The Specter Bill's Changes to the Basic Definitions of FISA:
Senator Specter's bill on the NSA domestic surveillance program has been much in the news lately, but there is a very important part of the bill that hasn't been covered much: the bill's changes to the definition of the key terms in FISA. Based on my study of the bill, it seems that the Specter bill would bring changes to several of the basic principles of FISA that would considerably alter the law's scope. In this post, I'd like to review some of those changes I've found and suggest what they might mean for the scope of government surveillance powers in national security cases.
First, some background. The basic idea of FISA is that it requires the Executive Branch to get a warrant to conduct "electronic surveillance," and permits the government to get a long-term, lower-threshold monitoring order when it is monitoring "an agent of a foreign power" (such as a foreign spy). So the most basic questions under FISA are what is "electronic surveillance," and who is an "agent of a foreign power"? These definitions are found in Section 101 of FISA, codified at 50 U.S.C. 1801.
Under the current version of FISA, "electronic surveillance" is quite broad, and "agent of a foriegn power" is relatively narrow. As a result, FISA imposes a fairly comprehensive regulatory scheme over national security surveillance.
It's kind of hard to explain this without some details, so here are the details. (If you want to skip to the punchline, scroll down a bit.) Here is the statutory definition of electronic surveillance:
An "agent of a foreign power" is defined as follows:
That's the current law, at least, which is pretty much what we've had for the last 30 years or so. But check out what the Specter bill would do to the basic definitions of FISA. The changes appear at page 25, the beginning of Section 9 of the latest draft. First, the existing 4-part definition of "electronic surveillance" is eliminated, and replaced with this shorter and also narrower definition:
The definition of contents is changed, as well: instead of "any information concerning the identity of the parties to such communication or the existence, substance, purport, or meaning of that communication," the Specter bill would borrow the Wiretap Act's definition, "any information concerning the substance, purport, or meaning of that communication," excluding information that merely contains the identity of the parties and the existence of the communication.
Finally, the definition of "agent of a foreign power" is amended, too, so that it includes a non-U.S. person — that is, someone other than a U.S. citizen or permanent resident alien — who "otherwise possesses or is expected to transmit or receive foreign intelligence information inside the United States."
So what does this all mean? Well, to me it says that these are some pretty important changes. Start with the change in the definition of "agent of a foreign power." That used to mean a spy or terrorist, and the government needed probable cause to believe that the bad guy was in cahoots with a foreign government or terrorist organization to get the monitoring order. The Specter bill would bring a much broader approach: as long as the person is not a U.S. citizen or permanent resident alien, the fact that some one is expected to receive foreign intelligence info -- that is, info about national security threats or about foreign governments -- would be enough to treat them as agents of a foreign power. You can see why this would make an enormous difference in an era of easily-forwarded Internet communications: the government could follow the trail of data, and could start monitoring the folks who were along the trail so long as they were not U.S. citizens or permanent resident aliens. Maybe this is a good idea, and maybe it's a bad idea. Either way, it strikes me as a pretty important change.
The changes to the definition of "electronic surveillance" are even more important. Part of the changes are presumably needed to authorize the NSA program; much of the program would seem to be excluded from the definition of "electronic surveillance." But more broadly, note that under the new definition, monitoring does not constitute electronic surveillance if a) the person monitored has no Fourth Amendment "reasonable expectation of privacy" or b) no warrant would be required to conduct that monitoring in the criminal context.
This explicit incorporation of Fourth Amendment law as the sole test of the statute is troubling, I think, because the Fourth Amendment standards for electronic surveillance are tremendously murky right now. For example, courts have held that you don't have a reasonable expectation of privacy in calls to or from cordless phones, and they have used reasoning that would also appear to apply as well to cell phone calls. (You have statutory privacy protection, which is much stronger than constitutional protection, but not constitutional protections.) If you don't have a reasonable expectation of privacy in your cell phone calls, which those cases suggest is the case, Specter's bill would mean that the NSA can tap every cell phone in the country of every US citizen, for entirely domestic calls, all without a warrant. This monitoring wouldn't be "electronic surveillance" because (based on the cordless phone cases) the Fourth Amendment doesn't apply.
Similarly, right now it's really uncertain whether one can have a reasonable expectation of privacy in your e-mail, and if so, when such protection exists. (Again, there is statutory protection, but constitutional protection is really uncertain.) Some scholars suggest that there is such protection, others suggest there isn't; as a matter of doctrine, the answer is essentially unknown. But if the statutory standard hinges on constitutional protection, and it may be that there isn't any constitutional protection at all, then it may be that there is no statutory protection either. And since the government's applications are secret, we wouldn't know it.
What would happen, I would assume, is that DOJ and the FISA court judges would reach some kind of understanding about how the Fourth Amendment applies to these new technologies. But no one else would get to know what that understanding is, and as a result no one else would know how the law actually would apply. (Some of this presumably happens now, as parts 1, 3, and 4 of the current definition incorporate this approach: but under current law, part 2 is the broader definition, and does not incorporate the Fourth Amendment standard.)
