Balkinization  

Tuesday, November 27, 2007

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.]

Comments:

And that's why it is, indeed, almost impossible to have a serious, informed legislative and public debate about proposed FISA reforms ...

I'm sure Joe Klein will be happy to read this.
 

Several questions:

(1) I assume you know what those "items that fall outside FISA" are, but are not at liberty to say?

(2) Do you consider "secret law" passed without full understanding by the people's representatives to be acceptable within our Constitution and democracy?

(3) Whether or not you consider this acceptable, what would (also) be acceptable ways to increase legislators' and the public's understanding of FISA and proposed revisions?
 

Marty:

What don't you understand about Mr. Lawton's point?

Intelligence gathering is always classified for obvious reasons.

To the extent that FISA reaches certain defined types of intelligence gathering, the statutory language is most certainly public.

However, to the extent that FISA does not reach other classified intelligence gathering programs, Lawton is perfectly correct to observe that the means and methods of such programs most certainly should not be discussed in open session of Congress.

As usual, Specter is clueless and should have known better than to even ask Lawton about those programs in public.
 

It should be obvious, at least to anyone not incredibly naive, that government programs are classified to the extent that they are embarrassing or illegal. It is quite a comment on our society that we allow such wide latitude to the government to keep things secret from the population. Surprisingly, I doubt any of us would apply the same standard of evaluating government secrecy to another country. The big fuss about the Times Story on NSA transgressions indicates the real worry over secrecy. No one actually believes that the Times revealed any crucial details, that would themselves hamper the efforts of the NSA. Instead, the story was embarrassing in that it revealed a government agency flouting the law.

One would have to be fantastically stupid to believe that "the terrorists" don't think the government is already spying on them. . . .
 

Peter:

One would have to be fantastically stupid to believe that "the terrorists" don't think the government is already spying on them....

Indeed. The only question for them is whether warrants are gotten first, but from a practical matter, that's not particularly significant ... to an actual terrorist.

The problem is snooping on lots of "U.S. persons" with no "probable cause" (which is what Nixon was doing, and what occasioned the original FISA)....

"Bart" says: "To the extent that FISA reaches certain defined types of intelligence gathering, the statutory language is most certainly public."

And it prohibits what the maladministration was doing. Which is the issue.

Cheers,
 

Bart DePalma:

Your comment seems a bit off the mark.

Specter and Lawton were referring to the definition of "electronic surveillance" in 50 USC 1801(f), which does not speak at all to classified "means and methods." The criteria that set "electronic surveillance" apart from other types of surveillance (and thus determine the scope of FISA's coverage) mostly have to do with the physical location of the sender, the recipient, the acquisition, and the monitoring device.

It is not immediately clear to me why it is dangerous to discuss what combinations of these things are not covered by FISA. For example, the acquisition abroad of a communication between a non-U.S. person abroad and another non-U.S. person abroad does not count as "electronic surveillance." Why should that sort of information be secret?
 

It's OK

I wasn't using my civil liberties anyway.

Besides, who needs them? All that matters is that I am alive, in my 5000 square foot house with my hummer. God bless America
 

DMG:

It is not immediately clear to me why it is dangerous to discuss what combinations of these things are not covered by FISA. For example, the acquisition abroad of a communication between a non-U.S. person abroad and another non-U.S. person abroad does not count as "electronic surveillance." Why should that sort of information be secret?

Well, because to be absitively, posolutely sure that such doesn't count as "electronic surveillance" and to keep our po' agents from the dreadful fear of imminent perse... -- uh, prosecution for arguably legal activities, we'd have to define legally (and enumerate) in long public discussions precisely what the definitions of "electronic", "person", "communication", "abroad" (does Guantanamo count as "abroad"?), and "acquisition" are.

Which would be a boon to our Enemies, who would then know with certainty whether grocery lists transmitted by G.38 fax, automatic toll lane receipts, and wake-up calls on charters off the Keys are subject to snooping on just the say-so of the preznit.

You know, like the definitions of "severe pain", "equivalent", "imminent fear", "death", "organ failure", "transient", "waterboarding" ... and "torture". If we are forced to enumerate the possibilities in the law, our adversaries would know what our limits are and Terra-ists Will Have Won. Best to leave such to the discretion of professionals.

