Conference Call on the New FISA Legislation:
I just finished listening to a conference call with a senior White House official on the new FISA legislation. Although I always appreciate when government officials make themselves available like this, the call was very general and didn't get far past talking points. There were two questions taken from the audience, both softballs, but for some reason my efforts to get into the queue to ask my questions didn't work (probably my error, or maybe the software's; I don't know). In any event, here were the two questions I wanted to ask:
(1) What is the meaning of "surveillance directed at" a person? If you're watching suspect A in Pakistan, and he starts speaking with known suspect B in the United States, is the surveillance "directed at" only A or is it now directed at both A and B?The call did bring up an interesting aspect of the legislation that I hadn't thought about before. If I understood the White House official correctly, the monitoring program is in effect now (perhaps by virtue of Section 6(b)? I'm not sure). Plus, under Sec. 6(d), it will remain in effect pending appeal even if the FISA court strikes down the program as "clearly erroneous," the FISA Court of Review agrees with the FISA court, and the case ultimately goes up to the Supreme Court. If you figure the time it would likely take for a certification to be made and the legality to be addressed all the way up to the Supreme Court, this pretty much means that no matter what the courts think the monitoring will go on until close to the end of the Bush Administration.
(2) Under the new statute, providers that are required to comply with this program can challenge its legality in court. The legislation states that the legal documents in the case must be filed under seal. In your view, does the new FISA legislation prohibit a provider from disclosing the mere existence of the court challenge and/or the legal basis for the challenge? That is, will we as members of the public even know about the challenges or what legal issues are being raised?
Related Posts (on one page):
- White House Official Answers Questions About New FISA Legislation:
- Conference Call on the New FISA Legislation:
I'll have an update on this very question shortly.
Orin
In other words, the exclusivity provision does not apply to any of these new provisions. Isn't that problematic? Can't you see the administration taking the position (secretly of course) that all of these new provisions are, in essence, optional?
I would guess that onee provision that makes it possible to say that the new law enables surveillance already in the key operative section added to FISA:
Once that sweeping declaration immediately took effect as a "clarification" of FISA's core definitions, it affirmatively legalized many things that had been going on already, either under the defunct "TSP" or the FISA rulings earlier this year, as well as possibly expanded new telecom intercept activities. So long as the telecoms are cooperating voluntarily, there is no need for the government even to invoke the new "additional procedure" described in section 105B et seq.
Most everything else in the amendments, centering on these new authorizations, is optional gravy for the government, granting it expanded new surveillance tools. These provisions in the future can enable compulsory new directives to ISPs, various email hosts, colleges, employers, etc. who so far have probably not been touched. Presumably that will take more time.
Suppose I am an NSA officer vacuuming everything on the international side of a major telecom switch located next to the spot where the cable dives under the Atlantic. I would have no hesitation in swearing an affidavit summarizing the facts that way. ("The surveillance of each communication in question is directed at a person reasonably believed to be located outside of the United States.") To make that statement, I am not required to know any person's identity. I merely must believe that somebody overseas is likely to be the sender or receiver of each message.
I also have no doubt that this administration's lawyers would bless this reading of the new law -- which, after all, they wrote. There is no court to tell them otherwise.
I expanded on my own thinking along these lines in comments at Balkinization beginning here. Those comments, in turn, link back to a recent post at Volkh by Orin.
Somehow I missed that discussion. I thought Marty had turned off the comments. Guess not. At any rate, I agree with your interpretation, and I think the wording of the exclusivity clause reinforces it.
Those detailed procedures, which would be subject to deferential review by the court months later, could already have been drafted internally.
It is harder to conceive how the new compulsory new "directives" also could have been executed, and the technical work accomplished to effect them, this fast. But this is a possibility to consider. (I still don't think the government would even go this route if voluntary cooperation occurs.)
I think you and I substantially agree on 18 USC 2511(2)(f), although I would word my view in a slightly different way. That reading was also behind my own reasoning about the carveout. I left a comment on your insightful blog post.
(1) What is the meaning of "surveillance directed at" a person?
Traditional surveillance requires enforcement to focus on a specific device or location. For example, a specific home phone line oe a cell phone. If the effort is directed at "a perdson" that means that the surveillance can follow the individual wherever he goes, and on any device he uses. This will allow surveillance to continue after a change of phones, such as prepaid phone systems/phones of known associates that the "person" is known to use, and
so on.
@8.9.2007 7:33pm
I don't believe that it's enough to merely say that the suspect is 'someone' otside the US. The person must be identifiable in some way. This would probably be done through a voice match to earlier recordings.