Earlier today I spoke one-on-one for about 15 minutes with a senior White House official who participated in today’s conference call, and who agreed to speak on the record about the questions I posed in my earlier post but didn’t get to ask during the conference call. Here are the questions, along with the White House official’s answers as paraphrased by me (or exactly as stated by the official when quotations are used).
Here was my first question:
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?
According to the official, this language is designed to codify the traditional intelligence community notion of having a surveillance “target.” When the government has a “target,” it tries to monitor all of that person’s calls to which it is legally entitled. So in the case of watching suspect A in Pakistan who starts talking with known suspect B in the United States, the surveillance would still be directed only at A so long as the surveillance was designed to capture A’s communications.
I then asked the official what I think of as the Marty Lederman question: Doesn’t this let the government watch people in the U.S. who just so happen to be communicating with foreigners? That is, doesn’t it let the government use the “directed at” language to keep tabs on people in the U.S. so long as they are talking to people abroad?
The official’s answer was that this wasn’t a realistic scenario in light of how intelligence investigations actually work. Under the legislation, the government’s protocol for monitoring foreign communications has to satisfy the traditional minimization requirements of 50 U.S.C. 1801(h). See the new 1805A(5). The traditional minimization rules require the government to screen out and not use contents of collected communications that do not contain “foreign intelligence information” as defined in 50 U.S.C. 1801(e). This sets up two possibilities when the government is targeting someone abroad and that person is communicating with someone in the United States. Either the contents of those communications contain “foreign intelligence information” — that is, information about terrorist attacks or terrorist groups — or they don’t.
These two possibilities explain why the hypothetical of the government monitoring the foreign communications of people inside the U.S. without a warrant isn’t realistic. If the calls to the person in the U.S. don’t involve foreign intelligence information, the government has to screen out that information and it can’t be used in any way. If the call does involve foreign intelligence information, then the government will likely have probable cause at that point to get a FISA order on the person in the United States. And it would be silly of them not to get a FISA order at that point: If a person in the United States is really a target and they now have probable cause, it would make no sense to just get by with the scraps of information the government has from monitoring a different person abroad rather than get the full picture of information it can collect by obtaining a FISA order targeting the particular person in the United States.
Finally, the official stated that it’s actually very rare for a person who the government is monitoring abroad to have communications with a person in the United States. It’s just not common for an intelligence target to have communications with people in the U.S.; communications from abroad to abroad are the norm.
Here was my second question:
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 official noted that there are actually two types of judicial review authorized by the statute. First, the FISA court has to approve or disapprove the DNI/AG certification under the “clearly erroneous” standard. See the new 50 U.S.C. 1805C. Second, the FISA court has jurisdiction to hear challenges by providers as to the legality of the program and their involvement in it. See the new 50 U.S.C. 1805A(h)(1)(A).
According to the official, challenges by providers under 50 U.S.C. 1805A(h)(1)(A) would remain under seal both as to the fact of the challenge and the legal arguments asserted. That has been the practice under FISA, and it would remain the practice going forward. The official indicated that there was likely a somewhat different answer for judicial review under 50 U.S.C. 1805C. The official stated that this was new territory for everyone and the statute didn’t address the question, but that his “sense” was that the fact of judicial review proceedings before the FISA court (and if necessary, the court of review and Supreme Court) would be public “in some way.” The official didn’t seem sure as to exactly how the existence of the proceedings would become public, or how much would be able to be disclosed, but he seemed to agree that the fact of the legal proceedings themselves would not be a secret.
Anyway, those were my questions, and the official’s answers (as paraphrased by me as accurately as I could from my notes and memory). Many thanks to the folks at the White House for their willingness to speak about these issues. Whether you think the legislation is a good idea or a bad one, I think it helps everyone to get a better sense of how the new law is likely to be implemented.