In sum, my sense is that the Specter bill would make some pretty significant changes to some of the basic principles of FISA. Some of the changes may be good, others bad, and some are just quite uncertain (a constant problem with FISA, as it's hard for outsiders to get an accurate feel for the impact of specific legislative reforms on secret monitoring). But however you look at it, it's pretty clear that the Specter bill does a lot more than just subject the NSA program to constitutional review. That's my sense of it, at least; if you think my analysis is off, please let me know.
First, some background. The basic idea of FISA is that it requires the Executive Branch to get a warrant to conduct "electronic surveillance," and permits the government to get a long-term, lower-threshold monitoring order when it is monitoring "an agent of a foreign power" (such as a foreign spy). So the most basic questions under FISA are what is "electronic surveillance," and who is an "agent of a foreign power"? These definitions are found in Section 101 of FISA, codified at 50 U.S.C. 1801.
Under the current version of FISA, "electronic surveillance" is quite broad, and "agent of a foriegn power" is relatively narrow. As a result, FISA imposes a fairly comprehensive regulatory scheme over national security surveillance.
It's kind of hard to explain this without some details, so here are the details. (If you want to skip to the punchline, scroll down a bit.) Here is the statutory definition of electronic surveillance:
"Electronic surveillance" means—"Contents" are in turn defined as "any information concerning the identity of the parties to such communication or the existence, substance, purport, or meaning of that communication."
(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;
(2) the acquisition by an electronic, mechanical, or other surveillance device of 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, but does not include the acquisition of those communications of computer trespassers that would be permissible under [the Wiretap Act]
(3)the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or (4)the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.
An "agent of a foreign power" is defined as follows:
"Agent of a foreign power" means—So what does this all mean, in plain English? Well, the basic idea is that the government can't monitor content or non-content information about people in the U.S. without a court order, and it can only get a long-term monitoring order to monitor people if there's probable cause to beliebve they are spies or members of terrorist groups.
(1) any person other than a United States person, who— (a) acts in the United States as an officer or employee of a foreign power, or as a member of a foreign power as defined in subsection (a)(4) of this section; (B) acts for or on behalf of a foreign power which engages in clandestine intelligence activities in the United States contrary to the interests of the United States, when the circumstances of such person’s presence in the United States indicate that such person may engage in such activities in the United States, or when such person knowingly aids or abets any person in the conduct of such activities or knowingly conspires with any person to engage in such activities; or
(2) any person who— (A) knowingly engages in clandestine intelligence gathering activities for or on behalf of a foreign power, which activities involve or may involve a violation of the criminal statutes of the United States;
(B) pursuant to the direction of an intelligence service or network of a foreign power, knowingly engages in any other clandestine intelligence activities for or on behalf of such foreign power, which activities involve or are about to involve a violation of the criminal statutes of the United States ;
(C) knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power;
(D) knowingly enters the United States under a false or fraudulent identity for or on behalf of a foreign power or, while in the United States, knowingly assumes a false or fraudulent identity for or on behalf of a foreign power; or
(E) knowingly aids or abets any person in the conduct of activities described in subparagraph (A), (B), or (C) or knowingly conspires with any person to engage in activities described in subparagraph (A), (B), or (C).
That's the current law, at least, which is pretty much what we've had for the last 30 years or so. But check out what the Specter bill would do to the basic definitions of FISA. The changes appear at page 25, the beginning of Section 9 of the latest draft. First, the existing 4-part definition of "electronic surveillance" is eliminated, and replaced with this shorter and also narrower definition:
(f) electronic surveillance means --(Note that all of the definitions of the Specter bill are as transcribed my me as the version of the latest text has cut-and-paste functions disabled. So errors in transcription are possible.)
(1) the installation or use of an electronic, mechanical, or other surveillance device for the intentional collection of information concerning a particular known person who is reasonably believed to be in the United States by intentionally targeting that person under circumstances in which that person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes; or
(2) the intentional acquisition of the contents of any communication under circumstances in which that person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States.
The definition of contents is changed, as well: instead of "any information concerning the identity of the parties to such communication or the existence, substance, purport, or meaning of that communication," the Specter bill would borrow the Wiretap Act's definition, "any information concerning the substance, purport, or meaning of that communication," excluding information that merely contains the identity of the parties and the existence of the communication.
Finally, the definition of "agent of a foreign power" is amended, too, so that it includes a non-U.S. person — that is, someone other than a U.S. citizen or permanent resident alien — who "otherwise possesses or is expected to transmit or receive foreign intelligence information inside the United States."
So what does this all mean? Well, to me it says that these are some pretty important changes. Start with the change in the definition of "agent of a foreign power." That used to mean a spy or terrorist, and the government needed probable cause to believe that the bad guy was in cahoots with a foreign government or terrorist organization to get the monitoring order. The Specter bill would bring a much broader approach: as long as the person is not a U.S. citizen or permanent resident alien, the fact that some one is expected to receive foreign intelligence info -- that is, info about national security threats or about foreign governments -- would be enough to treat them as agents of a foreign power. You can see why this would make an enormous difference in an era of easily-forwarded Internet communications: the government could follow the trail of data, and could start monitoring the folks who were along the trail so long as they were not U.S. citizens or permanent resident aliens. Maybe this is a good idea, and maybe it's a bad idea. Either way, it strikes me as a pretty important change.
