Balkinization: More Tales from the "Unitary" Executive (or, What's Going On with the FISA Fix/Mess?)

More Tales from the "Unitary" Executive (or, What's Going On with the FISA Fix/Mess?)

Marty Lederman

Very hard to keep up, things are moving so fast. To the best of my very imperfect knowledge, here's the state of play:

Last night, Director of National Intelligence McConnell distributed this Statement, describing what he thought was necessary in an urgent FISA amendment. I found it cryptic, to say the least, but each point in it apparently corresponds to some facet of the negotiations that have been ongoing.

This morning, the Democrats on the Intelligence Committees and the Democratic leadership agreed to legislation that would satisfy McConnell's requirements. Here is the bill. I very roughly describe its principal components below. It is strongly opposed by the communications privacy community (DCT, CNSS, ACLU, etc.) as being too conciliatory, and as going well beyond authorization to exclude purely foreign-to-foreign communications from FISA, i.e., far beyond what is necessary to address the problem that the Administration has described.

DNI McConnell took the negotiated legislation back to the White House . . . and the White House rejected it as insufficient.

So the Republicans are not on board.

The Democratic leadership is trying to pass the bill today. Its prospects in the House are uncertain, because it will be opposed from both the left and (mainly) the right.

If it passes both chambers, the President will likely veto the bill . . . that his own Director of National Intelligence negotiated. [UPDATE: Spencer Ackerman, adding some tantalizing details, confirms our story from this afternoon that the "Democratic" bill is actually the deal worked out after the Dems largely capitulated to DNI McConnell's demands -- at which point the White House pulled the rug out from under McConnell. In addition, according to the AP, House Intelligence Chair Silvestre Reyes "said talks were at a standstill after the White House reneged on an earlier offer accepted by Democrats. Reyes, D-Texas, said Democrats had agreed to three points that Director of National Intelligence Mike McConnell said the Bush administration needed. 'The DNI subsequently sent us a rewritten piece of legislation that was about 80 percent different. This is a very serious issue for us.'" On the other hand, DNI McConnell denies that he had agreed on a deal.]

Quite a way to run the greatest democracy in the world, eh? Keep in mind that FISA was crafted after three years of intensive and comprehensive -- and public -- hearings, debates, and negotiations. This bill? Not so much. And it shows in the finished product. What's that old adage about legislation and sausage? We need some meat inspectors here . . .

The Democratic bill would do the following:

1. New section 105A would address the foreign-to-foreign issue: "Notwithstanding any other provision of [FISA], a court order is not required for the acquisition of the contents of any communication between persons that are not located within the United States for the purpose of collecting foreign intelligence information, without respect to whether the communication passes through the United States or the surveillance device is located within the United States."

2. Section 105B would allow the Attorney General to apply to the FISA court for an order authorizing electronic surveillance for up to one year "directed at persons reasonably believed to be outside the United States." The court would grant such an order if satisfied, inter alia, that methods described by the Attorney General are "reasonably designed to determine whether the persons are outside the United States; that "a significant purpose of the electronic surveillance is to obtain foreign intelligence information"; and that certain minimization procedures are sufficient.

3. "At or before the end of the period of time for which electronic surveillance is approved by an order or an extension under this section, the judge may assess compliance with the minimization procedures by reviewing the circumstances under which information concerning United States persons was acquired, retained, or disseminated." [No mention of what she should do then.]

4. [This apparently is potentially the most important section -- it's certainly the most inscrutable.] "The Attorney General shall establish guidelines that are 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 this section, of a United States person." If anyone understands what this means . . .

5. The Act would sunset after 120 days.

Posted 3:16 PM by Marty Lederman [link]

Comments:

Bush also threatened to keep Congress in session if they don't get him a bill today.

(Thanks for turning comments back on : )

# posted by

Charles : 3:50 PM

The WH finds it insufficient because it doesn't include immunity from procesution for the telcos.

# posted by

NAL : 4:06 PM

Bush also threatened to keep Congress in session

Is the Congress now also a part of the Unitary Executive?

# posted by

Unknown : 4:18 PM

Mark:

No, but see U.S. Constitution, Art. II, Sec. 3: ". . . he [Bush] may, on extraordinary Occasions, convene both Houses, or either of them . . ."

# posted by

Charles : 4:27 PM

NAL, is that your own interesting speculation, or do you have a source?

I had heard that the White House wanted the AG, not the FISA court, to approve the surveillance. Is that still on the table?

# posted by

Anderson : 4:27 PM

Bush could in theory reconvene Congress until it does what he wants, but I would think that if you mess with enough senators' trips to Disney World, impeachment could become an option.

# posted by

Anderson : 4:29 PM

And, the grounds for impeachment would be . . . ? Interrupting pre-paid vacation plans?

# posted by

Charles : 4:37 PM

The grounds, Charles, would be abuse of his Constitutional prerogative for the purpose of bullying Congress into passing legislation it declines to enact.

