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?

(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?

  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.