The changes to the definition of "electronic surveillance" are even more important. Part of the changes are presumably needed to authorize the NSA program; much of the program would seem to be excluded from the definition of "electronic surveillance." But more broadly, note that under the new definition, monitoring does not constitute electronic surveillance if a) the person monitored has no Fourth Amendment "reasonable expectation of privacy" or b) no warrant would be required to conduct that monitoring in the criminal context.
This explicit incorporation of Fourth Amendment law as the sole test of the statute is troubling, I think, because the Fourth Amendment standards for electronic surveillance are tremendously murky right now. For example, courts have held that you don't have a reasonable expectation of privacy in calls to or from cordless phones, and they have used reasoning that would also appear to apply as well to cell phone calls. (You have statutory privacy protection, which is much stronger than constitutional protection, but not constitutional protections.) If you don't have a reasonable expectation of privacy in your cell phone calls, which those cases suggest is the case, Specter's bill would mean that the NSA can tap every cell phone in the country of every US citizen, for entirely domestic calls, all without a warrant. This monitoring wouldn't be "electronic surveillance" because (based on the cordless phone cases) the Fourth Amendment doesn't apply.
Similarly, right now it's really uncertain whether one can have a reasonable expectation of privacy in your e-mail, and if so, when such protection exists. (Again, there is statutory protection, but constitutional protection is really uncertain.) Some scholars suggest that there is such protection, others suggest there isn't; as a matter of doctrine, the answer is essentially unknown. But if the statutory standard hinges on constitutional protection, and it may be that there isn't any constitutional protection at all, then it may be that there is no statutory protection either. And since the government's applications are secret, we wouldn't know it.
What would happen, I would assume, is that DOJ and the FISA court judges would reach some kind of understanding about how the Fourth Amendment applies to these new technologies. But no one else would get to know what that understanding is, and as a result no one else would know how the law actually would apply. (Some of this presumably happens now, as parts 1, 3, and 4 of the current definition incorporate this approach: but under current law, part 2 is the broader definition, and does not incorporate the Fourth Amendment standard.)
In sum, my sense is that the Specter bill would make some pretty significant changes to some of the basic principles of FISA. Some of the changes may be good, others bad, and some are just quite uncertain (a constant problem with FISA, as it's hard for outsiders to get an accurate feel for the impact of specific legislative reforms on secret monitoring). But however you look at it, it's pretty clear that the Specter bill does a lot more than just subject the NSA program to constitutional review. That's my sense of it, at least; if you think my analysis is off, please let me know.
I expect that Sensenbrenner will control what Congress eventually does here.
Your general rule does not follow from the language of the statute. You don't talk about "particular" people. You don't talk about "known" people. You don't elaborate on the specifics and limitations of your phrase "in the U.S." I could go on and on.
FISA has so many blatant loopholes that it's laughable. Opponents of the NSA program (and I'm not saying that the author is one, because he's discussing proposed amendments to the existing statute) seem to never want to talk about these loopholes, because it's simply a lot easier to wail about the "illegal actions of the Bush Administration." Any half-decent lawyer, however, can read the statute and realize that an awful lot is permitted by it. Only if we have a repeat of the late '70's, with Democratic control of the White House, Senate, and House, and a new, dread fear of the Executive, will we see any serious expansion of FISA to make illegal that which is currently legal. This is not even a good campaign issue, if you look at the polls.
As far as the legislative manoueverings go, I'm not competent to discuss, but I'll enjoy the result no matter what it turns out to be.
What the NSA is doing is not Electronic Surveillance as defined by FISA.
(2) the intentional acquisition of the contents of any communication under circumstances in which that person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States.
This is the part of the changes that makes it explicit that what the NSA is doing NOW is NOT covered by FISA.
If I am wrong about how I am reading the definations I would be happy to learn how. I cannot understand why the NSA hasn't been using this. One side the side that they are targeting is outside the US. It does not matter where or who the other side is. They don't need a warrent under FISA. You CANNOT expect them to get a warrent for BOTH sides of a wiretap.
I rather suspect that Specter's bill will have a lot of support within "the GOP base" -- unless they believe their leadership's reverse-spin propaganda that it represents a significant "compromise" on the part of President Bush.
It would be hard to imagine how anything the House would pass could be more deferential to the wishes of Bush and Cheney.
In fact, Sensenbrenner has endorsed legislation (HR 5825) that includes technical provisions similar to those discussed in Orin's post above about Specter's bill. But the House bill does not include the overriding language Specter, Bush and Cheney have agreed to, which essentially would make FISA optional and explicitly defer to the President's inherent "constitutional" authority. Nor does the House bill allow DOJ optionally to submit the current NSA program to the FISA court for its limited review and blessing, as Specter's bill does.
I'm not sure I follow your arguments. As for Mark, the deifnition of "electronic surveillance" has four parts, and satisfying any one part is enough; so your point doesn't apply to the broadest part, such as (2); the fact that it applies to other parts would not seem to matter. As for Dan, can you restate your argument?
