I've transcribed some excerpts from the informative FISA discussion at the American Bar Association forum this past Monday, where Kenneth Wainstein of the DOJ made a key admission about the FISA debate as summarized and reported here:

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

First, the careful question from FISA expert David Kris in the audience that prompted the (somewhat reluctant) admission from Wainstein:

David Kris:

"[My] second [comment] is that the discussion, even now, I mean, years into this debate - except for Jim [Baker] making that comment now - doesn't really keep up with, or get to what I think is at the heart of it, which is again what Jim mentioned. And I think that's true for the usual reasons: I guess the technical complexity of all this - and Ken [Wainstein] says that Congress knows and understands that - the classified nature of the stuff, and then sometimes I worry there are other reasons, frankly, that influence it.

So in an effort just to sort of move this one, tiny millimeter forward, the question for Ken is:

You heard Jim [Baker] throw down the gauntlet. He said outright [earlier in the same ABA forum, paraphrasing Baker]: 'Foreign to foreign wire and radio communications are outside of the scope of FISA, have never been within the scope of FISA, regardless of whether the surveillance occurs in the U.S. or elsewhere.' Is that true, or is that false, or you can't answer the question?" - David Kris, 3/3/08

Kenneth Wainstein, Assistant Attorney General, National Security Division, DOJ:

"I agree with him [Jim Baker] that foreign to foreign was not a part of original FISA."

Kris: "And, has it ever been within the reach of FISA - just let's, limiting to wire and radio comms now, not...?"

Wainstein:

"Well, the concern is, and I think he [Jim Baker] alluded to this, that, especially with email, at the time of interception, you don't know where the recipient's going to be. So carving the world of surveillance up between foreign-to-foreign and everything else is good in certain areas of surveillance, but for instance in email, it doesn't get you where you need to be, because, at the time of surveillance you're not going to know if it's foreign-to-foreign or foreign-to-domestic. And that's our, that's the dilemma."

James Baker [former head, until 2007, of the Office of Intelligence Policy and Review at DOJ (responsible for FISC applications)], earlier in the forum, put it this way:

"I just want to clarify this one point that's been out there and just to try to make sure that people understand. There's been statements about: 'Well, FISA - does it require and has it required traditionally a warrant for foreign-to-foreign wire communications?' And the answer to that is no, it does not, it has never. And that is pretty clear I think just from reading the plain meaning of the words on the page. And if anybody's saying that it does with respect to a wire communication, they're just wrong. That's just, I can't say it more simply than that.

But the question becomes then - or another question is: 'Well, what about foreign-to-foreign email - what about that situation?' And you can read the FISA statute to require an order for foreign-to-foreign email, and let me just explain a little bit. And say at the outset really that the way you need to think about this problem is not foreign-to-foreign email, it's really foreign-to-unknown email.

[snip]

And so, and the key thing is there: Once you start the surveillance, you're gonna start intercepting those [email] communications before the recipient gets it. And it's only when the recipient gets the email, when they access their account from somewhere in the world - and they can do it from New York, Jakarta or Baghdad - it's only when they access it that the other part of the equation is determined to be foreign." - Jim Baker, 3/3/08

Http://www.c-spanarchives.org/library/index.php?main_page=product_video_info&products_id=203407-1&highlight=surveillance

From Kris's important paper on FISA [see http://www.brookings.edu/~/media/Files/rc/papers/2007/1115_nationalsecurity_kris/1115_nationalsecurity_kris.pdf]:

[U]ntil the PAA in August 2007, FISA did regulate wire surveillance in the United States of communications to or from a person in the United States, even if the person was a visiting foreigner; and it also regulated surveillance of stored e-mail in the United States, even if the e-mail was exchanged between two foreigners located abroad. - David Kris

Thus, the "revolutionary change" [Kate Martin's phrase at the forum] represented by the pending Congressional revisions to FISA (most egregiously in the Rockefeller bill), would be that FISA - in spite of the strictures to the contrary in the Fourth Amendment - would cease to require individualized probable cause FISA Court determinations for wire (and stored email) surveillance in the United States of voice and data communications to or from a person in the United States when those calls or emails connect with persons or companies located abroad. [Collected content is "not limited to conversations by terrorists" or even "communications relating to terrorism," and pen register and trap and trace surveillance is also authorized, as Kate explained].

A permanent change to FISA which, as Jim Baker put it, is "much broader" domestic surveillance authority than that exercised under the TSProgram that these bills (and the PAA) are implicitly intended to accommodate [and a change prompted in part, I assume, by a transition to domestic-based dragnet interception of "foreign intelligence" traffic by the NSA in lieu of its formerly foreign-based dragnets of signals intelligence]. The FISA "modernization" aspect of this is apparently a result of the inherent nature of email - where collection can take place from the fixed location of the email address's server, on the email's way to the other end(s) of a yet-to-be-completed communication between persons not geographically tied to the stored email's fixed server location.