All You Need to (Not) Know About the Proposed FISA Fix

Marty Lederman

Seventeen years ago, the very first Bush (41) Administration was considering whether to ask Congress for an amendment to FISA very similar to the one the current Administration is now seeking. Mary Lawton, the FISA guru within DOJ at the time (she tragically died shortly thereafter), wrote a memo to Daniel Levin in the Deputy's Office (yes, that Daniel Levin) discussing why such a proposal might not be such a good idea. That memo has recently been released under FOIA. (Hat tip to David Kris for obtaining it and bringing it to my attention.)

The most important sentence in the memo, I think, is this one, in the penultimate paragraph:

"It should also be noted that the proposed amendment to FISA to resolve the NSA problem . . . is certain to be written in such enigmatic terms that only those who have been briefed in executive session will understand them."

Truer words were never written. And that's why it is, indeed, almost impossible to have a serious, informed legislative and public debate about the current Bush Administration's proposed FISA amendments -- because the public (and most legislators) can never be let in on what the amended statute would actually do: it's secret law.

[UPDATE: That does not mean, of course, that everything about the current legislative debates is inscrutable. For instance, although Joe Klein dutifully published the talking points he was being tendered by Republican strategists -- that the House Democratic version of the legislation "would require the surveillance of every foreign-terrorist target's calls to be approved by the FISA court" and "would give terrorists the same legal protections as Americans" -- that was manifestly not the case, as Klein could have learned in a few minutes had be bothered to read the bill, or to contact folks on the outside who had bothered to do so. (That's the Republican strategy: Make sure their own bill is "written in such enigmatic terms" that few in Congress or the public can understand exactly what is authorized, and then feed writers such as Joe Klein the line that the Democratic alternative treats terrorists and U.S. persons the same, trusting that he'll parrot their line.) To make matters (much worse), Klein subsequently conceded that he had been rash in accusing the Democrats of coddling terrorists, but added that "I have neither the time nor legal background to figure out who's right" about the Democratic FISA bill. (He had time to publish the original slur, but no time to bother checking whether it was true . . . talk about your reckless disregard.) And then, as the coup de grace, Time Magazine has appended the following jaw-dropping "correction" to the electronic version of the original article, which will undoubtedly be the subject of countless J-School classes in future years: "In the original version of this story, Joe Klein wrote that the House Democratic version of the Foreign Intelligence Surveillance Act (FISA) would allow a court review of individual foreign surveillance targets. Republicans believe the bill can be interpreted that way, but Democrats don't. It's not our job to figure out who's correct -- indeed, it doesn't matter." (I added the last sentence, of course -- but it's the logical implication of -- and not much more preposterous than -- what came before.) Glenn Greenwald has been all over this and has all the sordid details.)]

In any event, Mary Lawton's memo reminds me of her testimony several months earlier in 1990 before the Senate Intelligence Committee. Senator Specter was asking her about the prospect of regulating physical searches under the existing FISA regime. Lawton balked. She explained that DOJ would not want the FISA regime to be the exclusive means of conducting physical searches, and it would be difficult to build loopholes into any definition of "physical surveillance" comparable to those in the existing, complex FISA definition of "electronic surveillance." This led to the following revealing colloquy:

LAWTON: The FISA statute, as you know, is crafted in such a way that by definition a number of items fall outside its mandate.

SENATOR SPECTER: Would you enumerate those, please?

LAWTON: I can't in open session, Senator.

SPECTER: Excuse me?

LAWTON: I can't in open session.

SPECTER: But the statute is public.

LAWTON: The statute is public. But . . . in the definitions if the statute, certain things are included and those are public. What those definitions leave out --

SPECTER: Is not public? Can't [I] figure it out from what is in the definitional section?

LAWTON: Not without a considerable body of knowledge, no.

SPECTER: Well, I question that.

[Just to clarify: I'm not suggesting Lawton was wrong. This is one of the difficulties of trying to legislate in this area -- that so much of the subject matter is and should be classified (although probably not as much as NSA insists). But for that very reason, Congress ought to understand exactly what it is authorizing -- and should be very careful to protect the interests of those U.S. persons who cannot possibly know the extent to which their privacy interests are implicated.]
Posted 10:11 AM by Marty Lederman [link]