Is the FISA Court Issuing Anticipatory Warrants?:
Justice Department officials gave a background briefing on the new FISA Court/NSA arrangement that provides lots of clues about what is happening. Here are the key excerpts from the transcript of the briefing:
  I really can't get into the particulars of the orders, but just like any orders from the FISA court, they're for a period of time. These are orders for 90 days. There's more than one order. . . .
  I will say that these are not -- these orders are not some sort of advisory opinion ruling on the program as a whole. These are orders that comply with the terms and requirements of the FISA statute, just like other orders issued by the FISA court.
  I will say, however, that the orders we're talking about here are not some cookie cutter order where you can just take a book down off the shelf with a model application and slap it together and file it with the court.
  These orders are complex. It took a long time to work on them. People have been working very hard on this for almost two years actually, and it has just now been approved a week ago by the judge of the FISA court. . . .
  I will say that these are complex orders, that the approach taken in the orders is innovative, as indicated in the Attorney General's letter. And I think beyond that, I'm not going to get into specifics.
  These orders, however, are orders that have taken a long time to put together, to work on. They're orders that take advantage of use of the use of the FISA statute and developments in the law. I can't really get into developments in the law before the FISA court.
  [The speed of the new process] certainly was a critical and necessary in determining whether this was an alternative that was available that continued to protect national security and achieve the objectives that we're achieving. So, regardless of what happened, that was a critical requirement, and the President and the DNI needed to be satisfied that there wouldn't be any significant operational impact, continue to do everything we needed to do.
  [L]et me just say that when a FISA judge approves a FISA application, at the time he approves the FISA application, he needs to make the determination of probable cause as provided for in the statute. That determination is made, and that's, like any FISA application, those requirements need to be made.
  I'm not going to discuss precise modifications. Obviously the details of the program were never publicly discussed. The general contours of the program were, and as the letter from the Attorney General explains, the general contours under these orders allow us to do the same thing and to target the same types of communications. And critically the determination was made that operating under the orders that we've obtained here provides the speed and agility necessary to effectively conduct that surveillance in a way that will protect -- there's no compromise in national security.
  [The recent change in the law that helped facilitate this change is not] a [FISA] Court of review decision. . . . [W]e take full advantage of all the relevant case law. That includes our own approach to the statute. That includes rulings from the FISA Court. That includes significant precedents from the FISA Court, other related things. But I'm obviously not in a position to discuss every significant ruling that deals with FISA.
  What's going on? As with everything about this program, we can't be sure; we don't know the facts, so we're stuck with making barely-educated guesses. But it sounds to me like the FISA Court judges have agreed to issue anticipatory warrants. The traditional warrant process requires the government to write up the facts in an application and let the judge decide whether those facts amount to probable cause. If you were looking for a way to speed up that process — and both sides were in a mood to be "innovative" — one fairly straightfoward alternative would be to use anticipatory warrants.

  An anticipatory warrant lets the government conduct surveillance when a specific set of triggering facts occurs. The judge agrees ahead of time that if those facts occur, probable cause will exist and the monitoring can occur under the warrant. The idea is that there isn't enough time to get a warrant right at that second, so the warrant can be "pre-approved" by the Judge and used by the government when the triggering event happens.

  I don't know if this theory is right, of course. But it seems to be consistent with the clues in the DOJ briefing. Why are these orders taking a lot of time to obtain? If my theory is right, it's because the triggering facts that amount to probable cause in a terrorism investigation presumably are complicated. There are cookie-cutter drug cases, but I gather there aren't any cookie-cutter terrorism cases. It probably takes a lot of negotiation with the FISA court judges to figure out what different sets of facts they'll accept as triggering events that satisfy probable cause. Plus, the Court might have required review every 90 days instead of the one-year max allowed under FISA because the FISA court judges would want to know if their trigger is working out in its application.

  What's the mystery legal development that helped make this possible? If my guesses are on the right track, it's probably the Supreme Court's decision in United States v. Grubbs, which was handed down on March 21, 2006. The Grubbs case is the first Supreme Court decision approving the use of anticipatory warrants.

