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DOJ's Wainstein: Dem FISA Bill Gives Court Too Much Power
In a conference call with reporters this afternoon, Kenneth Wainstein, assistant attorney general for national security, raised "serious concerns" about numerous provisions contained within the new FISA bill, which the House judiciary and intelligence committees approved today.
But let me focus on the question I brought up this morning: Although the new bill authorizes surveillance of foreign-to-foreign communications, how does the intelligence community know ahead of time whether a surveillance target abroad calls into the United States?
After a FISA Court ruling in the spring that foreign-to-foreign communications passing through U.S. switches or email servers were subject to FISA, both Democrats and Republicans agreed the law needed to be fixed. The Protect America Act signed into law in August did just that. Surveillance targeted at a person reasonably believed to be overseas and in possession of foreign intelligence information would be outside the purview of the FISA Court.
But what about cases where the government is targeting non-U.S. persons located outside the U.S. who might contact people within the U.S.?
Under the new bill, the so-called RESTORE Act, the FISA Court has an up-front role in determining whether the surveillance methods are appropriately targeted at non-U.S. persons. Where the government is targeting non-U.S. persons located outside the U.S. who might contact people within the U.S., the intelligence community does have to get an order--an "umbrella warrant"-- every year from the court authorizing the surveillance. Under PAA, the current law, the court's role is after-the-fact and only kicks in when the government is "clearly erroneous."
"Here, this is not a matter, under the RESTORE Act, of the Court just reviewing procedures outside FISA," Wainstein said when I asked about the distinction. "Rather, this says this surveillance would be under the jurisdiction of the FISA Court. We'd have to file an application, and it could be [for an umbrella warrant], and the FISA Court has to approve, and if not, we have to go down" on that surveillance.
The reason for the new umbrella warrant requirement is that, under the PAA, there's no court review during or after the surveillance to ensure that no U.S. person-related information has been collected as well. Democrats wanted some measure of judicial oversight to protect against abuse, albeit a measure that civil-libertarian critics call weak. But for the Administration any suggestion that the FISA Court play a role in authorizing foreign-centric surveillance is unacceptable.
Update: This post has been revised.
Comments (14)
litigatormom wrote on October 10, 2007 8:23 PM:Under the original FISA statute, ANY surveillance of U.S. persons must be conducted pursuant to a warrant issued by the FISC, whether prior to or within 72 hours of the onset of the surveillance. This rule applied regardless of whether the US person was communicating with persons outside the U.S. -- the relevant question was whether the purpose of the surveillance was to gather foreign intelligence.
So this sort of surveillance is SUPPOSED to be under the jurisdiction of the FISC. The Bush Administration wants to carve out an exception for situations in which the U.S. person is not the "primary target" of the surveillance. This is an exception which swallows the rule. It should NOT be authorized by this Congress.
Don't even get me started on retrospective immunity for the telecom companies.....
Shersby wrote on October 10, 2007 8:26 PM:How can the President not support a law that makes it illegal for people...who...What I'm trying to say is.. Oasis rules! Is not Oasis the greatest British band since the Beatles? Can we not vote on this?!
Dee Illuinati wrote on October 10, 2007 8:50 PM:That US corporation telemarketer from India with a HIGH muslim population could be an IP telephony invitation for eavesdropping.
If there is a desire to allow telecommunications companies to sell data to the NSA then the telecommunications companies should require a caller ID that designates the caller as outside the US and an OPT out policy.
But wait!! Beyond the rub of knowing that the foreign caller is a bad guy before hand, we have the circumstance where corporations, souless entities, don't want this provision as it would illustrate how often companies like H&R Block and Banks use these offshore companies.
I see no problem in a country of origin caller ID so we could get in a donotcall registry or elect to ignore and block the call.
You see a disconect with all the GOP with the exception of Duncan Hunter and Rob Paul of liking the idea of free trade and open borders and immunity for telecommunications companies that broke the law.
I was surprised that the GOP debate missed the issue on 10/09 and would have liked to see the GOP candidates asked how they felt about the FISA legislation.
I really don't want calls from foreigners and have none as family and friends.. I bet most Americans feel the same way.
Why not an OPT OUT policy? It would redcuce the traffic that NSA has to monitor and allow Americans to know that they are still under the constitution when it comes to searches.
The GOP debate was a fraud without this question and only Duncan Hunter seemed to 'get it' that not all free trade was fair teade.
Anonymous wrote on October 10, 2007 8:52 PM:To Shersby
The people will vote soon enough..
dhs wrote on October 10, 2007 9:08 PM:If the Democrats do nothing, the "Protect America Act" expires sometime next year. After that we revert to the original FISA act.
The Democrats, again, are in the catbird seat. They do not have to do anything. When the Protect America Act expires, they can insists that the original FISA act is the law of the land, and is sufficient to protect Americans from terrorist attacks.
