A Major Loophole in the New FISA Legislation?

(updates below) (updated again at 4:30 p.m, 8/10)

There appears to be a major legal loophole in the new FISA legislation that was hastily passed by Congress just prior to the August recess.

Perhaps the most important provision in the entire FISA legal framework is 18 U.S.C. § 2511(2)(f)--commonly known as the exclusivity provision--which states that the "procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted."

It is through this provision that Congress made it clear that FISA's warrant requirement and other procedures were mandatory and that it did not intend to leave the president with any residual authority to conduct warrantless surveillance outside of the FISA framework.

The amendments to FISA passed by Congress last week left this key provision intact. Unfortunately, the language of the new amendments effectively nullifies this provision, at least as it pertains to the surveillance activities the amendments purport to regulate.

The exclusivity provision states that FISA (in conjunction with Title III) shall be the "exclusive means by which electronic surveillance . . . may be conducted." The key term here is "electronic surveillance." Section 105A of the bill passed by Congress last week states:

Nothing in the definition of electronic surveillance under 101(f) shall be construed to encompass surveillance directed at a person reasonably believed to be located outside of the United States.

Under this narrowed definition, many--if not most--intercepted communications between someone in the U.S. and someone in another country (even if it that person is a U.S. citizen) would not be considered "electronic surveillance."

That's significant because, as laid out above, the exclusivity provision only applies to "electronic surveillance, as defined in section 101" of FISA.

The new amendments to FISA purport to establish a procedure through which the Director of National Intelligence and the Attorney General can authorize the acquisition of communications of those "reasonably believed to be located outside the United States." The DNI and Attorney General are supposed to complete various certifications, follow minimization requirements, and submit the program's operating procedures to the FISA court for review.

These oversight requirements have been criticized as weak and toothless (which they are). But here's the thing: under the terms of FISA, as amended, it's not even clear that these minimal oversight requirements are mandatory. By its terms, FISA only purports to be provide the exclusive means for conducting electronic surveillance. But these new amendments, by their terms, only apply when "the acquisition does not constitute electronic surveillance."

In other words, there is nothing in FISA, as currently constituted, that says that these new procedures are the "exclusive means" by which the administration can conduct this sort of surveillance. Given the structure of the statute, if the administration decided to bypass these new FISA procedures altogether and rely solely on the President's residual Article II powers, it would have at least a colorable statutory argument for doing so.

You may think that Congress's desire to create exclusive procedures for conducting this kind of surveillance can be inferred from the fact that they bothered to enact them at all. After all, why make optional rules? And I'd agree with you. But this administration doesn't interpret laws in the way that is most reasonable or consistent with Congressional intent. It interprets them in a way that bestows maximal authority on the President and the executive branch. And the statutory argument for treating these new procedures as non-exclusive is actually quite a bit stronger than the statutory arguments the administration has relied on in authorizing the NSA program over the last six years.

Right now there are people in the Office of Legal Counsel in the Justice Department who are working on legal opinions interpreting this new law, and I guarantee you they will interpret it in whatever way gives the president the most options. Whether the President will choose to disregard these new procedures is anyone's guess. But if he does, it will undoubtedly be in secret and with a colorable legal argument to back it up. And that's unacceptable.

When amending laws like FISA, Congress has to be hyper-vigilant and really study the implications of the language it's enacting. This administration (and future ones) will exploit every loophole and ambiguity in an effort to aggrandize power. The more I look at this law and the circumstances under which it was enacted, the more convinced I am that this was an inexcusable act of political cowardice and a total abdication of Congressional responsibility.

UPDATE: Ubiquitous commenter JaO points out that it's instructive to look at 18 U.S.C. § 2511(2)(f) in its entirety, not just the second half:

Nothing contained in this chapter or chapter 121 or 206 of this title, or section 705 of the Communications Act of 1934, shall be deemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, and procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted.

This first half essentially disclaims any intent to interfere with the president's powers to conduct foreign intelligence gathering except with respect to "electronic surveillance as defined by section 101" of FISA. In other words, the president retains the power to do what he wants in these areas, which further supports the argument that the oversight mechanism laid out in last week's FISA bill is, for all intents and purposes, merely optional.

UPDATE II: Marty Lederman has a new post at Balkinization on this subject. He agrees that the procedures laid out in the new FISA bill are optional, but takes issue with characterizing this aspect of the law as a "loophole":

All of which is to say -- and I think JaO and I agree here -- that the real action in the new law is in section 105A, which simply exempts a huge amount of international communications from FISA altogether (even if the minimization requirements would apparently come back into play under a certified program). Anonymous Liberal calls this a "major legal loophole," but I don't quite understand how it's a "loophole"; it is, rather, the very be-all and end-all of the Act.

With all respect to Marty, I think he's overstating things a bit here. It may be obvious to him that this was the whole point of the statute (and therefore a feature, not a bug), but I don't think that's at all obvious to reporters covering this story or, frankly, to most members of Congress. The debate in Congress and the coverage of it in the media focused on whether the oversight procedures in the statute were sufficiently rigorous. I haven't seen anyone outside of a blog comment section point out that these procedures may not even be mandatory. That's an important point, and one that I suspect most reporters, members of Congress, and casual observers would view as a "major legal loophole." After all, optional rules aren't really rules at all.

Moreover, as Marty points out in an update, the DOJ submitted a court filing today in connection with the multi-district litigation in California that strongly implies that the oversight requirements in the new FISA bill are mandatory. In arguing that the plaintiffs lack standing, the Government writes:

Moreover, because the statute subjects such surveillance to certain procedures, minimization requirements, FISC review, and congressional oversight, Plaintiffs' allegations of a First Amendment chill are further negated. By Plaintiffs' own description, their alleged chill derives from their belief that the now-inoperative Terrorist Surveillance Program did not involve FISA minimization procedures, and while we have explained why that alleged chill was plainly insufficient before the FISA amendments, the statute now expressly applies FISA minimization procedures to surveillance conducted pursuant to the amendments and directed at individuals outside the United States.

The government clearly wants the court to believe, at least for its present purposes, that the procedures laid out in the statute are mandatory.

UPDATE III: This may fall into the "needless to say" category, but just to hammer home this point, it's worth noting that the criminal and civil liability sections of FISA are also limited to "electronic surveillance." Section 1809, which makes it a felony to violate FISA, states:

(a) Prohibited activities:

A person is guilty of an offense if he intentionally—
(1) engages in electronic surveillance under color of law except as authorized by statute; or

(2) discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by statute.

The civil liability section is similarly worded. So under FISA, as amended, no criminal or civil penalties apply to "surveillance directed at a person reasonably believed to be located outside of the United States," regardless of whether it's done in compliance with the bill's other provisions. In other words, even if the oversight provisions in the new bill are construed as mandatory, there are no consequences for breaking them.