Letters to the Editor
DCLaw1
Published Letters: 861 Editor's Choice: 2
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Mona, et al
[Read the article: Democrats' responsibility for Bush radicalism]
[Read more letters about this article: Here]White House officials complained that Democratic proposals do not give them a crucial tool: the ability to begin wiretapping without having to go to a court. "Every day we don't have [this wiretap authority], we don't know what's going on outside the country," a senior White House official said. "All you need is one communication from, say, Pakistan to Afghanistan that's routed through Seattle that tells you 'I'm about to do a truck bomb in New York City' or 'about to do a truck bomb in Iraq,' and it's too late."
It's been a while since I really got into the text of FISA, but I'm fairly certain that this is false.
FISA applies only to eavesdropping that qualifies as "electronic surveillance" under the statute. "Electronic surveillance" is defined as follows:
the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes
The language referring to "intentionally targeting [a] United States person" "who is in the United States" is very important, and strongly belies the suggestion that a FISA order would be required to intercept foreign-to-foreign communications that just happen to be physically routed through the US. To me, it also makes completely unnecessary the new language exempting intercepts from FISA court orders if "directed at a person reasonably believed to be located outside of the United States."
So, the combined effect of the current definition of "electronic surveillance" with the new "directed at" exemption would seem to mean that the government could then intercept without a court order conversations that are either not "intentionally targeting" US persons who are within the US or in some other way "directed at" a person outside the US. The two are not the same, and widen the possibilities for eavesdropping without a court order.
Just my quick read of the statute - correct me if I'm wrong. Gotta go!
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mona
[Read the article: Democrats' responsibility for Bush radicalism]
[Read more letters about this article: Here]Washington Post:
Adding to the urgency for the administration is a secret ruling by a FISA judge earlier this year that declared surveillance of purely foreign communications that pass through a U.S. communications node illegal without a court-approved warrant -- a requirement that intelligence officials have described as unacceptably burdensome.
I'm much more willing to draw a conclusion based on a statute that I can look up and read, than based on a report coming from a newspaper that itself had to rely on another person's account (accurate, inaccurate, or intentionally misstated) of a secret court ruling that we are not privy to.
For instance, the phrase "purely foreign communications" in the article could have been a misinterpretation/misrepresentation by the person talking to the reporter, or by the reporter, of a ruling actually about a foreign-to-domestic intercept (or something else). The statute itself does say "intentionally targeting [a] United States person," which I would suspect has some reasonable meaning. Again, we simply don't know without being able to read the FISA court's ruling itself.
Moreover, the amendment would exempt from FISA court order requirements any "surveillance directed at a person reasonably believed to be located outside of the United States." This means that there is absolutely no court oversight of eavesdropping on the calls of a completely innocent person in a foreign country, even speaking to a US person inside the US, so long as the surveillance is "directed at" that person in a foreign country. That person could be a US citizen, too, as I read the amendment. If this change is in some way a response to the FISA court ruling we've heard about, the breadth of the change might itself suggest that the ruling concerned something more than foreign-to-foreign communications that just happen to be relayed through the US.
This would be a very significant expansion of (legally sanctioned) federal power. It is, as Marty Lederman notes in Balkinization, essentially a codification of the NSA program as it has been described. Regardless of what one thinks of the substantive propriety of such activities, it is a complete congressional capitulation to the blatantly illegal eavesdropping by the administration for the past several years. It is rewarding illegality and abuse of power with an endorsement of that illegality, at a time when the Congress needs to be doing the exact opposite with regard to this presidency.
Even if you think it's no big deal for the government to engage in these activities, it's like your son stealing a dollar out of your wallet, and then your shrugging your shoulders and giving him another dollar because, hey, it's just a dollar that he stole.
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EJ
[Read the article: Democrats' responsibility for Bush radicalism]
[Read more letters about this article: Here]Thanks for the heads-up on the House debate. I just heard the odious Duncan Hunter mentioning this "gap" in FISA that must be "filled," and though I tuned in late, I assume he was talking about being required to get a court order for foreign-to-foreign communications being routed physically through the US (I may be wrong).
Since my exchange with Mona, I've been combing FISA for any provision to this effect. I'm about to go out for the evening (after a long day of obsessing over this issue), but I want to ask in earnest: what part of FISA arguably requires a court order for this type of eavesdropping in which no person inside the US is involved?
I am genuinely puzzled. Is this true, or just another canard that's been swallowed unquestioningly by lawmakers, the media, and the public? I'm not ruling out the possibility that I overlooked something, because I'm getting ready to leave, but this does seem like an essential question, no?