FISA Confusion Revisited

FISA CONFUSION REVISITED….A quick note to make clear what (I think) my main source of confusion about the new FISA law has been.

Originally, FISA allowed warrantless wiretapping of any communication between two foreigners. It also allowed warrantless surveillance of “foreign powers” (including those on U.S. soil) as long as there was no substantial likelihood that the surveillance would include conversations with U.S. persons. “Foreign powers” did not include terrorist groups.

Democrats and Republicans were both willing to amend FISA to allow limited surveillance of terrorist groups, and both were willing to amend FISA to overcome technical problems that had made it difficult to monitor certains kinds of foreign-to-foreign communications. So what was the disagreement? Originally I thought it was mainly about how to fix one of the technical problems: namely, given modern communications network architecture, what procedures do you need to put in place to ensure a high likelihood that U.S. persons won’t be surveilled while at the same time allowing NSA the widest possible latitude to monitor genuine foreign-to-foreign communications?

However, that appears not to be the case. Rather, NSA (and the White House) were specifically looking for new authority to monitor communications that included U.S. persons. And not just communications related to terrorism. They wanted a free hand for warrantless surveillance of any communication between foreigners and Americans that was related to foreign intelligence in any way.

And then, once Democrats reluctantly agreed to that, they decided they wanted even more: the authority to monitor any communications — including domestic calls — “concerning” foreigners. With no FISA court oversight at all.

I’m still not sure about all this. I’ve read a bunch of media interviews from the period when this was being debated, and the issue of broadening U.S.-to-foreign surveillance rarely comes up explicitly. Whether this was because it was hard to talk about without revealing classified information, or because no one quite understood this was really what was going on, I don’t know. But the technical “glitch” appears to have been nothing more than a smokescreen as far as the White House was concerned. From the get-go, they wanted a vastly broadened ability to monitor calls on U.S. soil without a warrant, and they wanted the FISA court out of the picture.

And in the end, thanks to incompetence on the part of the Democratic leadership, they got wildly more than they had ever thought possible. There is, at this point, virtually no oversight on NSA’s data collection at all. Hooray.

Support Nonprofit Journalism

If you enjoyed this article, consider making a donation to help us produce more like it. The Washington Monthly was founded in 1969 to tell the stories of how government really works—and how to make it work better. Fifty years later, the need for incisive analysis and new, progressive policy ideas is clearer than ever. As a nonprofit, we rely on support from readers like you.

Yes, I’ll make a donation