  Anyway, that's my best guess right now. It's not a perfect fit with all of the clues, but seems pretty close. Your thoughts?

Related Posts (on one page):

  1. More Support for the Anticipatory Warrant Theory:
  2. Is the FISA Court Issuing Anticipatory Warrants?:
Just an Observer:
Does not an anticipatory warrant, as upheld in the Grubbs case, still require that the targeted premises be specified up-front, even though the triggering condition for probable cause does not yet exist at the time the warrant is issued?

My common sense, and the dicta about surveillance contained in the Grubbs opinion, seems to regard a single telephone line as the analog to such physical premise. Under what theory could a whole class of telephone lines (or virtual connections) be pre-approved for probable cause under FISA?

Just speculating: Perhaps the theory involves data-mining algorithms to narrow down the set of all international calls or messages as the triggering condition. But if that is the case, the pre-approved "premises" would be a very large set.

Such a theory would fit the description of being "complex and innovative" -- perhaps too much so. But under the FISA court structure, if a single FISC judge approves an "innovative" but controversial court order, there is no mechanism for review.
1.18.2007 1:35am
Tom Holsinger (mail):
That helps. It would be nice to know if these "anticipatory" warrants, if that is what is happening, are for surveillance of known phone numbers or known persons, or issued to permit surveillance of any phone numbers or persons fitting as-yet unknown criteria.
1.18.2007 1:39am
Tom Holsinger (mail):
JAO and I are zeroing in on who or what can be subject to surveillance under these possible "anticipatory" warrants, not what the criteria are for issuing the warrants.
1.18.2007 1:40am
TheGoodReverend (mail) (www):
I think it's significant that, finally when asked directly, "You say the judge has already made essentially a blanket probable cause finding. Is that correct?", the SJDO replied "That's not an accurate statement." This clue might suggest that, rather than issuing an anticipatory standing order that probable cause is met in all circumstances when such-and-such conditions are met, the judge actually did approve orders with a list of names in front of her. It seems like what's going on is that Justice or maybe NSA is able to make an initial determination of probable cause according to certain guidelines--perhaps with respect to targets who have relationships with certain people--and that the determination is then subject to review at the 90-day mark by a FISA judge.
1.18.2007 8:23am
Bruce Hayden (mail) (www):
My gut feeling right now is that Orrin has the right idea here, but we haven't yet figured out the specifics.

The problem I see with the idea of having lists of phone numbers or the like pre-approved is that that only solves part of the problem - that of a targetted individual calling a non-targetted person in the U.S. (whether here legally or not).

The other problem is that encountered when rolling up a terrorist network in the Middle East. By all indications I have seen so far, the general practice is to seize phone numbers however they can (often from cell phones' histories and phone books), and feed those to the NSA in real time. Then, those numbers are watched, and possibly down another level. The problem is that the numbers typically go cold w/i a day or so, as word gets out that networks have been compromised. Any preapproval of numbers from this system would not be timely enough to work effectively in the case where one of those just-acquired numbers called someone here.

Which is why I am tending right now to a theory that they also have flow-chart type approval for short term surveilance. Thus, if the NSA can show, for example, that a phone number here was obtained in a raid in Iraq of a terrorist safe house, then they can surveil it for a couple of days under this program.
1.18.2007 11:27am
Bruce Hayden (mail) (www):
Surveiling specific persons doesn't make a lot of sense in this scenerio due to the effort required to tie a person to a phone number, and the ease at switching phone numbers. Besides, if a specific person can be identified, a FISA warrant can be optained for him.

The primary problem all along has been when a suspect phone number either calls someone here in the U.S., or is called from here. The NSA may not have any idea of who is on either end of the call, just that the foreign phone number is fairly suspect.