Perhaps the true words of the Fourth Amendment should have been used in this statute instead of the phrase "reasonable expectation or privacy." The language of the fourth amendment is a command: The right of the people to be secure in their (houses, etc...)shall not be infringed." The reasonable expectation of privacy test is just that - a judge-made test- to determine whether one has a legitimate fourth amendment right -i.e, to determine standing for 4th amendment purposes.
Thus, if im holding someone else's purse which is found to contain drugs, and i am charged with them...generally i cannot contest the validity of the search in a pre-trial motion to quash/suppress since i don't have a legitimate expectation of privacy in the area searched (the purse). It's not mine - someone else (the owner) can contest the search if she is charged with a crime.
To say average people do not have a legitimate expectation of privacy in their
"private" phone calls is absurd. So hopefully it wouldnt make much difference which test is used. But i assume many prosecutors and gov. lawyers will make the claim that this is a right that citizens do not reasonably expect to have (so long as their name is not intercepted as well- just the time, date, and numbers dialed.) We hand that information over to the phone companies already, after all.
And to say that the NSA doesnt pick up names associated with the calls it intercepts so its okay is a BS argument. The number dialed from and the number called can easily and quickly be cross checked to any other numerous gov.t databases to get the personal subscriber information. Just because one link in the executive branch doesnt commit all acts necessary for a violation of the law, doesn't mean two working together (DEA - NSA) or (FBI-NSA) can't accomplish together what one working alone does not. Wasn't one of the goals of the post 9-11 intelligence overhaul to get all gov.t databases linked to each other for cross-referencing purposes such as this??
Wait, wait, wait. This seems completely wrong.
What is stopping law enforcement from tapping every single cell phone in America today? I mean for regular law enforcement, not foreign intelligence. Isn't it those very statutes you so cavalierly dismiss (since there is no reasonable expectation of privacy, the 4th Amendment doesn't protect me)? Nothing here changes them, does it? I mean, Specter's bill doesn't create an exception to those laws does it?
It seems to me to be saying that we get the same level of protection against the NSA intercepting our cell phone calls as we do against every single other law enforcement agency intercepting our cell phone calls. Am I wrong?
Yes, I believe you are wrong. Under the Specter bill, 18 U.S.C. 2511(2)(f) would be rewritten to say: "Nothing contained in [the Wiretap Act or other laws regulating criminal investigations] shall be deemed to affect the acquisition by the United States Government of foreign intelligence information that is permitted under a Federal statute or the Constitution of the United States."
As I read this, it says that national security monitoring that is okay under FISA or constitutional inherent authority would be okay under the Wiretap Act. Or do you think the NSA will be getting Title III wiretap orders to conduct monitoring?
Here's another question for you: how does the NSA know if the call is going to a cellular or cordless phone? Let's say that, at my apartment, my phone number rings at a regular corded phone in my kitchen, and at a cordless phone in my bedroon. How does the NSA know which one I pick up? Monitoring one of those calls is "electronic surveillance" and one isn't. They can't tell which is which that from the AT&T main call center in San Francisco...
As I understand it, the reason you have no expectation of privacy in a cordless or cellular phone is that anybody could just be sitting outside your house with a radio receiver picking up the same radio signals that your phone is picking up, right? But this kind of posits that the interception would be via such a radio receiver, not a tap at the main call center. Even if you are correct theoretically, it wouldn't seem to apply to the types of programs we are talking about, right?
One other note, under the current FISA, there is only protection for the CONTENTS of cordless/cellphone conversations, not for any other information about them, right? (Under (2) of the definition of electronic surveillance.)
Is there any problem with the above?
Where the problem (some say) is when the other non-target end is in the US. Nobody that I have heard of has any problem as long as both ends are international. What you and others are saying is that because one end is in the US a FISA warrent FOR THAT US NUMBER is required.
Am I wrong?
My first point is that the NSA doesn't need a FISA warrent for the Target end because the Target is not "a particular, known United States person who is in the United States". Since the target is a international cell phone number (and may be a throw away phone) FISA doesn't apply. Everything about FISA has to do with "electronic surveillance" within the US. A international phone number can be assumed to be outside the US so 3 doesn't apply. And I am assuming that the station taping the call isn't in the US and the NSA is not taping a wire anyway so 2 doesn't apply.
Anything wrong with this point?
Second I am saying that because the non-target end is unknown (NSA just has a number) this doesn't meet the definition of "electronic surveillance" under FISA either because the non-target end is not "a particular, known United States person who is in the United States". Neither of the other two parts apply either.
Anything wrong with this point?
Third you don't need a warrent for BOTH ends of a wiretap. A warrent for both ends of a wiretap is silly.
You just need a warrent for the Target end if a warrent is required. By my first point FISA does not apply and therefore a FISA warrent is not needed for the Target end. Since NSA can tap the Target end without a warrent it doesn't need a warrent for the non-target end.
Anything wrong with this point?
This seems simple and straight forward to me. What am I missing if anything?
