Balkinization  

Saturday, December 01, 2007

And if You Really Do Want to Understand the FISA Debate

Marty Lederman

I wrote last week that, because the NSA's techniques are classified, and because FISA and its fixes are intentionally "written in such enigmatic terms that only those who have been briefed in executive session will understand them," it is extremely difficult to get a fix on exactly what the Administration's proposed amendments would authorize.

Well, there is one place you now can go to get a good sense of what is probably at stake: this monograph by David Kris, which is surely the most comprehensive and careful treatment publicly available. Highly recommended.

Comments:

Marty, thanks for the link to that David Kris FISA monograph. Tis superb!
 

I appreciate the link especially from an "insider" from 2000-3. (Associate Deputy Attorney General / supervising use of FISA).

His nuanced discussion makes his skepticism on some aspects of the administration's case particuarly powerful. Overall, it adds to an important and complicated issue, underlining the shoddy nature of the rush job last August. [shameful]

Various aspects of the monograph was interesting, including the point that FISA left open various "vacuum" types of survelliance. Likewise, this quote underlines a fundamental point:

"Each generation of Americans is responsible for making its own judgments, as Judge Royce Lamberth, the former Presiding Judge of the FISA Court, has explained:

Like many competing American values, liberty and security converge in law. We strike the balance between them not only in the many particular statutes, orders, and policies of the government, but also in the ongoing process of Legislative, Executive, and Judicial action – and reaction – within the framework prescribed by the Constitution. Our national security is therefore cast, and continually recast, in the crucible of our legal system."

Both the changing norms and the fact that ALL branches and the "reaction" are important here. A simplistic take, including voting for legislation which in practice very well might work a lot different than the pie in the sky vision of some, is far from ideal.

To be trite, the last few years hopefully will be a "live and learn" experience.
 

After making a superb argument that geographic criteria for determining when a warrant is required for electronic intelligence gathering (ELINT) is nearly obsolete, Mr. Kris' worry that ELINT targeting foreign terrorist groups performing purely domestic calls is a bit strange.

Why should agents of foreign terrorist group who have successfully invaded the United States have their domestic communications protected? Indeed, our need for intelligence is greater when the enemy has successfully invaded the United States and is closer to attacking our citizens.

Mr. Kris actually makes a good argument that the FISA architecture should be discarded and we should return to the target and purpose test used by the courts for application of the 4th Amendment warrant requirement. If the target of the surveillance is an agent of a foreign group (regardless of nationality) and the primary purpose of the surveillance is for intelligence gathering, then no warrant is required.

This approach protects innocent Americans without granting the enemy 4th Amendment protections.
 

"Bart" DePalma:

After making a superb argument that geographic criteria for determining when a warrant is required for electronic intelligence gathering (ELINT) is nearly obsolete, ...

"Not exactly", as Hertz says. He points out that e-mail that is stored in the U.S. ought to be treated the same way as communications in transit for phone calls.

... Mr. Kris' worry that ELINT targeting foreign terrorist groups performing purely domestic calls is a bit strange.

Not at all. He explains that the thought that the wire restrictions for domestic communications could be explained by the fact that such taps done domestically could involve a lot more purely domestic traffic. I'd note that FISA also had a warrant provision for radio communications if sender and all intended recipients were domestic.

Why should agents of foreign terrorist group who have successfully invaded the United States have their domestic communications protected?...

They're not. Get a warrant and show that's who you're listenting to. IF you want to snoop domestic traffic indiscriminately, you're OOL.

... Indeed, our need for intelligence is greater when the enemy has successfully invaded the United States and is closer to attacking our citizens.

And it's even greater yet when the "enemy" is in fact home-grown domestic. Get the freaking warrant.

Mr. Kris actually makes a good argument that the FISA architecture should be discarded and we should return to the target and purpose test used by the courts for application of the 4th Amendment warrant requirement....

And while the Fourth Amendment provides you no protection against your conversation being snooped without a warrant on you, if you happen to call someone for whom a valid warrant exists, it still requires a warrant. That's a reasonable compromise.

... If the target of the surveillance is an agent of a foreign group (regardless of nationality) and the primary purpose of the surveillance is for intelligence gathering, then no warrant is required.

Why should that be? What's the matter with getting the freakin' warrant? If the gummint is allowed to decide who the "enemies" are, we get what we got with Nixon.

This approach protects innocent Americans without granting the enemy 4th Amendment protections.

The "enemy" already has Fourth Amendment protections. That doesn't mean freedom from wiretapping, any more that the Fourth Amendment means you're free from searched in criminal matters. The question is who we allow, and under what circumstances and under what standard of proof and what oversight, to be wiretapped. The protections there aren't for the Terra-ists; they're for us, "Bart".....

Cheers,
 

I said:

And while the Fourth Amendment provides you no protection against your conversation being snooped without a warrant on you, if you happen to call someone for whom a valid warrant exists, it still requires a warrant. That's a reasonable compromise.

Which is to say, if you want a snoop for criminal purposes, you can't snoop conversations for which you have no probable cause to know that either of the parties is doing something criminal. One of them, at least, must be enough of a "probable" baddie so that you can convince a judge and get the warrant.

What we have with the "no warrant" provisions for "foreign intelligence" purposes is that neither party needs to be shown to be a baddie to anyone (other than the snoops, if they even give a fig about that). Which makes anyone fair game.

FISA says this is only permissible when both parties are foreign (they're furriners, screw 'em). Once you have a "U.S. person" involved, you should be prepared to show why, in the name of "national intelligence", you should be allowed to snoop that person.

Keep in mind that, in writing such laws that protect privacy, it's not the "baddies" that we're trying to protect; if they're bad they should be snooped (after someone shows that they are bad). And if our conversations with such "baddies" is snooped, dem's da breaks. We are trying to protect our own privacy rights. When we get rid of warrant requirements, so that anyone the gummint thinks is a "person of interest" is fair game, all bets are off.

Cheers,
 

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