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What the FISA Debate is Not About

By Jack M. Balkin

Come this August, some of the electronic surveillance orders that were approved pursuant to the 2007 Protect America Act will begin to expire. As of now, there is no consensus in Congress on a replacement statute; therefore, as the New York Times reports tomorrow, "Congressional and intelligence officials are bracing for the possibility that the government might have to revert to the old rules of terrorist surveillance, a situation that some officials predict could leave worrisome gaps in intelligence. . . . [O]fficials have been preparing classified briefings for Congress on the intelligence 'degradation' they say could occur if there is no deal in place by August."

What are these "old rules," anyway -- the ones that would be back in play if there is no amendment enacted by August, and that would cause such an intel "degradation"? That would be FISA, of course -- a statute that was amended at the behest of the Executive many times since its enactment in 1978, and used effectively by the NSA for more than two decades. The Attorney General is quoted as saying that a return to the FISA legal regime would be "unthinkable." But why? It is very difficult to figure out, either from the Times story or from other public sources, just what the big deal would be. Here's what the Times has to say about the possible "degradation" of intelligence capabilities:

A return to the old rules, [officials] said, would mean that government lawyers, analysts and linguists would once again have to prepare individual warrants, potentially thousands of them, for surveillance of terrorism targets overseas. Telecommunications companies would also have to spend considerable time shutting down existing wiretaps, and then start them up again if ordered under new warrants, officials said. In some instances, the broad orders given to the companies starting last August cover tens of thousands of overseas phone numbers and e-mail addresses at one time, people with knowledge of the orders said. A senior intelligence official, speaking on condition of anonymity, said the administration was concerned that reverting to the older standards and requiring individual warrants for each wiretap would create a severe gap in overseas intelligence by raising the bar for foreign surveillance collection. In some cases, the government might simply be unable to establish in court why it suspected that a foreign target was connected to terrorism. Part of the problem, officials said, is that communications going from one foreign country to another sometimes travel through a telephone switch on American soil and, under some interpretations of the older rules, could not be tapped without an individual warrant.

It is exceedingly difficult to make any sense of this debate without access to nonpublic information, but I think it is possible to clarify several things, which cumulatively render the "crisis" considerably less acute than Administration officials would have us believe.

1. First, the Times story suggests that "a return to the older surveillance rules" would "requir[e] individualized warrants for all wiretaps." That's simple not the case. FISA has never required individualized warrants or court orders for all wiretaps.

2. In particular, contrary to the dire warnings in the quote above (and as David Kris has been singularly resolute in emphasizing), FISA does not regulate phone communications "going from one foreign country to another," even if the calls "travel through a telephone switch on American soil." It is simply disingenuous of the Administration to suggest otherwise. Perhaps there are -- somewhere -- some "interpretations" of FISA that would support such a notion . . . but the Administration itself has (properly) rejected such interpretations. As the Washington Post reported in March:

Director of National Intelligence Mike McConnell . . . has repeatedly said FISA should be changed so no warrant is needed to tap a communication that took place entirely outside the United States but happened to pass through the United States. But in response to a question at [an ABA] meeting by David Kris, a former federal prosecutor and a FISA expert, [Assistant Attorney General Kenneth] Wainstein said FISA's current strictures did not cover strictly foreign wire and radio communications, even if acquired in the United States.

That is to say, NSA has always been free under FISA to surveille all foreign-to-foreign phone calls, even by intercepting such calls at U.S. switches, without the need for any judicial order.

Then what's the big deal? Principally two things, as far as I can tell:

3. Surveillance of foreign-to-foreign e-mails was arguably covered by FISA (as "electronic surveillance" under 1801(f)(4)), if acquired from storage on a server in the United States, because stored e-mail is neither a "wire communication" nor a "radio communication" under FISA. Thus, come this August, if there is no statutory amendment, U.S. law might once again require a court order for such interceptions.

The important thing to note about this possibility, however, is that there is absolutely no legislative resistance to amending this gap in FISA and treating foreign-to-foreign e-mails the same way that foreign-to-foreign phone calls are treated. If this is the big problem, it could be fixed tomorrow, likely by a 535-0 vote.

4. Which leads me to suspect that the main problem is not intercepts of communications that are known to be foreign-to-foreign, but instead the acquisition of numerous communications that might involve U.S. persons here in the United States. Perhaps, for example, certain types of surveillance of wire "switches" in the U.S. do not give the NSA the capability, at the outset, to tell if a particular communication involving a "target" in a foreign location has a terminus in the U.S. -- in which case at least some unknown number of the communications intercepted at the domestic switch would be "electronic surveillance" requiring a FISA court order.

Now, even if this is the case, FISA should not present much of a burden in the mine run of cases -- that is, in those instances where the NSA has evidence that the person being targeted overseas is an "agent of a foreign power," which includes (but is not limited to) someone who "engages in international terrorism or activities in preparation therefore." 50 U.S.C. 1801(b)(1)(C). In such cases, FISA court orders should be available as a matter of course. If, for example, NSA were able to show that the targeted foreign person is an al Qaeda agent (or other terrorist), as has been touted as the threshhold under the "Terrorist Surveillance Program," the agency should be able to readily obtain a FISA court order, even for a whole series of communications, some of which might be with U.S. persons.

Therefore, as I surmised last summer, it must be the case that the NSA's objective is not simply to surveille foreigners who it already suspects as being part of al Qaeda -- it can obtain a FISA order as to those folks. 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.

Under FISA, the NSA cannot engage in surveillance where all three of those conditions obtain. (Indeed, insofar as the surveillance would intercept communications of U.S. persons, without proof that either party is the agent of a foreign power, it would probably raise serious Fourth Amendment questions, as well, at least according to the pre-FISA cases in which courts of appeals considered the question.)

Without knowing more, I'd guess that this type of surveillance is the crux of the alleged "degradation" that might occur if the law reverts back to the FISA-based regime. And it's not immediately obvious how such cases should be treated under the law: What, if anything, should NSA be required to show in order to engage in undifferentiated, widescale surveillance in such cases? To whom should the agency make the requisite showing -- the FISA court? an Executive official? Most importantly, what minimization requirements should be mandated in such a case?: If the surveillance does uncover communications of U.S. persons, under what circumstances should NSA be permitted to preserve and use such U.S. person communications?

Those are, I think, the hard questions. However they are resolved, the Times story suggests that there might be some momentum toward two things that I stressed when I wrote about this last August:

1. Any new amendment should reinforce and strengthen FISA's "exclusive means" provision, to make sure that the Executive branch cannot so readily bypass FISA as it did from 2001-2007. Moreover, the statute could specify that telecom companies will not have immunity from liability, and will not be able to invoke any state secrets privilege, if they facilitate surveillance based upon some extra-FISA opinion of the Department of Justice (e.g., an OLC opinion based on Article II of the Constitution).

2. Congress should insist on timely and comprehensive legislative oversight, not limited to the "gang of eight," and permitting close review by those legislative aides and counsel -- not simply members -- who are most sophisticated in the ways of electronic surveillance, intelligence, and the law.

Full post as published by Balkinization on June 10, 2008 (boomark / email).