Balkinization  

Friday, August 10, 2007

Anonymous FISA Spin

Marty Lederman

An unnamed "White House" official tried to reassure Orin Kerr that the new amendments aren't as unlimited as they might seem at first. (Why the anonymity? More than likely so that they can't be held to anything they say. There's no real excuse for these anonymous press conferences and calls. This is authorized Administration spin -- not leaks from someone whose job would be endangered. And yes, I know that it happens in Administrations of both parties. That doesn't excuse it.)

Orin's first question was the big one: What does "directed at" mean? Here's the answer:
[T]his language is designed to codify the traditional intelligence community notion of having a surveillance "target." When the government has a "target," it tries to monitor all of that person's calls to which it is legally entitled. So in the case of watching suspect A in Pakistan who starts talking with known suspect B in the United States, the surveillance would still be directed only at A so long as the surveillance was designed to capture A's communications.
Two responses to this:

First, if the idea were to track the traditional FISA meaning of "targeting," why didn't they simply use the FISA terminology, that is to say . . . "targeting"? Why introduce a new, undefined verb ("directed at"), if there's no intended change in meaning?

Second, this explanation actually confirms the problem many of us have identified: As long as the government is trying to monitor all of a foreign person's calls, it is free to intercept and acquire some or all of the international calls made by that person with U.S. persons in the States. Indeed, once the NSA has determined to "direct" surveillance at Person A overseas, and knows that that person has made some communications with Person B in the U.S., couldn't the NSA monitor Person's B's calls, on the theory that it is trying to intercept any and all calls made to or from Person A?

Orin's next question got right at these concerns possibilities. He asked:

Doesn't this let the government watch people in the U.S. who just so happen to be communicating with foreigners? That is, doesn't it let the government use the "directed at" language to keep tabs on people in the U.S. so long as they are talking to people abroad?

I'll quote Orin's account of the answer in full:
The official's answer was that this wasn't a realistic scenario in light of how intelligence investigations actually work. Under the legislation, the government's protocol for monitoring foreign communications has to satisfy the traditional minimization requirements of 50 U.S.C. 1801(h). See the new 1805A(5) [that should be 1805B(a)(5)]. The traditional minimization rules require the government to screen out and not use contents of collected communications that do not contain "foreign intelligence information" as defined in 50 U.S.C. 1801(e). This sets up two possibilities when the government is targeting someone abroad and that person is communicating with someone in the United States. Either the contents of those communications contain "foreign intelligence information" — that is, information about terrorist attacks or terrorist groups — or they don't.

These two possibilities explain why the hypothetical of the government monitoring the foreign communications of people inside the U.S. without a warrant isn't realistic. If the calls to the person in the U.S. don't involve foreign intelligence information, the government has to screen out that information and it can't be used in any way. If the call does involve foreign intelligence information, then the government will likely have probable cause at that point to get a FISA order on the person in the United States. And it would be silly of them not to get a FISA order at that point: If a person in the United States is really a target and they now have probable cause, it would make no sense to just get by with the scraps of information the government has from monitoring a different person abroad rather than get the full picture of information it can collect by obtaining a FISA order targeting the particular person in the United States.
I have four immediate reactions to this; but I don't profess to be a FISA expert, and so perhaps Orin or others can correct me if I'm mistaken on any of these things:

First, as discussed in my previous post, the minimization "requirement" of new section 1805B(a)(5) may very well not be a requirement -- on its face, it appears to be only a condition of an optional certification (although I expect the NSA will always or almost laways seek to certify).

Second, even if the minimization requirement applies automatically, this differs dramatically from FISA in that there is no FISA court review of the minimization in any given case.

Third, the minimization requirement does not, in fact, "require the government to screen out and not use contents of collected communications that do not contain 'foreign intelligence information' as defined in 50 U.S.C. 1801(e)." Here's the definition as applied to acquisition and retention of information (50 USC 1801(h)(1)):
specific procedures, which shall be adopted by the Attorney General, that are reasonably designed in light of the purpose and technique of the particular surveillance, to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information.
And on top of that very loose standard, the definition expressly permits "the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes."

Finally, Orin's account is that the U.S. person's communications will be acquired and retained only insofar as the contents "contain 'foreign intelligence information' — that is, information about terrorist attacks or terrorist groups." As noted above, I think it's a substantial overreading of the minimization definition to suggest that only "foreign intelligence information" may be acquired and retained concerning the U.S. person. But even if that were the case, "foreign intelligence information" is not limited to "information about terrorist attacks or terrorist groups." It includes, as well (50 USC 1801(e)):
information with respect to a foreign power or foreign territory that relates to, and if concerning a United States person is necessary to--
(A) the national defense or the security of the United States; or
(B) the conduct of the foreign affairs of the United States.
Those are pretty broad categories -- or so it seems to me.

