The House FISA Bill Is Worth Supporting
Over at TPM, they've posted the full text of the Conyers/Reyes FISA bill. I just finished reading it and, at least at first glance, it appears to be a pretty well-crafted piece of legislation.
The bill aims to do two things. First, and least controversially, it aims to clarify that no court order is required to intercept purely foreign communications, even if they pass through cables or switches located within the United States. Second, the bill aims to allow the government--subject to various judicial and congressional oversight mechanisms--to intercept all communications of foreign targets on a warrantless basis, even if that target happens to communicate with someone inside the United States. This is further than groups like the ACLU are willing to go (they want individual warrants for all interceptions involving U.S. persons), but I think it is defensible on policy grounds, if it's done right.
So the question, at least for me, is whether the bill provides sufficient safeguards to protect against the abuse of these new surveillance powers. And, at least with respect to this particular version of the bill, I think the answer is yes. Like most legislation of this type, the Reyes/Conyers bill is quite complicated, so I'm going to try to walk you through the key provisions.
First (and perhaps most importantly), unlike the sloppily-written Protect America Act, this bill doesn't try to monkey around with FISA's definition of "electronic surveillance" (a move that leads to all sorts of undesirable collateral consequences, which I've discussed previously). Instead the Conyers/Reyes bill simply clarifies in section 105A(a) that:
The very next section--section 105A(b)--provides:
What's key about section 105A(b) is that it uses clear language like "targeting" and "shall be conducted," and it makes clear that it only applies to non-U.S. persons. The existing law, passed hastily over the summer, merely requires that surveillance be "directed at" someone outside the United States (there's no targeting requirement and the surveillance is not limited to non-U.S. persons). Moreover, the current law uses the term "may" instead of "shall" and is structured in a way that renders most of its provisions toothless and non-mandatory. Under the Reyes/Conyers bill, by contrast, it's quite clear that the procedures laid out in sections 105B and 105C are mandatory and fall within the scope of FISA's exclusivity clause (again, this is a result of not monkeying around with the definition of "electronic surveillance").
While I'm discussing section 105A(b), it's probably worth taking a moment to address an argument that is sure to be raised by Republican opponents of the bill. At first glance, the broad language of section 105A(b) would seem to require court approval for the kind of purely foreign surveillance activities that did not require court approval under the original FISA. This is not the case. Section 105A(b) only applies to "electronic surveillance," which by definition already excludes purely foreign-to-foreign communications. Moreover, by its own terms, section 105A(b) does not override section 105A(a)--which makes crystal clear that foreign-to-foreign intercepts do not require a court order. So the government only needs to invoke the basket warrant procedures laid out in sections 105B and 105C when it wants to intercept foreign communications in which one of the participants is a United States person within the United States, something that would have required an individual warrant under the original FISA (at least if the interception took place within the U.S.).
Section 105B of the bill is the provision that governs the issuing of so-called "basket warrants." It allows the government to apply to the FISA court for an order authorizing (for up to one year) the interception of communications of foreign targets, even if some of those communications involve U.S. persons. Unlike the bill passed this summer, however, this bill makes clear that the government must be targeting a non-U.S. person outside of the United States. It must also submit for judicial review the procedures it has in place (including minimization procedures) to ensure that U.S. persons are not targeted or improperly surveiled.
The language in section 105B is also much more precise than in the Protect America Act and cannot reasonably be construed to be the equivalent of a National Security Letter or an authorization to conduct physical searches, acquire business or phone records, etc.
Section 105C is the emergency provision. It allows the government to do on an emergency basis what an order under 105B would otherwise allow, provided that the Attorney General and DNI jointly determine that an emergency exists. This surveillance can continue for up to 45 days without an order, but the government must apply for a 105B order within 7 days after initiating surveillance.
The remainder of the bill is filled with provisions designed to provide meaningful oversight of the government's surveillance activities. Unlike the Protect America Act, FISA judges are empowered to conduct meaningful review of (and, if necessary, issue orders that modify) the procedures and guidelines the executive branch uses to conduct 105B surveillance.
The bill also requires the Justice Department Inspector General to conduct audits of such activities every 120 days and submit comprehensive audit reports to Congress which include such information as 1) the number of targets later determined to be located within the U.S., 2) the number of persons within the United States whose communications were intercepted, and 3) the number and nature of reports created containing information on United States persons.
Additionally, the Attorney General and DNI have to submit compliance reports every 120 days detailing their use of the new statute and cataloguing any instances of non-compliance. They are also required to submit annual reports detailing any use of their emergency authority under section 105C.
The bill also requires that the government create a record-keeping system that keeps track of all instances in which the identity of a United States person whose communications were acquired is disclosed to any other agencies or departments within the government.