In late 1941 members of the Japanese consulate in Hawaii took long walks on the hillsides surrounding the harbor, then transmitted to Tokyo a list of the ships at anchor. Suppose they were short handed and hired Fred to gather the information. It involves only walking on public land and reporting information in plain site. No law was broken, no conspriacy, no terrorism, and Fred doesn't know he is doing anything wrong. Neither today is the guy hired to take photographs of Al Qaeda's next target. Under current definitions, these guys are not agents of a foreign power, but the US obviously had a need to know that Japan was going to bomb Pearl Harbor and today we need to know the next target as well. It doesn't matter if it is "knowingly" or illegal. It matters that he "otherwise possesses or is expected to transmit or receive foreign intelligence information" even if it is innocent and unknowing.
Bill and his three brothers are middle level Al Qaeda agents travelling around the world. Once a week they call home to their mother, who recently moved to Ohio. Tracing calls to Mom helps the NSA keep track on the movements of Bill and his brothers, but nobody can reasonably call Mom an "agent of a foreign power" under current FISA definitions. Again, in intelligence unlike criminal justice, your most valuable leads may come from perfectly innocent people with whom your target communicates. So the new wording better reflects the difference between national security and criminal justice investigatons.
electronic surveillance means:
The current NSA Program may not fall under the scope of FISA as it is currently written. If no specific known, identifed US person was the target (1), and the communications were intercepted outside the US (2), then FISA doesn't cover the program and no warrant was required. A key feature of the Specter Amendment was supposed to be that it put such programs under a general program review of the FISA courts. To do that, the definition of electronic surveillance should have been broaded. However, as listed here the new (1) is basically old (1) and the new (2) is old (3), so it appears that the new law drops the old parts (2) and (4) from the law without broadening its scope. The NSA program may still not fall under the amended FISA any more than the existing law.
To put the current NSA program clearly within the scope of FISA, you have to eliminate the restiction "if such acquisition occurs in the United States" from item (2) in the old definition (making it wider), rather than, as appears to have been done here, removing (2) from the law entirely (making it weaker).
Under your hypothetical above -- relating to "Fred" performing acts unknowingly for a foreign power -- even under Specter's bill it would make a difference if he is a citizen or legal alien (aka a "United States person") or not. The expanded language you cite above from Specter's bill does not apply to such persons, only to foreigners. A U.S. person could still be an "agent of a foreign power" only by "knowingly" doing certain things.
So if your Fred is a citizen, he still would not so easily fall under that definition.
There are other provisions of Specter's bill, however, that would enable the government to wiretap Fred -- either within FISA's scope or outside of it.
As I have repeatedly pointed out here (and elsewhere - see my blog) technology changes have pushed NSA surveilance from 1801(f)(1) to (f)(2) because it is technologically infeasible to tap international communications into or out of this country other than at switches physically located within the U.S. And what is notable about the proposed amendment here is that it is precisely (f)(2) that gets the major facelift. As it presently reads, it doesn't matter who the targetted person is, or whether the person in the U.S. is here legally. Rather, all that is important is that someone is being tapped within the U.S. So, if someone illegally enters this country and calls OBL hiding in his cave on the Pakistan/ Afganistan border to report that he arrived here safely, it would be illegal to tap that call under the current wording of FISA, whereas it would be perfectly legal under the current (f)(1) if the call were, for example a typical satellite call - because, excluding Iridium, communications satellites are not located over the U.S.
Realistically, a big majority of Congress are not going to vote to shut down the NSA program, since if doing so might conceivably result in the next 9/11 type or scale attack. This seems to me to be a good start at a viable compromise that keeps the program active (and now within the letter of the law), without totally gutting it.
I think it is useful to consider these technical changes to FISA's definitions separately from the rest of Specter's bill, which is certainly not a "compromise" in any honest sense.
To the extent that the changes in technical definitions discussed above are intended merely to make FISA "technology-neutral," and effectively restore the underlying intent of FISA from 30 years ago, I think they comprise an interesting policy proposal.
After reading Orin's analysis above, I wonder if the effect of even just these definition-changes actually goes further than that, however. I expanded on that reaction in commenting at his cross-post at OrinKerr.com.
That is the biggest hole with your reasoning. Your assumption is apparently not true. From what we know from the NYT reporting, the NSA program does include intercepts at U.S.-based network switches. So under current law, FISA's definitions apply.
Because it is infeasible to tap international communications via fiber optics anywhere else besides at the U.S. based switches, whereas it used to be feasible, interception, by necessity, is ruled by 1801(f)(2) and 1801(f)(1) is now effectively irrelevant.
I do think your nomenclature -- "pro-war faction" and "anti-war faction" -- is just wrong. Critics of the President's surveillance program are not against the "war" effectively declared against al Qaeda in 2001.
But making allowances for that spin, I find your comments breathtaking when you say a "compromise ... between the pro-war faction and the President" is intended merely to allow the current NSA surveillance and "expand it a bit."
Were you referring just to the technical-definitions section of Specter's bill that Orin's post above explores, or to the whole bill?
If you mean the latter, your characterization is risible. Other provisions of Specter's bill would repeal the core of FISA's requirements by making them all optional, and explicitly defer to executive authority. These provisions would comprise a capitulation by Congress to the president in this matter.
If you mean the former, Orin's analysis suggests that even the rewritten definitions themselves might go so far as to remove all cell phone calls from FISA's scope. That seems more than a "bit" of a change.