Comments:

The introduction of new terms of art is an effort to, in a sense, broaden what has heretofore been known as "for the purpose of gathering foreign intelligence information." Of course, I have no problem with "foreign intelligence information" being broader than capturing terrorist chatter - and I don't see foreign intelligence information as necessarily being limited to international chatter, either. Foreign intelligence information my be in transmissions wholly contained between people located in the United States.

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When the snooper says "a purpose of the snoop is to gather foreign intelligence information," the general rule elucidated by Courts is that no warrant is required. The idea being that "foreign intelligence information" is used for diplomatic or traditional war-making purposes.

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FISA, in its original incarnation, substantially narrowed the general rule and held that a FISA warrant was required, for some categories of snooping "for the purpose of obtaining foreign intelligence," depending on the nature of the actor and the channel of communications.

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See 1802(a)'s categories of when warrantless pertained: "transmitted by means of communications used exclusively between or among foreign powers (but only those as defined in 1801(a)(1-3)," "from property or premises under the open and exclusive control of a foreign power (but only those defined in 1801(a)(1-3)," etc. Terrorists are expressly a "foreign power" defined in 1801(a)(4), so were NOT in the warrantless block noted in 1802.

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Now, see the effect of FISA modernization on section 1802, in particular, the redefinition of "electronic surveillance." The modernization has the effect of replacement of the limits of 1802(a) by undercutting.

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In addition to the broadening of surveillance that may be undertaken from a statutory construction point of view, without a warrant (and I think the ""a purpose of the snoop is to gather foreign intelligence information" test is appropriate), I think another purpose of introducing new terms of art is to create opportunity to import foreign intelligence information into detention and meting out of justice in some form of trial court, either Article III or military.

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As a result of the drafter's choice of tool, "obfuscation," statutory construction has become more of a mess.

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And, as a result of not organizing my thoughts before composing this, I'm guilty of the same thing ;-)
 

More succinctly, and stateb by Marty and others here on many occasions, the old test required a finding of "the purpose of the surveillance." The modernized test omits that, and substitutes a purely territorial test. Acquisition of any communication where one end is not in the US is "not electronic surveillance," regardless of the purpose of acquisition.
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That seems to be a radical change.
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And I'm still struggling with the function of 105B(a)(2).
 

Professor Lederman,

Forgive me if these questions stem only from the fact that law is not my chosen profession but I am confused as to why on page 3 it states:
"a significant purpose of the
acquisition is to obtain
foreign intelligence
information"
By using "a significant purpose" seems to suggest is more than one purpose.

The other question I have is on
page 4 which states:
"This determination shall be
in the form of a written
certification, under oath,
supported as appropriate by
affidavit of appropriate
officials in the national
security field occupying
positions appointed by the
President, by and with the
consent of the Senate, or the
the Head of any Agency of
the intelligence community"

Could "officials in the national security field" mean private companies contracted by the government? Also what is meant by "OR the Head of ANY Agency of the intelligence community"?
 

Prof. Lederman:

Orin's first question was the big one: What does "directed at" mean? Here's the answer:

"T]his language is designed to codify the traditional intelligence community notion of having a surveillance 'target.' When the government has a 'target,' it tries to monitor all of that person's calls to which it is legally entitled. So in the case of watching suspect A in Pakistan who starts talking with known suspect B in the United States, the surveillance would still be directed only at A so long as the surveillance was designed to capture A's communications."


I've already pointed out (a couple of times) that the elision of "target" into "directed at" is worrisome. They're not trying to 'codify' the word "target". That's already been 'codified' and hashed out. The only reason for using a different word rather than using a perfectly usable one, is to try to have it mean something different.

If they truly wanted to codify the meaning of "directed at" (or "target"), they would have actually defined it in unambiguous and clear language (say, in 50 USC § 1801?). That they didn't do.

Not an auspicious start to the dissembling (or is it prevarication?), if you catch my meaning....

Two responses to this:

First, if the idea were to track the traditional FISA meaning of "targeting," why didn't they simply use the FISA terminology, that is to say . . . "targeting"? Why introduce a new, undefined verb ("directed at"), if there's no intended change in meaning?


Agreed. This is so obvious, why did they try the 'spin'?