Finally, and perhaps most importantly, the bill requires the Justice Department Inspector General to conduct a "complete audit of all programs of the Federal Government involving the acquisition of communications conducted without a court order on or after September 11, 2001, including the Terrorist Surveillance Program." It requires that the audit include all relevant documents, including legal memoranda, authorizations, certifications to telecommunication carriers, and court orders. The bill mandates that the IG's office be given the necessary security credentials to conduct the audit on an expedited basis and that, upon conclusion of the audit, a public report be issued (with a classified annex if necessary).
As a final measure, in order to pre-empt any future arguments that vague statues like the AUMF somehow implicitly authorize the bypassing of FISA, the bill reiterates FISA's "exclusive means" provision and states in no uncertain terms that nothing short of a specific statutory authorization for electronic surveillance shall be construed as creating an exception to FISA's exclusive requirements.
All in all, I'm pretty impressed with the bill. It seems like something I could support. Unfortunately, that almost surely means that it is not something the Bush administration will support. So the question is: how much of this bill will be left at the end of the day after key Democrats capitulate to Republican demands?
Given the relative certainly that some sort of bill will be passed, I think it may be more constructive for people who care about civil liberties to rally behind this bill rather than hold out for a bill that maintains the individual warrant requirement. The latter is not likely to be forthcoming, and even if it was, it would stand very little chance of commanding majority support in Congress. Moreover, it's at least arguable that a bill like this--with its various audit and reporting requirements--would provide as much or more safeguards against abuse than an individual warrant requirement (particularly given the FISC's tendency to rubberstamp nearly all warrant requests). Moreover, it really would help intelligence agencies to be able to conduct surveillance of foreign targets without having to run to court if they happen to call someone within the U.S.
The best way to prevent the wholesale evisceration of FISA, at least in my opinion, is for the Democrats in Congress to rally around a smart, responsible alternative bill, like this one, that gives the government the authority it says it needs, but includes meaningful safeguards and oversight.
The bill aims to do two things. First, and least controversially, it aims to clarify that no court order is required to intercept purely foreign communications, even if they pass through cables or switches located within the United States. Second, the bill aims to allow the government--subject to various judicial and congressional oversight mechanisms--to intercept all communications of foreign targets on a warrantless basis, even if that target happens to communicate with someone inside the United States. This is further than groups like the ACLU are willing to go (they want individual warrants for all interceptions involving U.S. persons), but I think it is defensible on policy grounds, if it's done right.
So the question, at least for me, is whether the bill provides sufficient safeguards to protect against the abuse of these new surveillance powers. And, at least with respect to this particular version of the bill, I think the answer is yes. Like most legislation of this type, the Reyes/Conyers bill is quite complicated, so I'm going to try to walk you through the key provisions.
First (and perhaps most importantly), unlike the sloppily-written Protect America Act, this bill doesn't try to monkey around with FISA's definition of "electronic surveillance" (a move that leads to all sorts of undesirable collateral consequences, which I've discussed previously). Instead the Conyers/Reyes bill simply clarifies in section 105A(a) that:
Notwithstanding any other provision of this Act, a court order is not required for the acquisition of the contents of any communication between persons that are not United States persons and are not located within the United States for the purposes of collection foreign intelligence information, without respect to whether the communication passes through the United States or the surveillance device is located within the United States.FISA was never intended to apply to these sorts of communications anyway, and this wording states that without trying to redefine what electronic surveillance means.
The very next section--section 105A(b)--provides:
Notwithstanding any other provision of this Act other than subsection (a), electronic surveillance that is directed at the acquisition of communications of a person reasonably believed to be located outside the United States and not a United States person for the purpose of collecting foreign intelligence information . . . by targeting that person shall be conducted pursuant to:(emphasis mine). Sections 105B and 105C, as you've probably guessed, allow the government-- subject to various conditions--to conduct warrantless surveillance of foreign targets, even when they communicate with people inside the U.S.
(1) an order approved in accordance with section 105 or 105B; or
(2) an emergency authorization in accordance with 105 or 105C.
What's key about section 105A(b) is that it uses clear language like "targeting" and "shall be conducted," and it makes clear that it only applies to non-U.S. persons. The existing law, passed hastily over the summer, merely requires that surveillance be "directed at" someone outside the United States (there's no targeting requirement and the surveillance is not limited to non-U.S. persons). Moreover, the current law uses the term "may" instead of "shall" and is structured in a way that renders most of its provisions toothless and non-mandatory. Under the Reyes/Conyers bill, by contrast, it's quite clear that the procedures laid out in sections 105B and 105C are mandatory and fall within the scope of FISA's exclusivity clause (again, this is a result of not monkeying around with the definition of "electronic surveillance").
