June 27, 2008

The FISA Compromise, Part 2

Carroll Andrew Morse

RI Future diarist "forsanri" has posted a long item purportedly taking Congressman James Langevin to task for supporting the Foreign Intelligence Surveillance Act reform that passed the House and is pending in the Senate. After an incoherent shot at Anchor Rising involving aluminum siding salesmen and carpenters (I didn't get it), four points are made in response to an e-mail that Congressman Langevin sent out explaining his position on the new and improved FISA. I'm going to skip the "first point" for now and focus on the final three.

1. The "second point" made in the post is that Congressman Langevin has made a false claim that the new FISA law requires a court-order for conducting surveillance on Americans, wherever they are in the world. This point is based on a factual error made by Forsanri, an error that is directly evident in the portions of the law he excerpted. Forsanri's argument is that an "emergency authorization" provision in the law will allow for a significant volume of non-court approved surveillance of US citizens…

1) AUTHORITY FOR EMERGENCY AUTHORIZATION- Notwithstanding any other provision of this Act, if the Attorney General reasonably determines that--

`(A) an emergency situation exists with respect to the acquisition of foreign intelligence information for which an order may be obtained under subsection (c) before an order authorizing such acquisition can with due diligence be obtained, and
`(B) the factual basis for issuance of an order under this subsection to approve such acquisition exists,

The Attorney General may authorize such acquisition if a judge having jurisdiction under subsection (a)(1) is informed by the Attorney General, or a designee of the Attorney General, at the time of such authorization that the decision has been made to conduct such acquisition and if an application in accordance with this section is made to a judge of the Foreign Intelligence Surveillance Court as soon as practicable, but not more than 7 days after the Attorney General authorizes such acquisition.

Here is Forsanri's analysis…
So, boys and girls, if Attorney General Mukasey says "this is an emergency," he may, without any notification conduct surveillance without a warrant.
Mostly, this shows that Forsanri needs to read more carefully the text that he excerpts. The law makes clear that the Attorney General must immediately notify a FISA judge, i.e. "a judge having jurisdiction under subsection (a)(1)", when an emergency acquisition is authorized, then make the full application for a warrant within seven days. How exactly does an immediate requirement to notify a FISA judge constitute surveillance "without any notification"?

Note also that the new FISA rules involve tougher procedures than what must be followed in "probable cause" cases in the realm of law-enforcement (in probable cause cases, law-enforcement agents are not required to concurrently seek a warrant). Based on the existence of the probable cause exception, does Forsanri 1) make the blanket statement that it is inaccurate to say that searches within the U.S. require a warrant and 2) want to see the exception repealed?

2. The "third point" in the post relates to the situation I discussed with Matt Allen of WPRO radio (630 AM) on Wednesday afternoon: what happens when a non-United States person under surveillance on foreign soil unexpectedly contacts a United States person, in or outside of the United States. Forsanri doesn't go as far as demanding that the intelligence operative hang up and stop listening until a warrant is obtained, but he does want a judge from an American domestic court to eventually review the information collected.

The question here is what exactly is this judge expected to do?

There is no "chain rule" in the FISA law; because foreign surveillance target X contacts American citizen Y doesn't mean that all communications sent or received by citizen Y automatically become fair game. The government still has to go through the FISA procedures for citizens and obtain a warrant to conduct any direct surveillance of Y. So what else does Forsanri want to empower judges to do? Should judges be able to order intelligence agencies to disregard information collected from legally established surveillance operations, when the targets of surveillance make unexpected contacts? Under what principle does anyone claim that it should be left to judges to determine which contacts have intelligence value and which should be ignored?

3. Finally, the "fourth point" from Forsanri's post concerns the immunity provision for telecommunications companies who have assisted and continue to assist the government with electronic foreign intelligence gathering. Unable to get a provision requiring court approval for foreign intelligence operations written into law, the hard-left has taken to suing telecommunications companies who have cooperated with the government, hoping that the telcos will react with a cover-our-butts attitude and demand to see court-orders before co-operating with the government on foreign electronic surveillance operations in the future.

By itself, this is not justification for an immunity provision in surveillance law. What does provide justification for immunity is the fact that telecommunications companies are required by law to co-operate with executive branch requests for information while simultaneously being subject to legal goalposts that can move in unpredictable directions. As the prime example of this, recall the specific reason (neglected in Forsanri's analysis) why a revision of the Foreign Intelligence Surveillance Act became necessary in the first place. In April of 2007, a FISA judge, in a decision without precedent and never released to the public, ruled that any electronic communications routed through the US -- including communications between two non-United States persons, both outside of the US, that just happened to pass through US-based equipment -- had to be treated according to domestic intelligence-gathering rules and therefore could not legally be brought under surveillance in the absence of a court order.

Potentially, this ruling means that foreign nationals communicating with other foreign nationals outside of the US have a cause of action in an American court for communications with other foreign nationals outside of the US, for communications occurring between 1978 and mid-summer 2007 (when the passage of the Protect America act closed the suddenly-created FISA loophole). By acceding to telecom immunity, the President and the Congress are making sure that accountability for the form and execution of foreign surveillance law is where it belongs, not with risk-avoiding decision-makers at telecommunications giants, but with the government branches that are accountable to the public. If advocates of maximal domestic court involvement in foreign surveillance operations want to make their preferred surveillance procedures law, they should make a persuasive public case for changing the law, instead of seeking to punish those who are do their best to co-operate with the law in its current form.