Second, this explanation actually confirms the problem many of us have identified: As long as the government is trying to monitor all of a foreign person's calls, it is free to intercept and acquire some or all of the international calls made by that person with U.S. persons in the States....

This is true. It was true for conversations of "targets" that were not in the United States [so as not to invoke 50 USC § 1801(f)(1) if the location of the intercept was not within the United States ... even if the "target" called a person in the United States! This was all done using the previous words "target" (FWIW, I'd note that §§ 1801(f)(1) and 1801(f)(2) differ in terms of both their use of "target" and their use of "United States persons"; I hinted at some possible reasons for the differences here).

... Indeed, once the NSA has determined to "direct" surveillance at Person A overseas, and knows that that person has made some communications with Person B in the U.S., couldn't the NSA monitor Person's B's calls, on the theory that it is trying to intercept any and all calls made to or from Person A?

This may be closer to the actual explanation.

Orin's next question got right at these concerns possibilities. He asked:

[Orin]: Doesn't this let the government watch people in the U.S. who just so happen to be communicating with foreigners? That is, doesn't it let the government use the "directed at" language to keep tabs on people in the U.S. so long as they are talking to people abroad?

I'll quote Orin's account of the answer in full:

[Orin]: "The official's answer was that this wasn't a realistic scenario in light of how intelligence investigations actually work. Under the legislation, the government's protocol for monitoring foreign communications has to satisfy the traditional minimization requirements of 50 U.S.C. 1801(h). See the new 1805A(5) [that should be 1805B(a)(5)]. The traditional minimization rules require the government to screen out and not use contents of collected communications that do not contain "foreign intelligence information" as defined in 50 U.S.C. 1801(e). This sets up two possibilities when the government is targeting someone abroad and that person is communicating with someone in the United States. Either the contents of those communications contain "foreign intelligence information" — that is, information about terrorist attacks or terrorist groups — or they don't.

"These two possibilities explain why the hypothetical of the government monitoring the foreign communications of people inside the U.S. without a warrant isn't realistic. If the calls to the person in the U.S. don't involve foreign intelligence information, the government has to screen out that information and it can't be used in any way. If the call does involve foreign intelligence information, then the government will likely have probable cause at that point to get a FISA order on the person in the United States. And it would be silly of them not to get a FISA order at that point: If a person in the United States is really a target and they now have probable cause, it would make no sense to just get by with the scraps of information the government has from monitoring a different person abroad rather than get the full picture of information it can collect by obtaining a FISA order targeting the particular person in the United States."


But the suspicion is that they would tap people in the United States, not to get "the full picture" on that person, but rather to try and get as many of the conversations as they can get of the foreign person, knowing that tapping the domestic target is likely to capture at least some of these conversations (keep in mind that the NSA has far less ability to walk in to telecoms overseas and demand that a 'tap' be put in on their behalf; they have to rely on "covering as many bases as they can" with any domestic access to tapping facilities that they are able to control.

I have four immediate reactions to this; but I don't profess to be a FISA expert, and so perhaps Orin or others can correct me if I'm mistaken on any of these things:

First, as discussed in my previous post, the minimization "requirement" of new section 1805B(a)(5) may very well not be a requirement -- on its face, it appears to be only a condition of an optional certification (although I expect the NSA will always or almost laways seek to certify).


I haven't tortured ... umm, sorry, "used enhanced interrogation techniques on" ... the language of the new law enough yet to have an opinion on this. I'll look later.

Second, even if the minimization requirement applies automatically, this differs dramatically from FISA in that there is no FISA court review of the minimization in any given case.

Good point.

Third, the minimization requirement does not, in fact, "require the government to screen out and not use contents of collected communications that do not contain 'foreign intelligence information' as defined in 50 U.S.C. 1801(e)." Here's the definition as applied to acquisition and retention of information (50 USC 1801(h)(1)):

"specific procedures, which shall be adopted by the Attorney General, that are reasonably designed in light of the purpose and technique of the particular surveillance, to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information.

And on top of that very loose standard, the definition expressly permits "the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes."


Don't think that's the real (or only) problem. The bolded parts have a couple of big loopholes too....

Finally, Orin's account is that the U.S. person's communications will be acquired and retained only insofar as the contents "contain 'foreign intelligence information' — that is, information about terrorist attacks or terrorist groups." As noted above, I think it's a substantial overreading of the minimization definition to suggest that only "foreign intelligence information" may be acquired and retained concerning the U.S. person. But even if that were the case, "foreign intelligence information" is not limited to "information about terrorist attacks or terrorist groups." It includes, as well (50 USC 1801(e)):

"information with respect to a foreign power or foreign territory that relates to, and if concerning a United States person is necessary to--
(A) the national defense or the security of the United States; or
(B) the conduct of the foreign affairs of the United States.