Keep in mind that most often, the phone numbers are acquired first, and only after some legwork, can the person tied to a specific phone number be determined - and that is really only if the phone is here and the FBI can be talked into running it down (and that takes time, time that they don't typically have). It is much harder if the phone number being targetted is overseas in, for example, some of the less stable parts of the Middle East.
1.18.2007 11:41am
Just an Observer:
Along the lines of an issue I raised in the previous thread, regarding how Congress might find out details of what the FISC court has approved, Judiciary Chariman Leahy said at today's hearing that he and Sen. Specter have written to the chief judge of the court asking for copies of the orders.
1.18.2007 11:58am
18 USC 1030 (mail):
What about if the conditions set forth in the, assumed, anticipatory warrant order are not met yet the government wants to conduct surveilance? Does this put us back to the "problem" (at least as the government sees it) we had before the TSP?

That is to say: If the conditions for an anticipatory warrant are not met, the president has given up his authority by not resigning the TSP, and the typical process for obtaining an order from FISC is so arduous that new procedures were needed, did the government now deny themselves the ability to conduct that surveilance by not having an "efficient method" by which to execute it? Would there be some catchall that says "or any other behaviors deemed by the AG to be...."? If not, did the government potentiall create a class that they cannot go after? If so, does that really change the TSP other than to give the guise of over-sight?
1.18.2007 12:04pm
Eager Lurker:
How about this? Suppose Prof Kerr is right, and that these orders are for anticipatory warrants. What if these warrants aren't for numbers/voice prints that are "seized and fed to the NSA in real time" (call them 'Set A'), but are for numbers/voice prints in the US that are called by numbers in Set A (call those Set B)? (Similarly, numbers that are called by numbers of Set B and so on, until you eventually reach Kevin Bacon...)

I am probably wrong, but I thought that attempts to monitor conversations of Set B and a party of neither A nor B required a separate warrant application under FISA. Perhaps these new orders attempt to claim that conversing with Set A, by itself, is the condition precedent for short-term monitoring of Set B's conversations? While this would save having to go back to the FISA court to ask to monitor each number Set A talks to, would this legal under the 4th? Is monitoring domestic communications with a filter to flag content with key words/voiceprints, but without recording other content, legal? How about recording domestic communications, but not allowing access to those recordings w/out a warrant (either Title 3 or FISA)?

Thanks again for providing this forum for cordial thought-provoking legal discussion.
1.18.2007 12:13pm
Tom Holsinger (mail):
Mark Levin at NRO makes a good case for a new Bush administration policy of pre-emptive surrender.
1.18.2007 1:00pm
Crust (mail):
Gonzales' letter and the DoJ briefing were extraordinarily vague. Will the administration comply with FISA henceforth? With regard to the TSP, that is arguably an open question, but as a general matter the answer is clear: No. These new comments from Gonzales and DoJ officials pertain specifically to the TSP, not to other programs, notably the NSA call database which violates the pen register provisions of FISA (not to mention any other programs that may exist but haven't been leaked to the press).
1.18.2007 1:04pm
Bruce Hayden (mail) (www):
One problem was that it was impractical to get FISA warrants for the Set A numbers before they would go stale. Plus, there are invariably a lot of them, again causing a lot of overhead.

What has to be remembered here is that technology almost assuredly moved intereception to w/i the U.S., and thus made 50 U.S.C. 101(f)(2) applicable, as opposed to (f)(1) when the interception is made outside the U.S. The difference is that under 1801(f)(1), the interception must be of a targetted U.S. person. 1801(f)(2) however also applies to non-targetted and/or non-U.S. persons in the U.S.

So, under 1801(f)(1), surveiling calls from/to Set A to/from the U.S. would not be covered by FISA because the person in the U.S. was not targetted. But it potentially is under 1801(f)(2) since targetting is irrelevant.

Also note that the structure of FISA is really aimed at surveiling specific identifiable people. It was crafted during a time of fixed land lines that could be easily connected to identifiable people, not disposable cell phones. As a result, it is likely that even getting warrants for all the Set A numbers would be problematic.
1.18.2007 1:07pm
txjeansguy (mail):
I posed a similar question in July on Balkinization after the Grubbs opinion was issued. As Just An Observer points out, one issue, if the government is using a dragnet-style data-mining operation, is whether the conclusions of computerized analysis (of library checkouts, emails, web pages viewed, cell phone records, flight records, credit card records, etc.), can serve as the basis for the probability determination. Another issue is whether constitutional protections forbid such invasions of privacy.