While I'm discussing section 105A(b), it's probably worth taking a moment to address an argument that is sure to be raised by Republican opponents of the bill. At first glance, the broad language of section 105A(b) would seem to require court approval for the kind of purely foreign surveillance activities that did not require court approval under the original FISA. This is not the case. Section 105A(b) only applies to "electronic surveillance," which by definition already excludes purely foreign-to-foreign communications. Moreover, by its own terms, section 105A(b) does not override section 105A(a)--which makes crystal clear that foreign-to-foreign intercepts do not require a court order. So the government only needs to invoke the basket warrant procedures laid out in sections 105B and 105C when it wants to intercept foreign communications in which one of the participants is a United States person within the United States, something that would have required an individual warrant under the original FISA (at least if the interception took place within the U.S.).
Section 105B of the bill is the provision that governs the issuing of so-called "basket warrants." It allows the government to apply to the FISA court for an order authorizing (for up to one year) the interception of communications of foreign targets, even if some of those communications involve U.S. persons. Unlike the bill passed this summer, however, this bill makes clear that the government must be targeting a non-U.S. person outside of the United States. It must also submit for judicial review the procedures it has in place (including minimization procedures) to ensure that U.S. persons are not targeted or improperly surveiled.
The language in section 105B is also much more precise than in the Protect America Act and cannot reasonably be construed to be the equivalent of a National Security Letter or an authorization to conduct physical searches, acquire business or phone records, etc.
Section 105C is the emergency provision. It allows the government to do on an emergency basis what an order under 105B would otherwise allow, provided that the Attorney General and DNI jointly determine that an emergency exists. This surveillance can continue for up to 45 days without an order, but the government must apply for a 105B order within 7 days after initiating surveillance.
The remainder of the bill is filled with provisions designed to provide meaningful oversight of the government's surveillance activities. Unlike the Protect America Act, FISA judges are empowered to conduct meaningful review of (and, if necessary, issue orders that modify) the procedures and guidelines the executive branch uses to conduct 105B surveillance.
The bill also requires the Justice Department Inspector General to conduct audits of such activities every 120 days and submit comprehensive audit reports to Congress which include such information as 1) the number of targets later determined to be located within the U.S., 2) the number of persons within the United States whose communications were intercepted, and 3) the number and nature of reports created containing information on United States persons.
Additionally, the Attorney General and DNI have to submit compliance reports every 120 days detailing their use of the new statute and cataloguing any instances of non-compliance. They are also required to submit annual reports detailing any use of their emergency authority under section 105C.
The bill also requires that the government create a record-keeping system that keeps track of all instances in which the identity of a United States person whose communications were acquired is disclosed to any other agencies or departments within the government.
Finally, and perhaps most importantly, the bill requires the Justice Department Inspector General to conduct a "complete audit of all programs of the Federal Government involving the acquisition of communications conducted without a court order on or after September 11, 2001, including the Terrorist Surveillance Program." It requires that the audit include all relevant documents, including legal memoranda, authorizations, certifications to telecommunication carriers, and court orders. The bill mandates that the IG's office be given the necessary security credentials to conduct the audit on an expedited basis and that, upon conclusion of the audit, a public report be issued (with a classified annex if necessary).
As a final measure, in order to pre-empt any future arguments that vague statues like the AUMF somehow implicitly authorize the bypassing of FISA, the bill reiterates FISA's "exclusive means" provision and states in no uncertain terms that nothing short of a specific statutory authorization for electronic surveillance shall be construed as creating an exception to FISA's exclusive requirements.
All in all, I'm pretty impressed with the bill. It seems like something I could support. Unfortunately, that almost surely means that it is not something the Bush administration will support. So the question is: how much of this bill will be left at the end of the day after key Democrats capitulate to Republican demands?
Given the relative certainly that some sort of bill will be passed, I think it may be more constructive for people who care about civil liberties to rally behind this bill rather than hold out for a bill that maintains the individual warrant requirement. The latter is not likely to be forthcoming, and even if it was, it would stand very little chance of commanding majority support in Congress. Moreover, it's at least arguable that a bill like this--with its various audit and reporting requirements--would provide as much or more safeguards against abuse than an individual warrant requirement (particularly given the FISC's tendency to rubberstamp nearly all warrant requests). Moreover, it really would help intelligence agencies to be able to conduct surveillance of foreign targets without having to run to court if they happen to call someone within the U.S.
The best way to prevent the wholesale evisceration of FISA, at least in my opinion, is for the Democrats in Congress to rally around a smart, responsible alternative bill, like this one, that gives the government the authority it says it needs, but includes meaningful safeguards and oversight.
posted by A.L. at 11:12 PM
10 Comments:
Just a head's up on this one.
http://www.dailykos.com/storyonly/2007/10/9/224358/287
Or does this constitute a Hate Crime?
I'd be more convinced that this bill would protect civil liberties if we did not have an Executive who has a penchant for 'signing statements' that render most any bill with one attached moot, but it's certainly better than the tripe passed in August.