Those are pretty broad categories -- or so it seems to me.


Agreed.

Cheers,
 

cboldt:

The introduction of new terms of art is an effort to, in a sense, broaden what has heretofore been known as "for the purpose of gathering foreign intelligence information."

That doesn't seem to apply to the "target"/"directed at" elision. That seems designed to loosen up the 50 USC § 1801(f)(1) language "intentionally targeting".

Cheers,
 

As for the definition of "foreign intelligence information," I would note that this definition is contained within 50 USC 1801(e). Yet the definitions in that section are expressly limited to the FISA. ("As used in this subchapter ...")

If FISA's provisions -- either traditional court orders or the optional new procedure in section 105B -- are employed, then that definition applies. But if the government instead relies on its inherent surveillance power using the "clarification" of 105A, it is taking the activity out of FISA's scope entirely.

The granddaddy carveout (from Title III and FISA) is contained in 18 USC 2511(2)(f). It also uses the term "foreign intelligence information." But notably, while other terms of art referenced within FISA are cross referenced there, the section does not do that for the term "foreign intelligence information." The term is left undefined in the context of the carveout, which sometimes is called colloquially part of the NSA charter.

In general, the carveout for inherent foreign surveillance authority -- the residual outside of FISA's scope -- is deliberately and subtly left undefined. No other limits. No minimization. No regulation whatsoever. (Drafters of FISA have always been skilled at obfuscating their real intent. Such are the ways of secret law and secret courts.)

By placing all international calls into this category, they are treated the same as intelligence conducted locally in Moscow or Islamabad. The government can do whatever it wishes, as far as the statutes are concerned.
 

Professor Lederman:

I would suggest that there are probably some unwritten understandings between the congressional intelligence committees and the President as to what level of minimization is normally acceptable. The law may have been written more broadly to allow more intrusive surveillance in times of emergency.

Remember that we are speaking about the most highly classified intelligence gathering techniques and it would be exceedingly unwise to disclose the parameters of those programs to the enemy through public discussions of what is or is not being intercepted.

The level of minimization described by Professor Kerr's source appears to dovetail pretty well with the reported workings of the TSP. The TSP is supposed to use passive computer surveillance of targeted communications which is looking for jihadi language and discussion of high value targets. Only upon identifying such language is the communication actively monitored by human beings. In this way, the actual active surveillance is limited to communications which are likely to involve information about the enemy rather than innocent conversations.

BTW, this is a far higher level of minimization than under your standard warranted wiretap where the vast majority of communications being recorded and listened to are perfectly innocent and incidental to the criminal investigation.
 

I've already pointed out (a couple of times) that the elision of "target" into "directed at" is worrisome. They're not trying to 'codify' the word "target". That's already been 'codified' and hashed out. The only reason for using a different word rather than using a perfectly usable one, is to try to have it mean something different.

Actually, Arne, I'd put it more strongly than that. "Targeting" is not elided from 50 U.S.C. 1801(f)(1) by the addition of 105A. FISA as now amended contains both "targeting" and "directed at," which seems to demand that "directed at" be read as something other than "targeting" in order to avoid superfluity.
 

Mark:

Actually, Arne, I'd put it more strongly than that. "Targeting" is not elided from 50 U.S.C. 1801(f)(1) by the addition of 105A. FISA as now amended contains both "targeting" and "directed at," which seems to demand that "directed at" be read as something other than "targeting" in order to avoid superfluity.

Very good point, and convincing ... and damning. Thanks.

Whether that was the intent (and it's perhaps wrong to assume "intent" when "carelessness" may do), under common canons of construction, absent any other indications as to different meaning, that is the effect.

BTW, I think you were intending "superfluousness".

Cheers,
 

BTW, I think you were intending "superfluousness".

Why do you think that? :-)
 

Mark:

[Arne]: BTW, I think you were intending "superfluousness".

Why do you think that? :-)


This. Sorry for being 'pedantic' (spelled: "a" "n" "a" "l"). ;-)

But IC this, so <*Litellaesque*> "... nevermind."

Cheers,
 

cboldt correctly notes that "directed at" is not newly added to FISA.
 

Mark:

cboldt correctly notes that "directed at" is not newly added to FISA.

Thanks for the clarification. Just saw that over at Volokh myself. Don't know yet if that means they are one and the same and/or interchangeable terms.