I think that you can see this in what appears to be the intent of the legislation, which is to throw both pro-program camps something. Those who think it already legal get the language about presidential authority, and those who think it illegal right now, but want to see it continue, see statutory changes that would pull the program within FISA. And while they are all at it, it potentially sidesteps the possible adoption of Jackson's concurrence in the Hamden case by arguably removing it from category III.
If we stick with just what Orin posted here, I would suggest that most of the discussed changes here are necessary to bring the NSA program within the letter of FISA, as it currently exists and to address the threat at hand. So far, I think that the 1801(f)(2) proposal is reasonable, as it effectively eliminates the problem that the NSA has a higher burden in some respects under FISA than the FBI has for domestic surveilance.
And that is another point here - why should the NSA have a higher burden than the FBI has, given the very different missions of the two agencies, and, importantly to me, the much greater potential threat to individual liberties I see with purely domestic law enforcement surveilance?
Orrin suggested that 4th Amdt. jurisprudence is in a muddle right now. Fine. But isn't one of its tenets still a requirement for a reasonable expectation of privacy? I see the two going hand-in-hand here - except that there are exceptions to the 4th Amdt. that may allow searches even in the face of a reasonable expectation of privacy (such as hot persuit).
But, as is obvious, I am not an expert here, and many of you are, so I would be interested in situations that rebut my previous point, and, in particular, situations where a warrant would be required for law enforcement purposes, but there was no reasonable expectation of privacy. What I am toying with right now is the question of when one party has a reasonable expectation of privacy, and the other does not. And maybe that is where the cell phone scenerio comes in - any more, when we make calls, we often don't know whether the call will end up at a cell phone or on a land line (and I fall into that category myself - if you call my landline number, and I don't answer, it forwards automatically to my cell phone).
I think your political breakdown of who's who still omits the group of critics who simply argue that the law should be followed as a governing principle. But I appreciate your acknowledgement that no one seriously opposed to the current surveillance on legal grounds was even a party to the so-called "compromise."
As for your analysis of current surveillance law, I am open to correction but I believe it contains some fundamental flaws:
1) It is not the case that FISA just regulates the NSA and the Wiretap Act (Title III) just regulates the FBI. The fact that the NSA is playing in the domestic sphere at all today shows how far we have come from FISA's intent, which was to exclude from its coverage the NSA's traditional mission of intercepting foreign intelligence. The agency traditionally tasked to investigate foreign-intelligence activities within the country is the FBI, and it is DOJ that interfaces to the FISA courts.
Both statutes regulate all government agencies, as well as all non-government actors. Electronic surveillance by anyone is unlawful under these statutes, taken together -- except for certain clearly defined exceptions for criminal law-enforcement or intelligence-gathering.
2) Even if we restate your assertion that "the NSA has a higher burden in some respects under FISA than the FBI has for domestic surveilance" to mean "intelligence surveillance has a higher burden than law-enforcement surveillance," it does not hold up.
That is because both the Wiretap Act and FISA create statutory protections beyond those strictly contained by the Fourth Amendment. The specific requirements in each statute vary, but they each go beyond what the Fourth says. Even though the Wiretap Act was intended to track those constitutional requirements, the act is not limited to that.
So, for example, the definitions of electronic surveillance covered by Title III are not expressly dependent on a "reasonable expectation of privacy." Rather, that statute starts by broadly outlawing surveillance of wire communications in interstate commerce, and then provides a detailed exception by which law-enforcement officials can apply to courts for warrants. Not only is the statutory definition of covered "wire communication" not directly dependent on a Fourth Amendment standard, law-enforcement warrants are limited to certain named underlying offenses.
"the interception has to be at U.S. based switches these days to be even remotely effective. It can't work viably anywhere else in the world when we are talking fiber optics, which currently carry the bulk of international communications to/from this country." To the contrary, the very large bandwidth of fibre has tended to consolidate communications through a smaller number of links. Traffic between the US and the Middle East or Pakistan now flow through three US switching facilities (Boston, NJ, and DC), then from those facilities through cross Atlantic fibre cables to Lands End, England where they switch onto the "cable that flattened the World", the international fibre cable that runs from England around Spain, through the Med, across Egypt, and then on to Bangalore India. Along the way it connects to all the countries in the Mid East and Pakistan. So all the NSA has to do is get intercepts from MI-6 (England), the Egyptians, or by tapping the cable itself. They can get a lot of traffic from the Pakistani ISI, but that would only be for Pakistan and Afghanistan.
Having said that, there is a big loophole. FISA only covers the interception of communication, not its routing. The NSA equipment installed in US switching facilities may be there to switch, not to tap. All you have to do is to route calls to Al Qaeda numbers through one of the redundant alternate paths between here and there, say through Tel Aviv. Then if it happens that Mossad intercepts the commmunication, it still has been collected outside the US relative to (f)(2).
You are assuming no filibuster in the Senate, right? Or are there enough pro-program votes to overcome a filibuster, regardless?
I don't see Democrats (plus Chafee and Jeffords) having a problem filibustering a bill that would allow (if you accept Orin Kerr's analysis, and if I am reading it right) warrantless taps of any cell phone call made (or email message sent) inside the United States, even by U.S. citizens.