Oh, wait..... Then this wouldn't make sense: "Actually, the point is that Marty and many others here would rather maintain against all reason that the torture statute is clear so that they can claim that Bush broke it, rather than admitting that the statute is too vague to be useful and advocating legislation which would clearly outlaw the techniques which they believe are torture."

Cheers,
 

dmg:

Specter and Lawton were referring to the definition of "electronic surveillance" in 50 USC 1801(f), which does not speak at all to classified "means and methods...

This is the pertinent exchange:

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.


Lawton referred to intelligence gathering means and methods which fall outside the FISA definitions and Specter amazingly asked him to list them in open session of Congress.

Besides being completely brain dead, Specter is asking Lawton to commit a felony crime. If I discussed classified intelligence means and methods I was made aware of under my top secret clearance as an Army intelligence officer, I would have been justifiable courts martialed.

It is not immediately clear to me why it is dangerous to discuss what combinations of these things are not covered by FISA.

Because it lets the enemy know how we are intercepting his telecommunications and therefore how to avoid interception or provide disinformation meant to be intercepted.

We figure out our enemies' intelligence gathering methods in bits and pieces. However, we usually have to use spies to get this information, not though public discussions by the enemy government or in their press!
 

"Bart" DePalma:

Lawton referred to intelligence gathering means and methods which fall outside the FISA definitions and Specter amazingly asked him to list them in open session of Congress.

No. Lawton said "items". Not "means and methods".

"[M]eans and methods here if your "straw ma...." -- umm, sorry, construction.

Besides being completely brain dead, Specter is asking Lawton to commit a felony crime....

No. Specter is just asking for what the public law says, and is confounded that a "public law" has a real meaning that is secret.

... If I discussed classified intelligence means and methods I was made aware of under my top secret clearance as an Army intelligence officer, I would have been justifiable courts martialed.

Wow. I also have a Sooper-Dooper, Tippy-Top, For-Your-Navel-And-Not-Even-Your-Nose, Only-If-You-Really-Really-Need-To-Know sekoority clearance and a handy-dandy decoder ring to boot (and, seriously, know a bit more about the actual bidness of snooping in fact), and know what kinds of things can be discussed and what cannot. WTF that has to do with the public FISA law and its legal definitions of "electronic surveillance" is beyond me.

Cheers,
 

Bart:

What don't you understand about Ms. Lawton's gender?
 

"Bart" DePalma:

We figure out our enemies' intelligence gathering methods in bits and pieces. However, we usually have to use spies to get this information, not though public discussions by the enemy government or in their press!

... or, say, the IAEA, other foreign gummints and various reporters. Which might explain why we (the U.S., that is; I was not fooled) bollixed up the Iraq 'intelligence' so badly.

FWIW, just got done reading Richard Rhodes's "Arsenals of Folly" (the third in his series of books on nuclear weapons), and he points out that Cheney and Perle were busy with their "B-Team" 'alternate intelligence' back in the '70s!!! Mr. "SFPOTFOTP" Feith wasn't a surprise to anyone watching Cheney's modus operandi....

Cheers,
 

arne:

No. Lawton said "items". Not "means and methods".

Nonsense.

In order for the Executive and the courts to apply the statute, FISA defines the means and methods of the intelligence gathering to which it applies. Consequently, any discussion of to what FISA does and does not apply must necessarily cover the means and methods of the reviewed intelligence gathering.

These are the "items" to which Lawton refers.

Specter is not asking for the code names of the programs outside of FISA, he is asking for an enumeration of what the means and methods used by the programs do so that he can determine whether FISA's public definition does or does not apply them.

No. Specter is just asking for what the public law says, and is confounded that a "public law" has a real meaning that is secret.

Try reading the exchange for content.

There is no "secret law" and neither Specter or Lawton ever hinted that there was.

By "items" that fall out of FISA's mandate, Lawton is plainly referring to intelligence gathering programs which outside of FISA's completely public definitions.