Do you seriously think that would not be grounds for impeachment? Bush recalls Congress; Congress votes to adjourn; Bush recalls 'em the next day; they vote to adjourn; etc., etc., etc.?

# posted by

Anderson : 4:54 PM

No, I don't (but, then again, if a majority in the House thought the President jaywalking was sufficient grounds, there's nothing I could do about that). Since the first Congress, 27 special sessions have been convened. The last was called by President Truman in 1948.

# posted by

Charles : 4:59 PM

I believe this is still too opaque (as hinted at in the post).

As Arne stated in a previous post, reducing FISA needs when foreign (endpoint and person) to foreign (endpoint and person) communication just happens to route through a US node/server/what have you does have a certain amount of sense in it, given the interconnectedness of today's communications web. This may include reasonable (please define in the bill, not up to DOJ) belief that the endpoints are foreign in nature.

However, keeping audit/judicial functioning outside of DOJ, of whatever political stripe, is becoming a necessity in order to maintain a balance of security vs. liberty, especially under the already generous FISA rules and approval rate (approaching Six Sigma, I believe, which is rare in any government function).

As to the political gamesmanship, so long as it is honestly reported, and the President aborts his own vacation to show his concern with what is happening, I much prefer politicians at each others throats than silently acquiescing to each other's positions.

# posted by

Fraud Guy : 5:00 PM

And, as I stated in a previous post: I'm just grateful these Dems were not in charge during WWII -- can you imagine, Bart, the damage they would have done? They would have prevented Yamamoto from being killed because no warrants were issued in that case either!!!
How much "oversight" did Congress have over the broken Japanese codes during WWII? You people have no idea how to defend a country, do you?

# posted by

Charles : 5:04 PM

This comment has been removed by the author.

# posted by

JaO : 5:08 PM

I don't understand Charles. He "thanks" the posters for opening comments, and then proceeds to repeat the exact same partisan drivel that got comments closed on the previous posts. It's like a child not understanding why his toys keep getting taken away.

# posted by

Steve M : 5:10 PM

The general administration objection is apparently one of executive hubris -- refusal to accept the principle that a generalized FISA court order is required to authorize such surveillance.

Yet, according to what we know from press reports in Newsweek, the LA Times and the Washington Post, that was precisely the status quo before the FISA court ruled a few months ago rejecting such a generalized court order. Prior to that decision, the administration was willing to live with that status quo. I suspect that the court's objection was that it lacked juridiction for such an order, which this legislation would provide.

However, the White House seems to have decided to make this a political issue rather than a pragmatic one.

# posted by

JaO : 5:10 PM

# posted by

Anderson : 5:12 PM

At least I'm polite about it. Steve.

# posted by

Charles : 5:12 PM

It's like a child not understanding why his toys keep getting taken away.

# posted by Steve : 5:10 PM

He knows exactly what he is doing.

# posted by

Bartbuster : 5:13 PM

Anderson:

I believe mine was a relevant counter-point to: "reducing FISA needs when foreign (endpoint and person) to foreign (endpoint and person) communication just happens to route through a US node/server/what have you does have a certain amount of sense in it, given the interconnectedness of today's communications web. This may include reasonable (please define in the bill, not up to DOJ) belief that the endpoints are foreign in nature.

However, keeping audit/judicial functioning outside of DOJ, of whatever political stripe, is becoming a necessity in order to maintain a balance of security vs. liberty . . ."

# posted by

Charles : 5:14 PM

Actually, Bartbuster, I would be glad to knock off early and we both take the next two days to recoup -- deal?

# posted by

Charles : 5:18 PM

Fraud Guy:

As Arne stated in a previous post, reducing FISA needs when foreign (endpoint and person) to foreign (endpoint and person) communication just happens to route through a US node/server/what have you does have a certain amount of sense in it, given the interconnectedness of today's communications web. This may include reasonable (please define in the bill, not up to DOJ) belief that the endpoints are foreign in nature.

I perhaps should have been more explicit.

There is currently no need for a FISA court order when none of the parties to a communication is within the Unites States and the interception is done domestically:

50 USC § 1801(f)(2):

(2) 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, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511(2)(i) of title 18;

It is only when the intercepted communication is "to or from" a person in the U.S. that FISA applies.

The rub is that if you "target" all communications of a foreign party, you might pick up communications between them and someone in the U.S.

CALEA interception equipment is generally "target"-oriented, and thus will pick up all communications of that target, regardless of the other party's location.

To make sure you're getting only foreign-to-foreign (and foreign-to-foreign exclusively), you might need better filtering of the call setup than available with the CALEA equipment I'm familiar with. Of course, NSA might have different equipment; CALEA equipment was built specifically for U.S. CALEA (and Title III) compliance, not for FISA purposes.

That all beign said, I don't think there's a reason that foreign-to-U.S. calls should be treated differently based on the locus of interception.

