an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
I think Orin is probably correct that the FISA Court holding that has got everyone in a tizzy has something to do with 50 U.S.C. 1802(f)(2), which defines "electronic surveillance" to include "the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States." This covers even communications "targeted" at foreign agents overseas, if they're speaking to a person in the U.S. And perhaps certain surveillance of wire "switches" in the U.S. does not give the NSA the capability, at the outset, to tell if a particular communication involving a foreign location has a terminus in the U.S. -- in which case at least some unknown number of the communications intercepted at the domestic switch will be "electronic surveillance" requiring a FISA court order.
Still, I think Jack's point is right, too: Even if such communications are "electronic surveillance," and thus would require a FISA court order, why wouldn't such an order be rather simple to obtain? After all, the primary burden on NSA would be "only" to demonstrate to the court probable cause to believe that the targeted person who is overseas -- not the other parties to the communications -- is an "agent of a foreign power," which includes someone who "engages in international terrorism or activities in preparation therefore." 50 U.S.C. 1801(b)(1)(C). Therefore, if the NSA were able to show that the targeted foreign person is an Al Qaeda agent (or other terrorist), as has been touted under the "TSP," it should be able to readily obtain a FISA court order, even for a whole series of communications, some of which might be with U.S. persons.
But NSA is nevertheless desparate for a statutory fix. This reveals two things. First, even though the FISA Court has now nixed even the scaled-back version of the NSA program, the Administration presumably is not (not yet, anyway) resurrecting its AUMF and Article II arguments to circumvent FISA. That's curious -- wonder why not.
Second, it must be the case that the NSA's aim is not simply to surveille foreigners who it already suspects as being part of Al Qaeda. It can obtain a FISA order as to those folks. What it wants, instead, is to be able to intercept foreign communications coming over domestic wires where (i) it does not have probable cause to believe that any of the parties is a terrorist or agent of a foreign power; and (ii) there is a chance that some of the intercepted communications will be with persons in the U.S.
FISA does not allow surveillance where both of those conditions obtain. (Indeed, insofar as the surveillance picks up U.S. persons in such cases, without proof that either party is the agent of a foreign power, it would probably violate the Fourth Amendment, too, at least according to the pre-FISA cases that considered the question.)
I'm not knowledgeable enough to speak to the question of how such cases should be treated -- for example, what the NSA's proof should be; to whom (the FISA court or an Executive official); and what the requisite minimization requirements should be. But however Congress resolves this problem, I would hope that the Democrats secure at least two "gives," or concessions, from the Administration:
1. The amendment should reinforce and strengthen the "exclusive means" provision, to make sure that the Executive branch cannot so readily bypass FISA as it did from 2001-2007. For example, the statute could specify that telecom companies will not have immunity from liability, and will not be able to invoke any state secrets privilege, if they facilitate surveillance based upon some extra-FISA opinion of the Department of Justice (e.g., an opinion based on an authorization to use military force, or Article II of the Constitution).
2. Congress should insist on timely and comprehensive legislative oversight, not limited to the "gang of eight," and permitting close review by those legislative aides and counsel -- not simply members -- who are most sophisticated in the ways of electronic surveillance, intelligence, and the law.