In Grubbs, the occurrence of the "triggering condition" — successful delivery of child porn by the USPS — would plainly establish probable cause for the search, and the affidavit established probable cause to believe the triggering condition would be satisfied:

"[T]he probability determination for a conditioned anticipatory warrant looks also to the likelihood that the condition will occur, and thus that a proper object of seizure will be on the described premises. It must be true not only that if the triggering condition occurs (there is a fair probability that contraband or evidence of a crime will be found in a particular place) . . . but also that there is probable cause to believe the triggering condition will occur."

There, the party was known and the USPS's delivery of a package was near certain. I would posit that Grubbs thus only supports an anticipatory warrant (especially a secret one) if the affidavit avers that a _specific_ party on the phone is actually a terrorist or that some other crime will occur (e.g. RICO, conspiracy), not just that there are terrorists who use phones. After all, there are some pedophiles somewhere who receive mail but you still need a warrant to search. Bush could conceivably answer that he doesn't need a warrant at all for the reasons in USDOJ's memo to Sen. Schumer, or that a computerized analysis based on other collected characteristics has sufficiently narrowed the field (Scalia did only require a "fair probability"). The problem with the latter point (others have covered the former!) is the same problem the RIAA and MPAA have when suing people, based on IP addresses, who don't even own a computer. Of course, the government's databanks presumably have much more complete information than do those groups'.

Also, what is the "triggering condition" in this case? If you define it as "this person checked out the Anarchists' Cookbook at the library," well, that's not really anticipatory since you know it occurred. That would be a normal warrant. And surely it can't be that "this person uses the library, and from his internet reading history we can tell that he wants to blow something up (or is Muslim), and so if he checks out the Anarchists' Cookbook he's going to commit a crime." U.S. Constit. Ams. 1, 4, 9. It's worth nothing, as has Prof. Akil Amar, that the Bill of Rights give a special place to papers and writings.

But this is all speculation - as Prof. Kerr points out, we just don't know. Which is a problem in itself for people who care about privacy; maybe not so much for those more concerned with security.
1.18.2007 1:40pm
Just an Observer:
Meanwhile, the presiding FISC judge, Colleen Kollar-Kotelly, has already responded to Leahy and Specter. She says that while she has no objection to the Judiciary Committee getting copies of the requested court orders, the committee should direct its request to the Justice Department because the contents are classified.
1.18.2007 1:51pm
srg (mail):
For what it's worth, here is an interesting and at least to me plausible-sounding theory from powerlineblog. For the full post, go to

"Here is a possible scenario to explain this new order from the FISC. Previously a lot of collection of wireless communications was undoubtedly done by targeting persons outside the US, and for that no FISC order is needed: such an order is only needed for radio communications 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. Other collection outside the US undoubtedly just scooped up whatever was available and was then analyzed using sophisticated software to produce leads. But the Gonzales letter refers to "targeting for collection." Obviously, if person #1 in, say, Waziristan is in regular communication with person #2 in Manhattan it would be possible to target person #1 in Waziristan for collection, and end up collecting person #2 in Manhattan, without getting an order. If in the course of that collection it becomes apparent that person #2 in Manhattan is also talking to person #3 in, say, Baluchistan, person #3 could also be targeted, resulting in person #2's communications being collected in that instance as well. All without an order from the FISC, since technically the persons targeted were outside the US.

