McConnell's Objection to the Democratic Versions of the FISA Bill
Not much time to write tonight, but I wanted to briefly highlight this very helpful post by Marcy Wheeler.
In an interview with the El Paso Times (huh?) the other day, Director of National Intelligence Mike McConnell made a number of significant disclosures regarding the administration's surveillance activities and the legislative wrangling over the new FISA bill. At one point in the interview, he was asked what his major hang up was with the various Democratic versions of the bill. Here's what he said:
The only difference is that the Democratic bills require the court to review these minimization procedures to determine if they do in fact meet the definition under section 101(h). Under the version of the bill that eventually passed, the Attorney General need only certify that such procedures are in place. The court has no power to review that aspect of the certification or to review the minimization procedures themselves.
So *if* McConnell's primary objection to the Democratic bills was related to minimization language, as he claims, what he was really objecting to was there being any independent review of these procedures. He wanted the Attorney General to have unreviewable discretion to determine what these procedures should be, and he got his wish (good job Democrats!).
I should also point out that the Democratic versions of the bill were structured very differently and this difference affects the minimization analysis. Neither the House nor the Senate Democratic bills contained the major definitional carve-out that was included in the version that eventually passed.
In the final version of the bill, section 105A carves out all communications "directed at" people outside of the country from the definition of "electronic surveillance." Section 105B is then an affirmative grant of warrantless surveillance authority--subject to certain conditions--that applies only to communications that fall outside the definition of "electronic surveillance."
The Democratic bills work very differently. Under both, section 105A is a very narrow carve out that simply clarifies that foreign-to-foreign communications are not "electronic surveillance." The affirmative grant of authority under 105B then allows warrantless surveillance--subject to certain conditions--of certain categories of "electronic surveillance," specifically those that are directed at someone outside of the United States.
As I've explained in previous posts, this structural difference is highly significant. Under the Democratic versions, the warrantless surveillance allowed under 105B falls within the definition of "electronic surveillance," meaning FISA's exclusivity clause and penal provisions apply to it. That means that if the President wants to conduct this sort of surveillance, he must follow the procedures of 105B (which include minimization) or he will be committing a felony.
Under the version of the bill that actually passed, however, the warrantless surveillance authorized under 105B is not "electronic surveillance" and therefore FISA's exclusivity clause and penal provisions do not apply. In other words, the president is free to conduct this sort of surveillance on his own authority, independent of 105B. The administration need not invoke 105B at all. Indeed its only motivation for doing so would be if it cannot secure the voluntary cooperation of the relevant communications company or custodian. In cases where it can get voluntary cooperation, no minimization would be required, at least by statute.
Moreover, even when 105B is invoked, the Attorney General has unreviewable discretion in determining what minimization procedures to implement. And, at least as far as I can tell, there are no statutory consequences for violating any of 105B's provisions. FISA's penal and civil liability provisions only apply to "electronic surveillance," which 105B surveillance, by its own terms, is not.
Okay, I've gone on a lot longer than I thought I would. That's enough for tonight. Must sleep.
In an interview with the El Paso Times (huh?) the other day, Director of National Intelligence Mike McConnell made a number of significant disclosures regarding the administration's surveillance activities and the legislative wrangling over the new FISA bill. At one point in the interview, he was asked what his major hang up was with the various Democratic versions of the bill. Here's what he said:
So I walked over to the chamber and as I walked into the office just off the chamber, it's the vice president's office, somebody gave me a copy. So I looked at the version and said, 'Can't do it. The same language was back in there.'In her post, Marcy compares the final version of the bill to the versions sponsored by House and Senate Democrats. And sure enough, with respect to minimization requirements, the bills are all identical. Each of them requires that any surveillance conducted in accordance with the new grant of authority under 105B be subject to minimization procedures that "meet the definition of minimization procedures under section 101(h)."
Q: What was it?
A: Just let me leave it, not too much detail, there were things with regard to our authorities some language around minimization.