Nothing about this exchange indicates that either Lawton or Specter is referring to some "secret law" in addition to FISA. They are discussing what intelligence gathering does and does not fall under FISA.

You and Marty are completely misreading this exchange.

Specter improperly asked Lawton to enumerate the items/programs and Lawton properly refused to do so in public.

Specter then cluelessly asked if he could figure out what programs were not covered by using the public definitions in FISA.

Lawton tried to tell the clueless Senator that you would need a very broad knowledge of US intelligence capabilities to figure out through process of elimination what programs fell outside FISA's public definitions.

Specter is simply frustrated that his Justice Committee is not read in on the intelligence gathering programs like the intelligence committees. Given his absolutely clueless behavior concerning the need to keep these programs confidential from the enemy, Specter does not merit any security clearance. The fool is a clear and present danger to national security.
 

"Bart" DePalma:

[Arne]: No. Lawton said "items". Not "means and methods".

Nonsense.

In order for the Executive and the courts to apply the statute, FISA defines the means and methods of the intelligence gathering to which it applies....


Nonsense. It doesn't say, ferinstance, that Radio Shack MF scanners are "electronic surveillance" while a Verint Star-Gates are not. It does distinguish between "radio" and "wire" communication, but that's harldy "means and methods", much less disclosure about the possibility that wire communications may be tapped and radio communications may be monitored.

... Consequently, any discussion of to what FISA does and does not apply must necessarily cover the means and methods of the reviewed intelligence gathering.

You're still full'o'shite, "Bart".

[Arne]: These are the "items" to which Lawton refers.

Specter is not asking for the code names of the programs outside of FISA, he is asking for an enumeration of what the means and methods used by the programs do so that he can determine whether FISA's public definition does or does not apply them.


Huh? Why don't you just quote what he asked if you want to explain what he asked? He wasn't asking on your behalf, so your trying to explain what it was that you wanted him to ask is a waste of bandwidth.

[Arne]: No. Specter is just asking for what the public law says, and is confounded that a "public law" has a real meaning that is secret.

Try reading the exchange for content.


I did. Unlike you, I didn't male any up.

There is no "secret law" and neither Specter or Lawton ever hinted that there was.

Nonsense. Lawton was trying to say that Specter wouldn't 'understand' unless he was one of the In Kidz.

By "items" that fall out of FISA's mandate, Lawton is plainly referring to intelligence gathering programs which outside of FISA's completely public definitions.

Perhaps, but here's Specter's consternation:

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.

If Specter has a question about a particular type of surveillance under particular circumstances, shouldn't he be able to look at the statute and see if it applies?

Nothing about this exchange indicates that either Lawton or Specter is referring to some "secret law" in addition to FISA. They are discussing what intelligence gathering does and does not fall under FISA.

And doesn't FISA describe that?

You and Marty are completely misreading this exchange.

How so?

Specter improperly asked Lawton to enumerate the items/programs and Lawton properly refused to do so in public.

Depends on what the meaning of "items" is, I guess.... ;-)

Specter then cluelessly asked if he could figure out what programs were not covered by using the public definitions in FISA.

Lawton tried to tell the clueless Senator that you would need a very broad knowledge of US intelligence capabilities to figure out through process of elimination what programs fell outside FISA's public definitions.


When some "items" were carefully crafted 'outside' of FISA, you might want to know what they were and why (and how) they were so crafted.

Specter is simply frustrated that his Justice Committee is not read in on the intelligence gathering programs like the intelligence committees....

He's a freakin' member of Congress. Are you telling me that Congress has no right to know what the executive is doing (that only certain privileged Congressmen get to know the In-Kidz stuff, and the rest just have to vote on what they don't know)?

... Given his absolutely clueless behavior concerning the need to keep these programs confidential from the enemy, Specter does not merit any security clearance. The fool is a clear and present danger to national security.

Oh. My. Now the Republicans are anti-'Merkun as well in demanding that the laws be properly crafted and followed....

Cheers,
 

The Bart and Arne show.
 

arne langsetmo said...

BD: By "items" that fall out of FISA's mandate, Lawton is plainly referring to intelligence gathering programs which outside of FISA's completely public definitions.

arne: Perhaps, but here's Specter's consternation:

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.