It still takes 60 votes just to get to a vote in the Senate. Last time I checked, the GOP only had 55, and not all 55 were reliable. And that was when the president was popular and when we weren't 3 months away from an election.
You are quite wrong, sir. From the NYT story, "DOMESTIC SURVEILLANCE: THE PROGRAM; SPY AGENCY MINED VAST DATA TROVE, OFFICIALS REPORT," 12/24/2005:
Now, you may choose to disbelieve the report because it was based on unnamed sources and neither confirmed nor denied by the government. (That is why I attributed it to the newpaper's reporting.) But the NYT was reporting the interception at U.S.-based switches as fact, not "speculation."
I don't quarrel with your own speculation that at least some traffic theoretically might be collected at locations abroad. But the NYT did report that NSA surveillance does include interception here.
If I must wait while the courts dither, to determine if I have "standing" to enjoy a Fourth Amendment "reasonable expectation" of a right to privacy in my home, papers, and personal effects, then I have no right to privacy, and there effectively is no Fourth Amendment. And, in effect, no courts.
If I must wait for congress to dither, to determine whether they will excercise oversight over intelligence practises of the executive, while the executive monitors all my communications in all media without warrants based upon probable cause, then there is, in effect, no congress, no oversight, and no Fourth Amendment.
If I must wait for the exective to dither, to decide which part of which law to enforce and which to ignore, then there is, in effect, no executive. And no Constitution. And no Bill of Rights.
As a citizen I have just as much responsibility to see to it the laws are faithfully executed as the president, not as a matter of elective process, but of civic duty. Due process is not a matter for judges, congresspersons, or executive branch officials - it is the personal business of each citizen.
When secret courts issue secret opinions and adjudications (and set secret precedents) what effect does this have on the citizen's stake in a democratic republic? Therein lay the roots of destruction of the expectation of legitimately due processes.
When the legislative branch must continually pass laws that restate the commands and directives manifest through the plain language of the Constitution, one must wonder why. Did the Constitution stutter?
We live today under effective martial law, never declared. The courts ignore it, having been packed by parties rife with the corrupt influence of campaign finance and corporate
briberylobbying, deigning only to decide those issues important by yardicks of political fealty rather than good governance. The executive branch holds itself accountable to no one but the currentdictatorvice-president, elected through a process rife with the effective fraud of technical registration challenges and judicial tampering. The congress ignores it, worrying only over the next election cycle, fund raising, preserving incumbency, and hoping to sell enough voters on the false appearance that they care about democracy, and civil welfare, and putting forth a believable enough public image to get reelected.All fiddle while democracy burns.
If the current president thinks he can pick and choose which laws to obey, without the rest of the citizens doing the same, he (and his boss, the current vice - president) are living in a dream world.
If the current congress thinks their inaction at intelligence oversight and the policing of current abuses will result in good governance, they are mistaken. Such neglect may preserve their incumbency, but will not preserve the existing form of government.
If the courts think the citizens looking for real democracy, representation, due process, and a responsive judiciary - in short, the things the Constitution purports to provide - if the judiciary thinks the People of the United States are going to wait much longer before forming another government, which could offer the possibility to do what it purports, then they are deluded as well.
And if the military, with all it's resources and secret surveillance, domestic warfare and assassination programs, thinks it can prevent that new government from forming, they are mistaken as well.
As things stand, we have symbols and no reality. We have the symbols of an executive without execution, blind legislative oversight, unresponsive and partly secret courts, all owned and operated by campaign finance corporate donors. Symbolic congress, symbolic president, symbolic courts. And the sweet memories of a representative democratic republic with due process of law.
It would be nice if some of these guys did their jobs. I personally doubt they will. And I mourn the passing of the government of my country. I hope the next government lives up to the promises that the last one was unable to keep.
Here is a collection of html versions of documents related to warrantless NSA wiretapping and domestic surveillance, originally released in pdfs. File links are relative, and it is downloadable, unzip-able into any directory. In many documents I have transformed text references into links (like linking from a CRS report or lawsuit footnote directly to the Supreme Court decision it references).
I hope You find this collection useful. The Document Summary is listed below.