The only difference is that the Democratic bills require the court to review these minimization procedures to determine if they do in fact meet the definition under section 101(h). Under the version of the bill that eventually passed, the Attorney General need only certify that such procedures are in place. The court has no power to review that aspect of the certification or to review the minimization procedures themselves.
So *if* McConnell's primary objection to the Democratic bills was related to minimization language, as he claims, what he was really objecting to was there being any independent review of these procedures. He wanted the Attorney General to have unreviewable discretion to determine what these procedures should be, and he got his wish (good job Democrats!).
I should also point out that the Democratic versions of the bill were structured very differently and this difference affects the minimization analysis. Neither the House nor the Senate Democratic bills contained the major definitional carve-out that was included in the version that eventually passed.
In the final version of the bill, section 105A carves out all communications "directed at" people outside of the country from the definition of "electronic surveillance." Section 105B is then an affirmative grant of warrantless surveillance authority--subject to certain conditions--that applies only to communications that fall outside the definition of "electronic surveillance."
The Democratic bills work very differently. Under both, section 105A is a very narrow carve out that simply clarifies that foreign-to-foreign communications are not "electronic surveillance." The affirmative grant of authority under 105B then allows warrantless surveillance--subject to certain conditions--of certain categories of "electronic surveillance," specifically those that are directed at someone outside of the United States.
As I've explained in previous posts, this structural difference is highly significant. Under the Democratic versions, the warrantless surveillance allowed under 105B falls within the definition of "electronic surveillance," meaning FISA's exclusivity clause and penal provisions apply to it. That means that if the President wants to conduct this sort of surveillance, he must follow the procedures of 105B (which include minimization) or he will be committing a felony.
Under the version of the bill that actually passed, however, the warrantless surveillance authorized under 105B is not "electronic surveillance" and therefore FISA's exclusivity clause and penal provisions do not apply. In other words, the president is free to conduct this sort of surveillance on his own authority, independent of 105B. The administration need not invoke 105B at all. Indeed its only motivation for doing so would be if it cannot secure the voluntary cooperation of the relevant communications company or custodian. In cases where it can get voluntary cooperation, no minimization would be required, at least by statute.
Moreover, even when 105B is invoked, the Attorney General has unreviewable discretion in determining what minimization procedures to implement. And, at least as far as I can tell, there are no statutory consequences for violating any of 105B's provisions. FISA's penal and civil liability provisions only apply to "electronic surveillance," which 105B surveillance, by its own terms, is not.
Okay, I've gone on a lot longer than I thought I would. That's enough for tonight. Must sleep.
posted by A.L. at 1:35 AM
3 Comments:
Excellent, clear explanation, A.L. [And far more helpful than those hurriedly proffered by Members of Congress as they proceeded to rubberstamp this unConstitutional law into existence.]
For the record, here are some of the explanations given by senators during the hour of "debate" they held on the two FISA bills August 3rd:
Harry Reid:
"The Bond legislation, on the other hand, is not something I can support. It authorizes, in my opinion, warrantless searches of Americans' phone calls, e-mails, homes, offices and personal records and for however long it is appealed to the court of review and the Supreme Court takes. This process could take months or indeed years.
Even worse, the search does not have to be directed abroad, just concerning a person abroad, any search, any search inside the United States, the Government can claim to be concerning al-Qaida is authorized."
Carl Levin (he did the negotiating on behalf of the Levin/Rockefeller bill):
"Now, if there is an incidental access to U.S. citizens, we obviously will permit that. That is not the problem. It is called minimization. We do not try to affect that. [snip]
The Bond bill goes beyond that. In its first section it says:
'Nothing in the definition of electronic surveillance under section 101(f) shall be construed to encompass surveillance directed at a person reasonably believed to be located outside of the United States.'
Any person. Does not say a foreign person. Admiral McConnell has been very precise. We have all heard him over and over again. He has been precise in his written statements, he has been precise orally. They want access, and we have to give them access.