But I'd note that, contrary to the gummint source, S.1927 doesn't do anything to clarify or "codify" any more specific definition than was available through the long-used "target".

Cheers,
 

I don't think "directed at " and "target" are interchangeable.
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The defintition of what represents a lawful target is radically different, pre and post S.1927.
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S.1927 avoids limiting surveillance to a "target," wheil pre-S.1927 makes a point of limiting surveillance to "targets."
 

It seems like the intent is to legalize the information obtained in the pre-warrant period. Then they can obtain a FISA warrant, which allows them to get information needed to actually bring a criminal case against someone. Prior to this, they could never go into the regular court system with anything of their fruits.
 

Having looked more deeply into the legislative history of 18 USC 2511(f), which is the overall carve-out for the NSA's activities abroad, I am even more convinced that the term of art "foreign intelligence information" is craftily undefined for those purposes. The FISA definition Marty quotes above from 50 USC 1801(e), which might restrict the purpose and subject matter of surveillance, does not seem to apply.

See my comment here at Volokh for details.

If I am correct about that -- and I have no doubt that David Addington and his accolytes would adopt the more expansive definition even if I am ultimately proved wrong -- there is that much more incentive for the government not to invoke the optional procedure of 105B so long as telecoms will cooperate voluntarily.
 

Oh glorious day! I think I've figured out the function of 105B(2).
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It's simply and merely the second item in a list of five items that must be recited in the certified determination that DNI and AG must submit, under seal, to the court. The sealed certified declaration is held for the prospect that a non-frivolous challenge will be mounted.
 

The Center for Constitutional Rights has filed a Motion for Leave to File A Supplemental Complaint.
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The proposed supplemental complaint is an attack on the constitutionality of the FISA modernization act.
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Proposed Supplemental Complaint - Consolidated NSA Cases
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Separately, the hearing that was to have happened yesterday has been rescheduled for August 30th.
 

Here's a puzzle about how the 105B certification and 105C review procedures are supposed to work together. Perhaps someone can shed light on these provisions.

To authorize a 105B acquisition of foreign intelligence information, the DNI and AG must certify that "there are reasonable procedures in place for determining that the acquisition … concerns persons reasonably believed to be located outside the United States, and such procedures will be subject to review of the Court pursuant to section 105C of this Act." [105B(a)(1)]

105C provides for submission and review. Under 105C(a), the government must submit to the FISA court "the procedures by which [it] determines that acquisitions conducted pursuant to section 105B do not constitute electronic surveillance." (I know, the 105B and C determinations don't tie, but there is no exact match, so keep reading.) 105C(b) then directs the FISA court to rule solely on whether "the Government’s determination under section 105B(a)(1) that [same glitch]" is clearly erroneous.

Here's the puzzle: 105C(a) gives the government 120 days in which to file; 105C(b) gives the court an additional 60 days to issue its deferential, limited ruling. This brings us to the Act's expiration date. If there were "reasonable procedures … subject to review" in the first place, why put things off?

The timeline flies in the face of the latest chapter in our national myth, in which an administration out to Protect America with its new and improved surveillance program is hamstrung because, beholden to the law, it cannot put its program before the FISA court until the Democrat Congress passes enabling legislation.

The delay leaves room for retroactive certification. About the noblest image I could summon of Messrs. Gonzales and McConnell had then staring at a 105B authorization certificate amid an embarrassment of riches, a roomful of reasonable procedures, each of them capable of justifying their certificate. Unable to decide among them, they conclude they can delay submission to the FISA court until experience teaches which is the most reasonable. Relieved, they sign the certificate.

One thing wrong with this picture is that 105C requires submission of the procedures that were used pursuant to 105B.

To return to reality, consider the House proposal. It gave the government just 15 days to establish functionally similar (if more stringent) guidelines "reasonably designed to ensure that an application is filed under section 104, if otherwise required by this Act, when the Attorney General seeks to initiate electronic surveillance, or continue electronic surveillance that began under [105B], of a United States person." For the interim it gave the government interim emergency powers to conduct surveillance without a court order for up to 45 days while preparation and court approval of the guidelines were pending.

The congressional timeline tracks the national myth, but unless I am missing something it is also the only sensible way to have gone. The Act's timeline is unintelligible to me. Nor is Congress likely to figure out what if anything was done under 105B, let alone when. The House bill would have directed a real-time stream of paper to the intelligence and judiciary committees. These provisions were gutted.

If you cannot figure these terms out, take solace. Imagine how confused and demoralized the enemy must be.
 

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