I consider this to be a real breakthrough in the coverage of the FISA debate:

At the breakfast yesterday, [Kenneth] Wainstein [assistant attorney general for national security] highlighted a different problem with the current FISA law than other administration officials have emphasized. Director of National Intelligence Mike McConnell, for example, has repeatedly said FISA should be changed so no warrant is needed to tap a communication that took place entirely outside the United States but happened to pass through the United States.

[..paragraph break..]

But in response to a question at the meeting by David Kris, a former federal prosecutor and a FISA expert, Wainstein said FISA's current strictures did not cover strictly foreign wire and radio communications, even if acquired in the United States. The real concern, he said, is primarily e-mail, because "essentially you don't know where the recipient is going to be" and so you would not know in advance whether the communication is entirely outside the United States.

http://www.washingtonpost.com/wp-dyn/content/article/2008/03/03/AR2008030302814.html?

First of all, bravo David Kris for pinning Kenneth Wainstein down on such a point in such a forum. Here's proof of Kris's expertise on FISA, for those who want to learn more:

http://www.brookings.edu/~/media/Files/rc/papers/2007/1115_nationalsecurity_kris/1115_nationalsecurity_kris.pdf

Kris just forced onto the record on Page A03 of a paper read inside the D.C. 'bubble,' actual facts describing what this debate is about, thanks to the reporters for the Post who covered the ABA discussion, which revealed that the misunderstood 'foreign to foreign on a U.S. wire' issue long cited as the original justification for the Protect America Act is in fact about e-mail collected domestically.

In addition, Kris got this key member of the FISA debate in the Bush administration's DOJ to acknowledge and confirm something that has been completely obscured by the classified nature and vague discussion of the email problem: that actual 'foreign to foreign wire communications intercepted on U.S. soil' never were covered by FISA and still aren't today, post-PAA expiration. Wainstein also further clarified that knowing the location of an email recipient in advance of collection is difficult.

This information clarifies and illuminates the whole debate enormously. Everyone trying to understand the veiled discussions in terms of old-fashioned single-line wiretaps or even real-time domestic monitoring of phone-call streams on wire, is going to end up confused, because the discussion here is about collecting stored e-mail from U.S. Internet Service Providers in search of foreign intelligence. E-mail whose senders and recipients can very often be difficult to locate geographically. So that domestic-generated and/or received e-mail could be secretly collected and analyzed by the government, without a warrant, without probable cause, by mistake.

Thus, as discussed at the Senate Armed Services Committee hearing 2/27 thanks to Carl Levin, the House's RESTORE Act attempts to place a reasonable limit on the government's power to scoop up such domestically-stored email, by requiring a probable cause FISA warrant whenever the private data of "a specific U.S. person reasonably believed to be located in the United States" (which includes companies) is "a significant purpose of an [email] acquisition." DNI McConnell resists this reasonable Fourth Amendment-honoring protection and promotes instead the Senate/White House version which would only require a FISA Court probable cause warrant for the collection of domestically-stored email when "the purpose" of the acquisition of the private data is "to target a particular, known person reasonably believed to be in the United States."

In short, by claiming intent ("our purpose is foreign intelligence"), DNI McConnell and the Intelligence Community can conveniently overlook the fact that private domestic data is collected 'incidentally' - without a warrant - along with any actual foreign intelligence that is their stated "purpose" in acquiring stored email from U.S.-located ISPs, should the new Senate version of FISA become law. The fact that they didn't "intend" to collect that domestic data (because pre-acquisition they can claim it was unknown that a particular, known person was located in the U.S. - email addresses can obscure that information) excuses the fact that they did in fact collect and/or analyze domestic data without a warrant, in their biased advocate's view of the situation. Also, companies seem to be less protected from domestic spying by the Senate bill, than are individual persons, as compared to RESTORE.

Those in Congress fighting the good fight, and in need of Executive Branch confirmation of the truth of the process which it secretly controls, can now cite this report quoting DOJ's Wainstein. This also enables Members of Congress and others to cite a public report about email collection being the (actual) major focus of the "modernization" of FISA.

DNI McConnell and his general counsel are advocates, pushing a product (their new FISA bill sponsored by Rockefeller in the Senate) through Congress to get what they want the way they want. When questioned in hearings by good faith Members of Congress trying to understand their professed concerns, McConnell and Powell obfuscate, mislead and confuse, rather than clarifying, informing or enlightening. They are the opposite of professional, objective, neutral participants in this debate. They are pushing a product, and their answers to direct questions promote that product, at the expense of informed and open debate about the pros and cons of the product under discussion.

The doors to the Judicial Branch must remain open to the American people when it comes to domestic surveillance (whatever its stated purpose). However Congress and the president may try to invade our privacy, so long as the Judicial Branch is available to adjudicate Fourth Amendment disputes, any reckless, unthinking damage done by the Legislative and Executive Branches can be more or less undone. It is the attempt to remove the Judicial Branch from the equation - which is the completely insidious underlying motive of retroactive immunity advocates - that does the real damage to us all.