FISA News
Two quick items of interest.
First, I just finished reading the statement that Assistant Attorney General Kenneth Wainstein delivered to the House Judiciary Committee on Tuesday regarding the new FISA law. It's an incredibly important document, one that we all need to store away for future reference. In the statement, Wainstein discusses each provision of the bill at some length and addresses various concerns that people like myself have raised about the broad language of many of the key provisions. With respect to a number of these concerns, Wainstein's response is, essentially, 'that's not how we interpret the bill and we have no intention of using it for that purpose.' His interpretations of the statutory language are not particularly convincing, but he is rather emphatic that the government will not use these new authorities in the ways people like myself have suggested they could. We'll see. It's highly unusual for the executive branch to interpret statutes in ways that unnecessarily limit executive power. If the government eventually adopts a broader interpretation of the statute, this may turn out to be a very important document.
Second, this story from James Risen caught my attention. Its headline reads "Warrantless Wiretaps Not Used, Official Says." But here's what it actually says:
First, I just finished reading the statement that Assistant Attorney General Kenneth Wainstein delivered to the House Judiciary Committee on Tuesday regarding the new FISA law. It's an incredibly important document, one that we all need to store away for future reference. In the statement, Wainstein discusses each provision of the bill at some length and addresses various concerns that people like myself have raised about the broad language of many of the key provisions. With respect to a number of these concerns, Wainstein's response is, essentially, 'that's not how we interpret the bill and we have no intention of using it for that purpose.' His interpretations of the statutory language are not particularly convincing, but he is rather emphatic that the government will not use these new authorities in the ways people like myself have suggested they could. We'll see. It's highly unusual for the executive branch to interpret statutes in ways that unnecessarily limit executive power. If the government eventually adopts a broader interpretation of the statute, this may turn out to be a very important document.
Second, this story from James Risen caught my attention. Its headline reads "Warrantless Wiretaps Not Used, Official Says." But here's what it actually says:
The National Security Agency has not conducted wiretapping without warrants on the telephones of any Americans since at least February, the nation’s top intelligence officer told Congress on Tuesday.I'd like to know the exact words McConnell used. If he said "the government has conducted electronic surveillance only after seeking court-approved warrants,"--as Risen suggests--he was probably just being weaselly. Remember, the Protect America Act redefined "electronic surveillance" to exclude any surveillance directed at someone outside of the U.S. So if you intercept communications between an American and someone outside the U.S., and you claim to be directing the surveillance at the person outside the U.S., it's not considered electronic surveillance. In other words, Americans are still having their communications intercepted without warrants; it's just no longer considered electronic surveillance.
Mike McConnell, the director of national intelligence, told the House Judiciary Committee that since he took office that month, the government has conducted electronic surveillance only after seeking court-approved warrants.
posted by A.L. at 1:18 PM
3 Comments:
Indeed, I hope that what the Assistant AG states is indeed true.
But it still begs the question as to why this Administration was so reluctant--and even backtracked on a supposed deal that had been reach--to ensure that there are no misunderstandings through clear (or at least, clearer) text.
In short, if they aren't doing what those who care about civil liberties indicate could be done through the nebulosity of the current text, why not agree to re-write it to assuage fears of overreach?
I'm often simplistic. My method is to break things down to the easiest form to understand them.
Many years ago there was a book called Please Don't Eat the Daisies by Erma Bombeck.
She left her children at home only to return to find they'd eaten the daisies on the dining room table.
Because - she hadn't specifically told them not to.
That's a legislator. A child. Be specific about what they can or cannot do or they'll take advantage every time.
A.L.,
Just for the record, since I have made much of my own reading of the Protect America Act, I should note that McConnell testified that the act does require that the procedures in the new section 105B must be used to support a finding under 105Aa that the surveilled target is outside the United States. His prepared statement said:
First, it clarified that the definition of electronic surveillance under FISA should not be construed to encompass surveillance directed at a person reasonably believed to be located outside the United States. This provision is at the heart of this legislation: its effect is that the IC must no longer obtain court approval when the target of the acquisition is a foreign intelligence target located outside the United States. ...
Second, the Act provides that the FISA Court has a role in determining that the procedures used by the IC to determine that the target is outside the United States are reasonable. Specifically, the Attorney General must submit to the FISA Court the procedures we use to make that determination.
I still fail to see where the text of the statute actually requires that, but FWIW, that is McConnell's sworn testimony.
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