- David C. Manchester
WARRANTLESS DOMESTIC SURVEILLANCE
DOCUMENT SUMMARY
Document Site Main:
http://thewall.civiblog.org/rsf/nsa.html
January 20 House Judiciary Democratic Briefing Materials
Here is The Briefing Transcript:
nsabrieftranscript12006
Here is Bruce Fein's Statement:
feinstmt12006.html
Here is Jonathan Turley's Statement:
turleystmt12006.html
Here is James Bamford's Statement:
bamfordstmt12006.html
Here is Richard Hersh's Statement:
hershstmt12006.html
Here is Caroline Fredrickson's Statement:
fredricksonaclustmt12006.html
Here is Kate Martin's Statement:
martinstmt12006.html
Here is Rep. John Conyer's Statement:
conyersstmt12006.html
Here is Rep. Maxine Water's Statement:
watersstmt12006.html
Here is Rep. Sheila Jackson Lee's Statement:
jacksonleestmt12006.html
Here is the January 6, 2006 Letter to the President requesting information, signed by 28 Members of Congress:
presnsawiretapltr1506.html
Here is Harvard Law Professor Laurence Tribe's Letter to Rep. Conyers. (Tribe is the author of American Constitutional Law):
tribensaconyersltr10606.html
Here is the Judiciary Committee's Ranking Member Conyer's 20 January 2006 Letter to Telecommunication Carriers:
telecomspyingltr12006.html
Here is Charter Communication's Response to that letter:
chartercommresp12706.html
Here is AT&T's Response to that letter:
attresp2206.html
Here is TimeWarner's Response to that letter:
timewarnerresp2906.html
Here is T-Mobile's Response to that letter:
tmobileresp2606.html
Here is Reps Conyers' and Scott's January 6, 2006 Letter to Rep. Sensenbrenner asking for an investigation into the FBI's mishandling of the Brandon Mayfield Case:
mayfieldmishandlehrgltr1606.html
Here is the February 24, 2006 Letter to the President, again requesting the appointment of Special Counsel, signed by 18 Members of Congress:
presnsaspconltr22406.html
Here is the March 3, 2006 Letter to Senate Minority Leader Harold Reid from Senate Majority Leader William Frist, M.D., threatening to unilaterally restructure the Intelligence Oversight Committee to prevent a full investigation:
frist_letter_to_reid_030306.html
Here is the former Assistant Secretary of State and current Yale Law Professor Harold Hongju Koh's February 28, 2006 Statement before the Senate Judiciary Committee:
022806_Koh_To_Senate_HHKNSAtestfinal.html
CONGRESSIONAL RESEARCH SERVICE PAPERS
Here is Elizabeth B. Bazan's and Jennifer K. Elsea's January 5, 2006 CRS report, "Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information" (includes lots of links):
CRS_Jan_5_2006_Bazan_Elsea.html
Here is Alfred Cummings' January 18, 2006 CRS analysis, "Statutory Procedures Under Which Congress Is To Be Informed of U.S. Intelligence Activities, Including Covert Actions":
CRS-informing-Congress-of-intel.html
LAWSUITS:
ELECTRONIC FRONTIER FOUNDATION:
Here is the EFF's (initial filing) Class Action Complaint against AT&T (internal page links):
att-complaint.html
AMERICAN CIVIL LIBERTIES UNION
Here is the ACLU's Complaint for Declaratory and Injunctive Relief against the NSA. (extensive internal navigation links included):
aclu-nsa-complaint.html
FOIA
Here is the ACLU'S Pentagon Spying FOIA February 1, 2006, seeking from the Pentagon records from Talon, CIFA, MX of infiltration, intimidation, dirty tricks, and spying on Richard Hersh, The Truth Project, Inc., Patriots for Peace, Ft. Lauderdale Friends, Melbourne Florida Counter Inaugural, Broward Anti-War Coalition, Jeff Nall, Maria Telesca-Whipple, and others:
PentagonSpyingFOIA_020106.html
ISSUES BRIEFINGS
Here is the ACLU's October 30, 2003 Issues Briefing "THE MATRIX: Total Information Awareness Reloaded - DATA MINING MOVES INTO THE STATES" with addendum, Shane Harris' February 23, 2006 National Journal report, "TIA Lives On":
aclu_matrix_report.html
Policy Statements
AMERICAN BAR ASSOCIATION
Here is the American Bar Association's Letter to President Bush:
aba_domsurv_ltr_whthouse-0206.html
Here is the ABA's Roster, Recommendations, and Report sent with that letter.
aba_house302-0206.html
Public Interest Law
OPEN SOCIETY INSTITUTE
Morton H. Halperin is the Open Society Institute's US Advocacy Director.
Here is Morton Halperin's January 6, 2006 paper
"A Legal Analysis of the NSA Warrantless Surveillance Program"
nsasurveill_20060106.html
CENTER FOR NATIONAL SECURITY STUDIES
Kate Martin is the Director of the Center for National Security Studies. Here is Kate Martin's and Brittany Benowitz's December 20, 2005 NSA Spying Memo
cnss_martin_spyingmemo.html
DCM ARTICLES
David Manchester created this collection of converted warrantless surveillance documents. He is a former military journalist, an IT Contractor, and his articles have appeared in such diverse publications as ECommerce Times, Technocrat, OsOpinion, and Linux Today.
Here is Manchester's February 27 article "Big Brother Is Watching You," a collection including reporting from MSNBC on the 902nd Military Intelligence Group's infiltration of peaceful groups opposing Bush administration policies, Congressman Wexler's response, an October 2005 OMBWatch article, Shane Harris' National Journal article "TIA Lives On," and an article by Manchester:
big_brother_talons_on_you.html
Here is David Manchester's May 18 article "Big Brother Is Watching You Part 2" - a collection of May 2006 USA Today articles about the NSA Call Database, to which he has contributed an introduction and a closing editorial:
big_brother_talons_on_you_2.html
DOWNLOAD THE SET
They are all in this zip file:
012006_HouseDemJudBriefing.zip
(NOTE: All links are local, and only refer to the filename alone. So You can download the archive, unzip into any directory, and this page will still work when You are not online... Once You download and unzip it into a specific shared folder, another User on Your local network can download, or browse, as well -dcm)