"From published accounts, it appears that the FISC balked at accepting information that was collected in this manner for probable cause purposes when it was submitted by the FBI in FISA applications targeting US persons. It may be that the FISC considered that this type of operation was an end run around them. The deal might then be something like this: the FISC is informed of probable cause against the non-US persons, if those persons are being targeted for collection when they communicate with persons inside the US. That keeps the FISC in the loop and they get to say they're monitoring intel operations for possible abuse: they can say that whatever submissions they receive must be sworn to, and so that means there is accountability. But the order that the FISC has now issued may mean that they will drop objections to accepting NSA information for purposes of probable cause in FISA applications that target US persons, now that a chain of accountability has been established that covers all the information that is submitted to the FISC.
"This is speculation, but I think there has to be something in this for both the Government and the FISC. I think the Government would win on any challenge to the existing FISA law, and no one really has the stomach to amend FISA. On the other hand, the Government is tired of being beaten up with baseless accusations of lawlessness. This way they accomodate feelings on the FISC, but don't yield on principle."
1.18.2007 1:55pm
Just an Observer:
powerline, as quoted by srg: From published accounts, it appears that the FISC balked at accepting information that was collected in this manner for probable cause purposes when it was submitted by the FBI in FISA applications targeting US persons.

I am aware of no such "published accounts," and I do not trust powerline to paraphrase accounts it does not even identify.
1.18.2007 3:22pm
Elliot123 (mail):
Question: Is a warrant necessary for an FBI agent follow two people, stand near them in a crowd, and listen to their conversation?
1.18.2007 3:56pm
Mark Field (mail):
Aren't all wiretapping warrants "anticipatory" in some sense? They all involve the authority to hear conversations which have yet to occur.

FISA already has provisions which are, in some sense, "anticipatory" (72 hour rule, 15 day exception for wartime). How would the hypothetical new policy differ from this except, perhaps, in the time frame? And if it doesn't meet the time frame, then how could it be consistent with FISA?
1.18.2007 4:17pm
Just an Observer:
Gonzales said something at the Judiciary hearing that may provide an additional clue. He asserted that the new FISA court orders include minimization procedures above and beyond those typically required under the law.

That leads me to speculate about a different variant of Orin's theory that anticipatory warrants are in play here.

Suppose that a phone number, email address or IP of a U.S. person is harvested from telecom traffic or otherwise comes to the attention of the NSA. But even though these electronic "premises" are identified, not enough is known at that point about the user to provide probable cause that he is an "agent of a foreign power." That is because the statutory definition of such an "agent" requires that he "knowingly" does one or more enumerated bad things. (That is why, I think, the administration has avoiding using this term of art in describing the parameters of the TSP. It has used looser terms such as "associated.")

It has always seemed to me that this FISA standard could not easily be met if about all that is known is the phone number, etc. There is a chicken-and-egg problem with listening in or reading content to find evidence of such probable cause, before such probable cause is established.

Suppose the "innovative" and "complex" new court orders include some sampling, algorithmic content analysis or other methodology dedicated to learning about whether there is probable cause the target is an agent. (This would comprise the triggering condition of an anticipatory court order.) Suppose further that the enhanced minimination procedures include rules to compartmentalize and discard everything intercepted before such probable cause is established. (Minimization generally is all about discarding content intercepted when it does not qualify under the court order, such as inadvertant conversations by innocent parties.)

Could it be that a FISC judge has approved such bootstrapping beyond anything previously allowed before Grubbs?
1.18.2007 4:29pm
Tom Holsinger (mail):
Mark Field,

The courts can and have twisted the "exigent circumstances" exception in so many amazing ways that IMO FISA's time requirements are only advisory whenever a FISA judge wants them to be advisory. And, unless an appeal is made to the D.C. Circuit or somebody leaks a FISA ruling, it will be difficult for us to find out when a FISA judge stretches "exigent circumstances" in some outlandish way.

I have no idea if anything like that has happened here, and mention this mostly to illustrate how difficult it is to draw conclusions from the available information. That certain statements raise supicions is as much as we can do at this point. I tend to side with Mark Levin and JAO that this looks more the Bush administration caving than a victory for it, but that is only a suspicion.

It also well illustrates how useless criminal justice concepts are in war. The concept underlying FISA can work only if FISA's warrant requirements are limited to the admissibility of evidence in criminal proceedings. This is due both to the nature of this war, and to the current technological state of electronic surveillance.
1.18.2007 4:34pm
Mark Field (mail):

The courts can and have twisted the "exigent circumstances" exception in so many amazing ways that IMO FISA's time requirements are only advisory whenever a FISA judge wants them to be advisory.

