Al Qaeda on the Speed-Dial

Marty Lederman

"There is nothing to fear in the [new FISA] bill," says lead sponsor Senator Kit Bond, "unless you have Al Qaeda on your speed dial."

Glenn Greenwald catches an eerie historical "coincidence": Back in the late 1960's Congress similarly enacted a bill that gave the President virtually unfettered discretion to engage in electronic surveillance for national security purposes. Responding to anxieties about possible abuses of this authority, Attorney General John Mitchell assured Americans that "Any citizen of this United States who is not involved in some illegal activity has nothing to fear." Of course, that promise was empty, and the ensuing gross abuses are what prompted Congress to enact FISA nine years later, thereby providing some judicial oversight to prevent such intrusions on the privacy of U.S. persons.

I'd like to focus, however, on a much more fundamental problem with Senator Bond's statement: It's simply not true, even if the government does not abuse the new statutory authorities.

The new statute permits the NSA to intercept phone calls and e-mails between the U.S. and a foreign location, without making any showing to a court and without judicial oversight, whether or not the communication has anything to do with al Qaeda -- indeed, even if there is no evidence that the communication has anything to do with terrorism, or any threat to national security.

As I've previously explained, the NSA's objective here is not simply to surveil foreigners who it already suspects as being part of al Qaeda -- it can easily obtain a FISA order as to those folks. Nor is the purpose of the new law to allow warrantless surveillance of international-to-international calls -- that's already legal, too. As is the warrantless overseas interception of calls between foreigners and U.S. persons.

What the agency is seeking, instead, is to be able to intercept foreign communications (i) coming across domestic wires where (ii) NSA does not have probable cause to believe that any of the parties is a terrorist or agent of a foreign power; and (iii) there is a chance that some of the intercepted communications will be with persons in the U.S.

The new law allows the NSA to do this, by permitting what David Kris has called a form of "vacuum-cleaner" surveillance that (in the words of the new law) "target[s] . . . persons reasonably believed to be located outside the United States to acquire foreign intelligence information."

Under this new standard, there's no need that the surveillance have any connection to al Qaeda, or terrorism, or even to national security. The only substantial requirements are that someone overseas be a "target" and that one "significant purpose" of the surveillance be to acquire "foreign intelligence information" -- which is very broadly defined to include most anything that occurs overseas and in which the federal government might have an interest (including information necessary to protect against the full range of foreign threats to national security, and information with respect to a foreign power that is necessary to the national defense or foreign affairs).

In the course of this vast interception of foreign-to-domestic communications, the NSA will inevitably obtain extensive information about U.S. persons having no connection whatsoever to al Qaeda or terrorism. The bill does require a modest type of "minimization" procedures designed to "minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons." Which sounds reassuring. However, such minimization would be required only "consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information." (And recall how broadly "foreign intelligence information" is defined.) Moreover, even where the information is not foreign intelligence information, the law permits "the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes."

That is to say, even if you were not the original target of the surveillance, the government can make use of and disseminate information about you if your international phone calls or e-mails reveal evidence of any crime. And, of course, if those same communications provide evidence that you are an agent of a foreign power, that evidence can then be used to obtain an order for surveillance of your own phone and/or computer more broadly, under FISA itself.

Accordingly, Kit Bond's statement should be revised to read:

"There is nothing to fear in the new FISA bill unless you make international phone calls or e-mails that arguably implicate the federal government's national security, foreign affairs or law enforcement interests."
Posted 12:27 PM by Marty Lederman [link]