When foreign persons communicate with foreign persons, even though, as our bill says, the communications might be routed through the United States, that is the problem that must be cured. It is cured in both bills. But we avoid doing, in our bill, what the Bond bill does, which is to say, as it very explicitly does: That if surveillance is directed at a person, which means any person--it could be a U.S. person, reasonably believed to be located outside of the United States--then it is permitted, it is authorized, in that first section of the Bond bill, 105(a)."
Russ Feingold:
"I thank the majority leader and Senator Rockefeller, Senator Levin, Senator Leahy, and especially Senator Whitehouse, who put tremendous effort into this, for trying to make this as good as possible. [snip]
But we cannot pass the Bond-McConnell proposal. This bill would go way too far. It would permit the Government, with no court oversight whatsoever, to intercept the communications of calls to and from the United States, as long as it is directed at a person--any person, not a suspected terrorist--reasonably believed to be outside the United States. That means giving free rein to the Government to wiretap anyone, including U.S. citizens who live overseas, servicemembers such as those in Iraq, journalists reporting from overseas, or even Members of Congress who are overseas and can call home to the United States. This is without any court oversight whatsoever. That is unacceptable.
It goes far beyond the identified problem of foreign-to-foreign communications that we all agree on. It goes far, far beyond the public descriptions of the President's warrantless wiretapping program. What little judicial review the bill does provide is essentially meaningless."
Dianne Feinstein:
"The Senator from Wisconsin might be interested to know that some of us just met with Admiral McConnell, particularly to discuss Senator Feingold's concern. There is a different point of view. A U.S. citizen in Europe is, in fact, covered. A U.S. citizen in Europe, the minimization under certain specific laws, not FISA, but precisely 12333 point something, which I cannot remember at the present time, comes into play. That U.S. citizen is subject to a warrant from the court. [snip]
We are going out of session. There is no time. I think this is unfortunate. I received the Democratic bill about 20 minutes ago. I went into the leader's office, tried to sit down and get briefed. Up to this point I still don't understand it. I spent all afternoon on the McConnell bill. I am just beginning to understand the subtleties in it and the other laws that come into play."
Bill Nelson of Florida:
"Mr. President, both bills in front of us allow foreign-to-foreign intelligence collection without a court order. What is going to surprise you is, neither bill protects an American citizen abroad from being collected upon. Neither bill does. That protection comes in the President's Executive order. [snip]
Then, with cool deliberation, we are going to have to address the problem that is omitted in both bills."
Sheldon Whitehouse:
"The piece of legislation that we are asked to judge puts exclusive rights in the Presidency to determine what gets collected against Americans overseas and what gets collected against Americans in this country who have communications from overseas that are intercepted. And it allows that determination to be made, as was just said, pursuant to a Presidential Executive order.
We are a nation of separated powers. We established the FISA Court to have this authority. The court should oversee those processes."
FDL highlights a comment by bmaz that states something similar regarding the telco liability covereage, being pushed for when the legislature returns. Bmaz states that the whole telco thing is a red herring, that what they actually desire is removal of any danger of felony charges against the administrative branch. For past, present, and future activities--I would assume.
A.L.,
I think I have a little better handle on what the minimization issue might mean to the NSA, after spending some effort analyzing executive-branch documents linked by Marty Lederman.
Having examined this next layer, I think I know more about the minimization puzzle, but there is much that is still secret. On perhaps more than one level, I think, the administration is seeking to avoid the robust minimization rules traditionally applied under FISA.
Rather than repeat everything here, let me just post a link to my comments on Marty's post at Balkinization.
BTW, as for why McConnell chose the El Paso Times as his platform: It is the hometown newspaper of House Intelligence Chairman Silvestre Reyes, whose constituents McConnell was addressing. Reyes will be a key player if and when FISA issues are reopened after Labor Day.
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