Cheers,

# posted by

Arne Langsetmo : 5:24 PM

Hey, all. I inadvertently left the comments on, and now I'm curious to see how it goes. Let's try to keep the comments strictly on-topic, so that they *actually inform* readers about relevant developments, arguments, and possible explanations of what's happening with the FISA stuff. (Sorry if that sounds snarky.)

Just a tip for those of you who would really like us to resume a regular comments section: Do not respond to comments that are intended to provoke. Simply *do not respond.* Period. Let them go. Thanks

# posted by

Marty Lederman : 5:59 PM

Arne,

If there were a simple technical solution, such as the CALEA technology you mention, there would be no problem. However, from what we know that is not the case.

As Orin Kerr's post here explains, and an LA Times story reports about the actual situation at hand, there is not an immediate factual answer to the question about whether the persons on both sides of a communication are inside the country or not. So it is not objectively known whether 1801(f)(2) applies.

So the basic issue is what the procedure is for determining that fact -- who decides, under what oversight, rules, guidelines and minimization procedures. Congressional Democrats are insisting on a robust role for the FISA courts and oversight by Congress; the administration is insisting on more unilateral authority.

Additionally, there are issues about what happens when it turns out that the intercepted calls do involve a U.S. person after all.

# posted by

JaO : 6:36 PM

JaO:

If there were a simple technical solution, such as the CALEA technology you mention, there would be no problem. However, from what we know that is not the case.

Sorry if I'm still not clear. Because of the nature of "targeting" in the CALEA environment, all calls to or from the subject of a warrant are subject to interception, and it's just your tough luck if your calls are monitored when you call that person (should have picked better "friends", I guess). Of necessity, both directions of a call are monitored (it would be ridiculous trying to figure out what was going on otherwise, kind of like eavesdroppping on someone's cell call in a restaurant). So CALEA-compliant equipment is designed to do that.

But this differs from the FISA 50 USC § 1801(f)(2) subparagraph, which requires a court order if some international "target" is calling a person in the U.S. (and the snoop is done here) ... but not if they call someone else. Not a real big problem, because you can get a FISA court order for appropriate international "targets". But if you want a "free bite at the apple" on less suspicion than would get you a FISA court order, you'll have to be selective. But, as I said, the CALEA equipment is (usually, and for most of the stuff I've seen) not set up for that. (As an aside, it may be that some CALEA equipment may give the LEA more than they're entitled to; I explained a little of this is an e-mail to the profs while comments were off; one such example is that I could program a CALEA box to give me a stream of all traffic for a raw IP; this is generally used for "targets" with fixed, known IPs, but I could set it for a DHCP that gets reused and I'd get some other poor schmuck's data once the DHCP lease expires and gets reused, or I could set it to the Google IP, and get everyone's queries...)

I'd note that minimisation procedures apply to information obtained under FISA court orders; but for stuff that doesn't need that court order, there are no such legally required procedures. If you happen to inadvertently catch a call to a domestic person and you don't have a court order, there's nothing saying what you should do with the intercept content. But you're on the hook for an illegal snoop.

As Orin Kerr's post here explains, and an LA Times story reports about the actual situation at hand, there is not an immediate factual answer to the question about whether the persons on both sides of a communication are inside the country or not. So it is not objectively known whether 1801(f)(2) applies.

There is a factual answer to that questions, of course. However, it may not be reasonably possible for the snoops to determine this (with 100% accuracym at least) in advance. Whether technical impossibilities ought to become "best effort" loopholes is a policy question.

So the basic issue is what the procedure is for determining that fact -- who decides, under what oversight, rules, guidelines and minimization procedures. Congressional Democrats are insisting on a robust role for the FISA courts and oversight by Congress; the administration is insisting on more unilateral authority.

Agreed.

Additionally, there are issues about what happens when it turns out that the intercepted calls do involve a U.S. person after all.

Yes. See above.

FWIW, I understand that if for some reason LEAs discover they're listening to stuff they should not be listening to (ferinstance, the guy calls his lawyer), they're supposed to turn of the equipment (AFAIK). Don't have a cite for that tidbit, though.

Cheers,

# posted by

Arne Langsetmo : 8:02 PM

A POSSIBLE EXPLANATION FOR THE CONFUSING SECTION.

The new bill deals with new sections 105A and 105B. They cover the calls between foreigners that pass through the US. For calls that involve US person, the Attorney General must still file a request with the FISA court under the old rules, section 104. (50 USC 1804?)

The Attorney General has 15 days to find a way to make that happen.

# posted by

creeksneakers2 : 9:11 PM

It seems to me that this is just another step toward the change from us being a Democracy to a Dictatorship. If the government can't control everyone's voice, how can you stop people from dissenting? If this path continues, I'm afraid that we'll be under martial law soon; all because of a threat that was always there... and the more that we try to 'deal' with it, the worse it gets. Its a child - attention thing. Don't let them know they got to you so they don't get the satisfaction of seeing the 'benefits' of their terror.

# posted by

blackrobemage : 1:51 AM