Mary wrote on October 10, 2007 9:45 PM:So the whole problem with the "US switches" is, as has been discussed a thousand places other than Congress - the US PERSON half of the calls going through the US switches - - - not the touted "foreign to foreign" calls that go through US Switches.
So calls to US persons going through US communications systems - - - someone in Congress without a copy of the 4th Amendment thinks that these are ok as long as they call them blanket or bundle or basket or program warrants, instead of what they were (are) known in the King(George)'s English - Writs of Assistance.
See how long the "technology" to rifle through everyone's correspondence and mine it all for nuggets that may be worthwhile to someone have been around? If only the OTHER King George had thought to call them the "Protect Britain" Writs of Assistance.
oleeb wrote on October 10, 2007 9:50 PM:This is such a very simple issue and it amazes me that even on this the Democrats do not have the balls to just say no to this utter, complete bullshit.
It ought to be really, really simple to explain to the police staters in the administration: you have to get everything you do approved by FISA court. Period. No FISA review, no power to spy. It's that simple.
This is our liberty folks and that of our posterity. No compromise should even be discussed. But as we know, there's nothing this Democratic Congress won't compromise to keep the big, bad, mean Republicans from calling them yellow. The irony is, of course, that by allowing themselves once again to be cowed by the bullyboys of the right they prove that they are yellow.
Anonymous wrote on October 10, 2007 11:20 PM:Think about this question: " how does the intelligence community know ahead of time whether a surveillance target abroad calls into the United States?"
Someone has to first collect the information; then analyze it; then determine the details; then they determine it requires a warrant; THEN they get a warrant . . .
This, if true, would confirm the US intelligence community must vacuum everything; then they retroactively determine the warrant is required: They're using illegally captured information to then form the basis for the warrant.
Kind of like a police officer making up a story to justify an "emergency" that "satisifies" the "waive to the 4th Amendment"; then, after they're looking at everthing, they keep digging until they find something. The question: Would they make up information to justify a conviction? Yes, we know this because of teh court/deposition/interrogation transcripts that have been fabricated in re GTMO.
The Oracle wrote on October 11, 2007 1:22 AM:What Oceans
parrot wrote on October 11, 2007 2:40 AM:Can Protect US
From Bush/Cheney????
I agree. FISA is only being modified now because the intelligence folks/political arm of the GOP wants to legalize illegal behaviour in the past. If the laws of FISA were simply enforced, there would be no need for these laws.
So, rather than creating new laws the will likely be ignored, why don't we enforce the laws that shouldn't have been ignored in the first place?
Tim wrote on October 11, 2007 9:45 AM:I am pro-FISA protection. But have always been a bit confused about the noise level both sides have taken it to.
Since we have always been able to listen in to foreign-to-foreign communications, I presume that the UK and Israel happily listen in on the US.
If so, all the 3 countries need to do is share intelligence or exchange some officers and all three countries can eavesdrop on everyone anywhere.
In that case, Bush did not need to override FISA and the Congress did not need to get so upset because Bush already has all of this intelligence.
Carnac the Magnificent wrote on October 11, 2007 10:09 AM:Prediction:
Bush will sign the bill after the Conference Committee dutifully removes that pesky provision from the House version which refused immunity to the telecoms. The administration will not release the information demanded by congress regarding the reason the telecoms need immunity. The administration is satisfied with the blanket warrants currently found in the House bill, despite this groaning to the contrary, which is just a show to make people believe they compromised. Don’t be deceived, behind the scenes they are gloating because they got every thing they asked for without a fight.
(save this, I have a 100% accuracy rate)
Carnac the Magnificent wrote on October 11, 2007 10:13 AM:Prediction:
Bush will sign the bill after the Conference Committee dutifully removes that pesky provision from the House version which refused immunity to the telecoms. The administration will not release the information demanded by congress regarding the reason the telecoms need immunity. The administration is satisfied with the blanket warrants currently found in the House bill, despite this groaning to the contrary which is just a show to make people believe they compromised. Don’t be deceived, behind the scenes they are gloating because they got every thing they asked for without a fight.
(save this, I have a 100% accuracy rate)
lthuedk wrote on October 11, 2007 12:03 PM:Should immunity from prosecution be given to the telecoms, responsible Democrats will have to brace for the biggest tsunami the party has ever experienced.
The end of the rope has been reached.
The telecoms should rightfully be tried for Constitutional violations while acting in concert with the junta. The possible price for their collaboration: Insolvency, dissolution, and criminal prosecution. Their attorneys had to have known and so had to have warned complicit bosses of the liabilities and criminality such an egregious violation of the 4th Amendment would cause.
A granted immunity would make Democrats appear guilty of criminal negligence and complicity in a massive cover-up. I've a hunch the people would prosecute Democratic betrayers in a second. Add my name preemptively, thank you.
Discovery, anyone?