that Congress isn’t going to buy that.

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