If Specter has a question about a particular type of surveillance under particular circumstances, shouldn't he be able to look at the statute and see if it applies?


Of course. However, In order to do so, you first need to know the means and methods of the intelligence program so you can apply the FISA definitions.

My entire point is that Specter has not been read in on the intelligence programs (i.e. items) in order to apply the FISA definitions. In order to apply the FISA definitions, Specter was essentially asking Lawton to read him in on the intelligence programs she thinks fall outside FISA so that Specter could determine for himself whether FISA applies to those programs. However, this is the oversight job of the intelligence committees in closed session, rather than a grandstanding Justice Committee member.

Specter then asked whether he could use the public FISA definitions to determine the existing intelligence gathering programs which Lawton believes fall outside of FISA. Lawton replied that he would need to have a broad knowledge of those programs to do so.

On a basic level, one can assume that spectrum of potential programs to which Lawton is referring includes any type of conceivable intelligence gathering which does not fall under the FISA definitions. However, just because the intelligence gathering by ESP falls outside of FISA does not mean that the government is actually engaged in this type of intelligence gathering. Consequently, you would be engaged in pure speculation attempting to guess what the government is doing outside of FISA by negatively applying the FISA definitions as Specter suggested.

arne, you can have the last word. Apparently, some are tiring of our "show."

As Dan Roawn said to his partner Dick Martin to close the show: "Say Goodnight Arne."
 

I said:

When some "items" were carefully crafted 'outside' of FISA, you might want to know what they were and why (and how) they were so crafted.

If Lawton was correct and certain "items" were purposefully excluded, it ought to be obvious to someone reading the actual law what "items" they'd decided shouldn't be within the realm of FISA. If it's not that obvious, then someone's maybe doing an "end-run" around the law with some 'secret' interpretations of the law on their own, or the law needs some tweaking. It says what it says it says. If someone had some specific programs in mind and carefully crafted the law to avoid those areas but not in an obvious manner, then one could argue that the law as commonly read and the law as "secretly" implemented are not quite the same thing.

It would be kind of like defining "torture" with some degree of specificity, but leaving an internal 'interpretation' of "severe mental pain" as something that of necessity is 'prolonged' (for some internally 'understood' length of time, but they won't tell you), so that someone might 'arguably' claim that waterboarding isn't something that another person of ordinary (and more) common sense wouldn't call torture (even while many common definitions of such include mock executions or putting a loaded gun to someone's head....)

Cheers,
 

The original post is interesting, as are its links. It is timely to examine the state of technology in 1990 when the hearing transcript excerpt occurs, an era slightly before the fiberoptic reconduiting of the world's metropolitan areas, but a time when fm telephones and early cell technology already were problematic. One reflection that occurred reading the still heavily redacted multipage memo document was that it represents a part of what congress does behind closed doors; and that the Democratic party was sufficiently in the majority at the time to place safeguards into wire tapping regulations creating a liability of the telcos even if the government waxed too zealous in pursuit of what would be otherwise private conversations that got wiretapped after the secret fisa court authorized them. A lot changed with the growth of stateless international terrorist organizations.

I thought Senator Specter's rhetorical devices fairly standard fare for him, simply his way of straddling the fence between politics and jurisprudence which both he understands fairly well. I thought his feigned dumbfoundedness merely a way to elicit a clear statement by the witness at the hearing; but also his phrasing captures some sense of his harboring concern that this was a threshold that complicated updating a law, and the horizon was foreboding from the legislator's vantage, in that the congressional custom of writing definitions into public law was at risk, and the witness was making that clear. But I would imagine Sen. Specter continues to have the same concerns, and others in his chamber are even more worried and more eager than he to bring as much daylight into the law craft as possible, especially given the complex of many allied issues that have washed thru the executive, and thru DoJ, even further complicating the congress' processes of collecting facts in hearings before designing changes in fast obsolescing law.
There are secret budgets, as well; so congress has formats for moving through this morass, but some of the byproducts of the current headlong executive method of prosecuting executive obligations have muddied the relationship with congress, and heightened worry in some representatives and senators.
 

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