(Continued from previous post)

When I consider the likely fact that intercepting a purely foreign-to-foreign communication routed physically through the US does not, under the current version of FISA, require a court order, along with the contours and meaning of the new FISA amendments, I am strongly led to a general hypothesis. This hypothesis was bolstered last night by the remarks of a Republican Congressman on the floor of the House (thank you C-Span!), which I will get to.

I strongly believe that what we are dealing with here is the administration's desire to legally attach electronic intercept and sifting hardware to the major communications nodes of internet and telephone service providers in this country, hardware which would literally cast a dragnet over an entire portion of communications that - according to "reasonable" procedures required by the pending FISA amendment - are likely sent by or to a person outside the US. The proposed FISA language allowing intercepts without a court order of "surveillance directed at a person reasonably believed to be located outside of the United States" tells me that it is designed precisely for this type of technology, which in some way seeks to filter for conversations that likely (though not necessarily, or in fact) involve a person outside the US.

This will, by default or design, inherently encompass conversations involving people inside the US as well, because there's no requirement in the amendment that all parties to the communication be reasonably believed to be outside the US. This will also, by default or design, occasionally intercept conversations occurring wholly between or among people in the US, because the amendment (and probably the technology) will only require a "reasonable belie[f]" that a person at whom the surveillance is "directed" is located outside the US. This belief of mine is bolstered by the statements of the Republican Congressman (can't remember exactly who) that the communications of US persons in the US that are sucked up pursuant to this new power will be subject to "minimization procedures" that limit their use and dissemination within the government. This was, in my opinion, a rather off-message slip revealing that at least the Republicans (and probably also the Dems) were fully aware that these changes go far beyond just fixing some alleged "gap" preventing the government from intercepting purely foreign communications relayed through the US. Congressman Conyers at least had the intelligence and wherewithall to say that outright on the floor, being one of the few Members of Congress to actually read a portion of the legislation on the floor.

Moving on, the procedures (read: software and hardware) required to "determine" that the surveillance "concerns persons reasonably believed to be located outside the United States" themselves need only be "reasonable". Moreover, and more strikingly, the "determination" by the DNI and AG (Gonzales) that these procedures are reasonably designed to do that may only be overturned by the FISA Court if they are "clearly erroneous," which is a legal term of art for "it's ok as long as the determination isn't blatantly idiodic."

What we have, consequently, are two or three layers of deference to the determinations and procedures of the government. For every use of the word "reasonable" or "reasonably," the case against a given intercept becomes harder still, and the "clearly erroneous" standard is simply a nail in the coffin of court oversight.

Enough for now - perhaps more later. I'm also waiting for Glenn's piece today.

I said this a moment ago and want to clarify the point, because it's important:

Moving on, the procedures (read: software and hardware) required to "determine" that the surveillance "concerns persons reasonably believed to be located outside the United States" themselves need only be "reasonable". Moreover, and more strikingly, the "determination" by the DNI and AG (Gonzales) that these procedures are reasonably designed to do that may only be overturned by the FISA Court if they are "clearly erroneous," which is a legal term of art for "it's ok as long as the determination isn't blatantly idiodic."

The court can only overturn a procedure not if the procedure's actual ability to sift out purely domestic communications is "clearly erroneous," but only if the government's "determination" that it will reasonably do so is "clearly erroneous." This is an added layer of indirectness, and creates a nearly meaningless standard of review.