More FISA

MORE FISA….Joby Warrick and Walter Pincus have a terrific tick-tock about last week’s FISA fiasco in today’s Washington Post, but unfortunately it’s written in newspaper-ese and I’m having trouble following all its twists and turns. However, it’s getting late and I’m running out of the stamina it takes to unpack their prose, so here’s my initial take on what it tells us even though I’m pretty sure I’m mistaken about some of this stuff. You can read the piece and decide for yourself.

  • The problem with FISA first arose earlier this year when President Bush agreed to place NSA’s spying program under the aegis of the FISA court. In March a judge “challenged” the NSA program and in May a second judge ruled “flatly” that the government needed a warrant to tap any call that came through a U.S. switch, even if the call was between two foreigners.

  • As far as I can tell, there was no argument from anyone — neither Republicans nor Democrats — about fixing this problem. Everyone agreed that NSA’s ability to monitor foreign-to-foreign calls should be unfettered.

  • The administration’s first proposal — naturally — was that the FISA court should be removed from the picture entirely because “you can’t tell what this court is going to do.” Sacre bleu! These judges think they’re allowed to rule both for and against the government!

So far, so clear. Here’s where it starts to get a bit murkier:

  • The first contested issue was that “[Mike] McConnell consistently sought authority for warrantless surveillance not only of terrorist suspects outside the country, but of all foreign intelligence targets.” There was no such limitation in the 1978 FISA law, McConnell said, and there shouldn’t be one now.

    This refers to U.S.-to-foreign communication, which was limited by the 1978 law. Wasn’t it? I’m confused about what’s going on here.

  • The second problem related to “the question of how to deal with surveillance of communications involving citizens and foreigners inside the country.”

    This is something I hadn’t heard before. If I’m parsing that sentence correctly, it means that NSA wanted the ability to tap domestic calls without a warrant if one end of the call was a “foreigner inside the country.” Really?

  • A third problem related to specific language. “For instance, a Democratic bill would have authorized warrantless surveillance ‘directed’ at individuals reasonably believed to be outside the United States. But the administration’s draft — and the one passed into law — permitted collecting data ‘concerning’ people reasonably believed to be outside the country. Democrats said the difference between collection efforts ‘concerning’ foreigners and ‘directed’ at foreigners could be enormous, allowing intelligence officials far greater leeway.”

    Yes indeed. I imagine that lots of purely domestic communication could be said to “concern” foreigners, couldn’t it? Especially if NSA itself gets to decide what “concerning” means. For the next six months at least, it sounds like NSA is free to listen to just about anything it wants without bothering to get a warrant.

  • Finally, “In a series of conference calls, McConnell continued to complain about a Democratic-backed provision limiting warrantless surveillance to foreign suspects tied to terrorist groups….Eventually the Democrats relented and presented a bill that they believed had met McConnell’s requirements.”

    But McConnell deemed the bill’s “fine print” unacceptable, and refused to accept it. But what was that “fine print”? The fact that the bill required any FISA oversight at all? Or something else? For now, it remains a mystery.

The main thing I remain confused about is the exact extent to which communications between Americans and foreigners are still subject to warrants, or to any oversight at all for that matter. I guess the short answer is “none at all,” but I’m not really sure about that. Maybe we’ll find out more later.

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