Fair enough, but then does it make any real sense to describe the new policy -- whatever it may be -- as involving "anticipatory" warrants?
1.18.2007 4:38pm
Just an Observer:
Tom Holsinger,

Please do not lump my opinion in with Mark Levin's ill-informed, ideological drivel.

Also, note that as I learn more I am warming to Orin's theory that the administration may have made substantive gains with the new FISC orders.
1.18.2007 4:47pm
Just an Observer:
Mark Field: Aren't all wiretapping warrants "anticipatory" in some sense? They all involve the authority to hear conversations which have yet to occur.

You accurately channel Scalia's dicta from United States v Grubbs, which supports Orin's theory that the "anticipatory warrant" model is in play here:

The anticipatory nature of warrants is even clearer in the context of electronic surveillance. See, e.g., Katz v. United States, 389 U. S. 347 (1967). When police request approval to tap a telephone line, they do so based on the probability that, during the course of the surveillance, the subject will use the phone to engage in crime-related conversations. The relevant federal provision requires a judge authorizing “interception of wire, oral, or electronic communications” to determine that “there is probable cause for belief that particular communications concerning [one of various listed offenses] will be obtained through such interception.” ...

Anticipatory warrants are, therefore, no different in principle from ordinary warrants. They require the magistrate to determine (1) that it is now probable that (2)contraband, evidence of a crime, or a fugitive will be on the described premises (3) when the warrant is executed.

Apply that model by extension to a FISA surveillance situation, which does not involve probable cause of contraband (the triggering condition for a Title III warrant), but does require probable cause that the party is a foreign power or "agent of a foreign power," and you might convince a FISC judge to bootstrap the surveillance order.
1.18.2007 5:04pm
Kelvin McCabe (mail):
While it is true that the normal criminal overhear device is intended to capture future conversations and is in this sense anticipatory, the probable cause to believe crimes have or are being committed already exists. In other words, to get the wiretap order for a normal criminal investigation, there has to be probable cause as to the individual targeted PRIOR to the authorization to use the overhear device.

If what some have suggested here is going on - i.e, the NSA simply has a long list of enemy suspects and numbers and anytime someone calls a person on the list, that is a "triggering" condition to have their own conversation tapped: There is no probable cause prior to the overhear's use as to that individual. Afterall, he may just be a telemarketer calling or it could be the wrong number. Thus, there would have to be a new definition of probable cause to conclude that any time a person calls any number in list A, he is ipso facto 'associated' with the person on the list and there is probable cause to believe he is a criminal/jihadist/al-quadea. Would a telemarketer innocently calling a number on list A be, from the moment of the call, subject to arrest based on probable cause that he is al-quaeda? I doubt that. Perhaps they have simply changed what is considered "probable cause" to wiretap, as opposed to "probable cause" to arrest. This whole area is murky and without any information, we are of course left to only guess.
1.18.2007 5:47pm
Mark Field (mail):

Apply that model by extension to a FISA surveillance situation, which does not involve probable cause of contraband (the triggering condition for a Title III warrant), but does require probable cause that the party is a foreign power or "agent of a foreign power," and you might convince a FISC judge to bootstrap the surveillance order.

This makes sense, but FISA takes this into account to some degree with the 72 hour rule. It's not clear to me how the new method would be both "anticipatory" and comply with the 72 hour rule unless (a) there's really nothing new and the Administration caved; or (b) we're not being told all the relevant facts.
1.18.2007 6:52pm
Just an Observer:
Mark Field,

I think the real problem with invoking the 72-hour "emergency" procedure has always been that it has unpleasant consequences if the FISC judge decides against retroactively approving such a warrant. The court then has a duty to notify the innocent targets that they were surveilled, so some Dearborn soccer moms might have received such notice.

