As emptywheel pointed out yesterday, Reps. Conyers, Nadler and Scott have written a very good letter responding to the Attorney General's "disingenuous" delegated reply to their inquiry about Mukasey's Commonwealth Club comments about a 9/11 hijacker-to-be's phone call. http://emptywheel.firedoglake.com/2008/04/15/conyers-to-mukasey-so-did-you-lie-or-is-there-stuff-we-dont-know/

As far as I can discern, the April 10th DOJ reply, to which Conyers responded, appears to be a deliberate effort - joined by AG Mukasey last Thursday in testimony to the Senate - to mislead the public and to wield the (largely-secret) FISA debate for partisan political advantage. In particular, a deliberate effort to conflate Executive Order 12333 (governing, among other things, the targeting for surveillance of U.S. persons located abroad) with the apparently genuine technological issue of concern about FISA's coverage in the continental United States pre-Protect America Act, to exaggeratingly mislead about the core provisions of FISA prior to passage of the PAA last August, without technically lying about what they are saying.

Note that by "genuine technological issue of concern" I'm referring to what I understand to be the (noncontroversial, but technically challenging) issue that has been misleadingly (presumably due to its classification) described as a 'foreign to foreign on a U.S. wire' problem under FISA: email sent by foreigners abroad that is stored on U.S.-based ISP servers. Without this understanding, and/or if my understanding about which issue(s) underlie the DOJ rhetoric is flawed (hard to know because of all the secrecy), then this explanation fails. See here for more about the fact that intercepting foreign-to-foreign phone calls on U.S. soil has never been covered by FISA: Http://letters.salon.com/opinion/greenwald/2008/03/07/surveillance/permalink/b0e57886590600cb4102bbf2bc1a4c13.html

See also David Kris's extremely helpful recent paper about FISA modernization:

The [FISA] statute does not apply (and has never applied) where all parties to a wire or radio communication are located abroad, even if they are American citizens, and even if the communication is intercepted inside the United States. Nor has the statute ever regulated surveillance that is conducted abroad of a person who is located abroad, even if the person is an American.

[snip]

Again, Mort Halperin clearly identified the limits in the [original FISA] proposal. He explained that NSA "could put the word 'terrorism' into its computer and then read every cable that mentions the word 'terrorism,' whether it is addressed to an American citizen or from an American citizen [or] even if it is from one American citizen to another American citizen, provided one of them is outside the United States." In other words, the NSA could not target particular Americans in the United States – e.g., by using identifying selectors, such as names or social security numbers, in its watchlists. But it could use subject-matter selectors, such as "terrorism" even though they inevitably would acquire many Americans' communications. - David Kris

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

Yet here's the way Principal Deputy AAG Benczkowski put it in his condescending April 10th reply to Conyers, et al:

Your letter, for instance, asks whether a FISA order could have been required in 2001, to intercept a communication with a terrorist suspect overseas. Prior to the passage of the Protect America Act, our intelligence officials were frequently required to seek a court order based upon probable cause to target the communications of terrorists located overseas; indeed, this requirement, which was discussed extensively both in public hearings and in closed session, was the primary impetus for the Executive Branch's efforts to modernize FISA.

http://judiciary.house.gov/Media/PDFS/Benezkowski080410.pdf

Isn't that exactly what AG Mukasey says to Leahy in selise's youtube clip of his 4/10 testimony? http://www.youtube.com/watch?v=JV8ZaQN_lRM

In the context of both this DOJ letter, and Mukasey's testimony, the alleged need for a FISA court order to "target the communications of terrorists located overseas" is seemingly connected with, tied to, or otherwise a result of the same hijacker phone call problem which Mukasey referenced in connection with Executive Order 12333, which is not, of course, part of the FISA statute itself. However, significantly, the April 10 letter does shift gears, mid-stream, after discussing the EO 12333 issue with regard to a phone call, to launch into the excerpted discussion citing "communications" of foreigners abroad that "frequently required" a FISA court order before targeting. Thus neatly sliding from the subject area of targeting phone call wire communications abroad - presumably from interceptors not on U.S. soil - which clearly do not involve FISA, pre- or post-PAA, to the subject area of stored email in the U.S. which did, pre-PAA, involve FISA.

[Of course, allowing a version of the Terrorist Surveillance Program to continue, based on "clues" mined from "transactional" databases of information obtained via NSLs and commercial databases, etc., also seems to be a primary goal of FISA's so-called "modernization."]

A further possibility may be that because of FISA's Section 1801(f)(2) - which bans interception of content of international calls made by or to Americans if intercepted on U.S. soil - the "modernization" of FISA may be intended to allow broad-based, 'vacuum cleaner'-akin U.S.-based interception (using access points in our domestic communications networks) of the content of our domestic-to-foreign and vice versa international wire communications so long as "reasonably believed" to be intended to somehow acquire only the communications of foreigners located abroad. But such a provision or change really does not equate - even "technically" - to an assertion that FISA itself - as opposed to the location of the interception technology (which for decades the NSA has obviously had in place in locations abroad) - required a FISA court order to "target the communications of terrorists located overseas." Whereas the stored email issue can (because only logistically obtainable from a U.S.-storage location) be said to have required, and to still require, such a FISA court order, absent the Protect America Act's authorizations.