For Legal Analysis, Stick to the Blogs

It took a while, but finally a major news organization has noticed something that I (and a few other bloggers) have been patiently trying to explain for the last couple weeks: the new FISA bill is not the minor legislative adjustment it's been advertised to be, but rather a major overhaul of the FISA statutory framework that grants sweeping new powers to the executive branch.

Unfortunately, James Risen and Eric Lichtblau of the New York Times don't do a very good job of explaining what the problem is. While they clearly talked to a number of smart lawyers in writing the piece, the legal analysis gets lost in translation. For example, they write:

Several legal experts said that by redefining the meaning of “electronic surveillance,” the new law narrows the types of communications covered in the Foreign Intelligence Surveillance Act, known as FISA, by indirectly giving the government the power to use intelligence collection methods far beyond wiretapping that previously required court approval if conducted inside the United States.

These new powers include the collection of business records, physical searches and so-called “trap and trace” operations, analyzing specific calling patterns.

For instance, the legislation would allow the government, under certain circumstances, to demand the business records of an American in Chicago without a warrant if it asserts that the search concerns its surveillance of a person who is in Paris, experts said.

This section, like most of the article, is a mess. Risen and Lichtblau have conflated two very different problems with the new law. Section 105A of the new bill redefines "electronic surveillance" to exclude any acquisitions that are "directed at a person reasonably believed to be located outside of the United States." That definitional change, while highly significant, says nothing at all about the methods of surveillance the government can utilize. Any type of surveillance is outside of FISA's scope so long it is "directed at" someone outside of the country.

When they refer to the statute authorizing "methods far beyond wiretapping," they're actually referring to the new affirmative grant of authority under section 105B. That's a wholly independent problem with the bill. They're right, though, that under the terms of section 105B, the government has been given the power to acquire all sorts of information from people within the United States so long as it "concerns" someone believed to be outside the United States--all without a warrant. And the language is certainly broad enough to include physical--in addition to electronic--acquisitions. Section 105B acts like an all-purpose administrative warrant that allows the government to bypass any number of other laws and secretly acquire anything that it deems "foreign intelligence information" from any source.

In other words, both section 105A and 105B of the new bill are highly objectionable, but for different reasons. I don't blame Risen and Lichtblau for not understanding this stuff. The way this statute interacts with pre-existing FISA provisions, with other statutes, and with the Constitution, is complicated. But I think this is a perfect example of why coverage of complicated legal issues in the blogosphere is almost always superior to mainstream news coverage. In the blogosphere, most of the legal analysis is done by practicing lawyers and law professors, people who grapple with these issues all the time. But with a few notable exceptions (Dahlia Lithwick of Slate comes to mind) most mainstream news coverage of legal issues is done by journalists who have no legal training. And while they try very hard to consult lawyers and educate themselves on the issues, sometimes there's no substitute for actual legal experience.

As I always tell people, you don't really learn much of anything substantive in law school (at least that you remember). What you do learn is a how to think like a lawyer (which can be good and bad). Anyway, this navel-gazing post has gone on long enough. To the extent I have a point, I suppose it's that I wish the major new organizations, particularly the newspapers, would hire more reporters and writers with legal backgrounds. It would vastly improve the quality and coherence of articles like this one.