With an anticipatory warrant, issued in advance but contingent upon some triggering condition, that provision would not apply. If my speculation is correct, the record of calls that did not bear fruit of sufficient evidence of probable cause would just be quietly destroyed under minimization procedures.
1.18.2007 7:09pm
rbslo (mail):
I'm guessing too, but I don't think its a simple anticipatory warrant. The 72 hour provision means that the need for haste was always a faux argument.

Instead, I think the DOJ wanted something that allowed them to data mine/do broad based telephone surveillance without very particularized suspicion. I think, somehow, they got this from a judge. Perhaps there was some modification on how much information or what type of information could be obtained without warrant, but if some combination of suspicion data was found, that would provide enough for a warrant to issue. Again, just guessing.
1.18.2007 7:40pm
Mark Field (mail):
Ok JaO, that makes some sense. Thanks.
1.18.2007 8:13pm
Tom Holsinger (mail):

Suspicion of motives is proper when considering acts of the Bush administration, which seems to pick fights it should avoid, and avoid those it should fight.
1.18.2007 8:24pm
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1.18.2007 10:20pm
Eli Rabett (www):
I believe that Gonzales asserted today that habeus corpus was optional in the US.

"the Constitution doesn't say that every individual in the United States or every citizen has or is assured the right of habeas corpus. It doesn't say that. It simply says that the right of habeas corpus shall not be suspended."

as lawyers, I assume you will be as down on this as you were on the recent Stimson statement, or are you waiting for them to come for you?
1.18.2007 11:26pm
Just an Observer:
Tantalizing new clues from tomorrow's newspapers:

The Washington Post reports

Although the precise contours and scope of the revised spying program remain unclear, some new information emerged yesterday. Sen. Arlen Specter (Pa.), the ranking Republican on the Senate Judiciary Committee, said Justice Department briefers told him the effort was based on "individualized" warrants, rather than a blanket order that would allow broader surveillance.

Four other people who have been briefed on the program, who spoke on the condition of anonymity because the program is classified, described it as a hybrid effort that includes both individual warrants and the authority for eavesdropping on more broadly defined groups of people.

And the New York Times says

A Congressional official who has been briefed on the new procedures called it a hybrid of individual warrants and broader approval.

I am not sure exactly what "individualized" and "hybrid" might mean, but the concepts do not seem inconsistent with the two phases of the anticipatory model (identified targets combined with triggering criteria).
1.18.2007 11:56pm
Bruce Hayden (mail) (www):
JaO - the other problem with the 72 hour "Emergency Orders" provision is that it is almost unworkable. The AG has repeated testified to that effect, as the minimization and paperwork requirements are identical with those for regular FISA warrants, but must be completed w/i the 72 hours and approved by a FISC judge.

It looks good on paper, and is repeated cited by those opposed to the TSA to rebut the point that bypassing FISA is necessary, etc. But the one person who really does know how well it works has repeated said that this provision provides very little assistance. Anything to the contrary is wishful thinking.
1.19.2007 1:22am
Bruce Hayden (mail) (www):
I was somewhat disappointed by the Powerline analysis. The language being cited is from 50 U.S.C. 1801(f)(1), which applies when interception is outside the U.S. But as I have pointed out repeatedly here, technology has most likely move the bulk of international surveilance into the U.S., making 1801(f)(2) applicable. Thus, most likely, the targetting, U.S. Person, etc. language is irrelevant.
1.19.2007 1:27am
Tom Holsinger (mail):

The communications companies have, at the government's request, routed trunk traffic unnecessarily thoroughh communications satellites so the NSA can read traffic going through those and claim that the interceptions took place outside the U.S. I don't know how extensive this practice is, but it has been happening for years. As I recall, a former NSA staffer mentioned that on this forum during the discussions after the NY Times published the stories about communications surveillance.

This and the "header" problem (emailed/instant message communications must be opened to determine if either the poster or the recipients are in a foreign country, such that purely domestic communications are monitored too) is why FISA is technologically obsolete. It can no longer serve its intended purpose, and has become solely a vehicle for political games.
1.19.2007 10:42am
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