August 10, 2007

As you know, just prior to adjourning for its August recess, Congress caved in to Bush administration pressure and passed the Republican version of a bill amending the Foreign Intelligence Surveillance Act (FISA). Sixteen Democratic senators and over 40 Democratic representatives voted in favor of the bill, ensuring a comfortable margin of victory in both houses. I'm not convinced that these Democrats fully appreciate what it is they've done.

I say that because the full implications of these amendments are not obvious from the four corners of the bill itself and it seems to have been intentionally structured (and sold to the public) in a way that obscures its true scope.

The bill has two basic components. First, it creates a carve-out that exempts nearly all international communications (even when one party is in the U.S.) from FISA's regular provisions (which require individualized warrants, minimization, judicial review, etc.). The second half of the bill then grants the Attorney General and the Director of National Intelligence the power to authorize warrantless surveillance of the category of communications carved out by the first half of the bill. This authority is conditioned on compliance with a series of not-very-rigorous procedures and oversight requirements. The Attorney General and DNI must certify in writing (and under oath) that certain factual predicates have been met, and they must come up a set of operating protocols designed to ensure that only the carved out category of communications are intercepted. These operating protocols are then submitted to the FISA court for review on an annual basis (the court reviews them under the highly deferential "clearly erroneous" standard).

Most of the debate in Congress and coverage of the bill in the media has focused on whether these procedures and oversight requirements are sufficiently rigorous to protect Americans' civil liberties. They're not. But that's more or less beside the point because--and this is what I think many people do not yet appreciate--given the way FISA is structured, the President is under no obligation to follow even these watered-down oversight requirements. They are merely optional.

To understand why this is the case, you need to understand how FISA works. The key provision in the FISA statutory framework is 18 U.S.C. ยง 2511(2)(f). It's quite convoluted, so to make things easier, the words you need to read are in bold:

Nothing contained in this chapter or chapter 121 or 206 of this title, or section 705 of the Communications Act of 1934, shall be deemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, and procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted.

This provision, which has always been a part of FISA, does two very important things. In the first half, it expressly disclaims any intent to interfere with the president's foreign intelligence gathering powers except with respect to "electronic surveillance" as defined by FISA. The second half--which is often referred to as the exclusivity provision--makes it clear that, with respect to "electronic surveillance," FISA's procedures are exclusive, i.e, that Congress did not intend to leave the president with any residual power to conduct this sort of surveillance outside of the FISA framework.

Unlike previous administration proposals, the bill that Congress passed last week left this provision intact. But, and this is critically important, the bill significantly narrowed FISA's definition of "electronic surveillance." Here's what the amendment says:

Nothing in the definition of electronic surveillance under 101(f) shall be construed to encompass surveillance directed at a person reasonably believed to be located outside of the United States.

Thanks to this carve out, many--if not most--intercepted communications between someone in the U.S. and someone in another country (even if that person is a U.S. citizen) are no longer considered "electronic surveillance."

That means that, pursuant to section 2511(2)(f), the president retains his inherent authority with respect to this sort of surveillance and FISA does not purport to establish the "exclusive means" by which it can be conducted.

In other words, because this carved out category of surveillance is no longer considered "electronic surveillance," the warrantless surveillance authority granted to the Attorney General and DNI in the new FISA bill is redundant. By FISA's own terms, the president would appear to retain the power to order this sort of surveillance on his own authority and according to his own terms, subject only to the Fourth Amendment. The procedures and oversight requirements laid out in the bill are therefore optional.

Furthermore, the bill passed by Congress did not amend FISA's criminal and civil liability provisions, which, like the exclusivity provision, are still tied to the definition of "electronic surveillance." For instance, section 1809 of FISA makes it is a felony to "engage[] in electronic surveillance under color of law except as authorized by statute." All of the other punitive provisions are similarly worded.

Therefore, as long as the government is engaged in "surveillance directed at a person reasonably believed to be located outside of the United States," it cannot possibly run afoul of FISA's criminal or civil liability provisions, even if it totally disregards all of the procedures and oversight requirements spelled out in the bill. There's no penalty for non-compliance.

It is imperative that members of Congress and the media be made aware of the full scope of this bill. It is not as advertised. By carving out a large category of surveillance activities from the definition of "electronic surveillance," the bill effectively exempts such surveillance from FISA altogether. And while the bill purports to establish conditions and procedures for conducting warrantless surveillance, these requirements are effectively optional and, in any case, there is no penalty in the statute for disobeying them. Those lawmakers who voted for this bill need to be confronted with these facts and shamed into doing something to correct the situation.

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