[(the other) A.L.]: Section 105B of the bill is the provision that governs the issuing of so-called "basket warrants." It allows the government to apply to the FISA court for an order authorizing (for up to one year) the interception of communications of foreign targets, even if some of those communications involve U.S. persons.
Ummm, not sure I follow you on this "basket warrant" business. Even under the original FISA, if a FISA court order was obtained on a specific "target", then all that "target"'s calls, to whomever (including people within the U.S.), are legit. Certainly true for surveillances of "U.S. persons" "within the U.S."
Just as you have no freedom from snooping on your calls, warrant or not on you notwithstanding, if you call someone that has a Title III tap on him, the same applies to the "associates" of a valid FISA court order. What they can't do w/o another court order is then institute taps on all the "associates" calls as well....
Cheers,
Ummm, not sure I follow you on this "basket warrant" business. Even under the original FISA, if a FISA court order was obtained on a specific "target", then all that "target"'s calls, to whomever (including people within the U.S.), are legit. Certainly true for surveillances of "U.S. persons" "within the U.S."
Absolutely right, Arne. The difference here is that no warrant is needed to target someone overseas. You're right that if you have a Title III or FISA warrant, you can listen to all of the target's communications.
But here we're talking about targeting foreigners overseas, without a warrant. The question is whether, when you're targeting someone overseas, do you have to get a warrant if that person calls someone in the U.S. Under the original FISA you did, at least if the interception took place in the U.S. Under the Protect America Act, no warrant is required so long as the interception is "directed at" the overseas person. Under the Reyes/Conyers bill, the government can listen in on these conversations subject to a blanket order approved by the FISA court. But the court has to make sure there are adequate procedures in place to make sure the government actually is targeting only foreigners.
Ummm, "blanket order" for what?
I think I commented at Greenwald's blog, on the effect of eliminating 50 USC § 1801(f)(2) and allowing warrantless surveillance of anyone overseas. Once you remove from FISA entirely surveillances of people overseas (with only § 1801(f)(1) prohibiting the intentional "targeting" of "U.S. persons"), and have thus no threshold of proof (or suspicion) needed to "target" anyone overseas, it is then a simple matter to target everyone overseas (or as many as you feel like) on whatever pretext, and get a free bite at all the conversations anyone in the U.S. has with them. If that is everyone, you've now got it all, every single international call of a person in the U.S., and all w/o a warrant....
What are these "Blanket orders" (or "basket warrants")? I'll peruse the entirety of the proposed bill, but did you have a specific section in mind?
Cheers,
Arne, perhaps "basket warrant" isn't the best way of describing it. Let me try a different way.
Section 105B is the relevant section. It allows the government to seek a FISA order authorizing the interception of certain types of communications, specifically those targeting non-U.S. persons located outside of the United States. In order to receive such an order, the government has to prove to the court's satisfaction that the procedures and minimization requirements it has in place will prevent the targeting of U.S. persons (abroad or within the U.S.) and will minimize the interception and collection of irrelevant communications involving U.S. persons.
Once the court approves these procedures, the government is free to utilize them without returning to the court. The procedures must be reviewed on yearly basis by the court, and detailed records must be kept for audit purposes.
IC. While it's not clear from the language, one might intepret it as requiring such an order (and oversight/approval of some kind by a judge) for each such person identified. If so, then "blanket orders" for, say, "everyone in Waziristan" might not fly, so it might be more difficult to "backdoor" tap U.S. persons calling Waziristan by pretending the "target" was only "every person is Waziristan" and not a U.S. person....
And even if it's not a "search warrant", it is at the very least a "court order" (which is what a FISA court order was as well.
Still not clear what BOP is needed to be cleared in order to get the taps, though....
Cheers,
AL, as a conservative I read stuff like this and it makes me quite queasy, but probably not for the reason you are initially guessing.
I really believe the crazies have taken over the Republican party. But it's quite sad to see Democrats still capitulating so much, even with a Congressional majority.
I always appreciate your attempts to explain the nuances of the law to lay people. I do appreciate nuance, I really do!
However, I'm still struggling with the idea that we had to get into all of this nuance over what appears to be a pretty cut and dried issue. FISA was the law of the land. The PATRIOT act already provided the interpretations of the nuances in the more modern world. Bush broke the law, even why claiming otherwise. Telecom companies may have been complicit in this. Why all the retroactive immunity?
I suppose you may be right, maybe for people who care about civil rights, this is the best we can hope for, but I hope you are wrong. Yet one more capitulation seems quite analogous to the Rosa Parks incident. Rosa was already sitting in the Negro section, had already been content with the unjust limits. And even still she was asked to move. She would certainly have been right to think that moving back and keeping her mouth shut was the best she could hope for.
Just like Rosa, certain of our civil liberties have not only been asked to take a back seat in the bus, but now have been asked to move further back, all under the watchful eye of the Democratic majority in Congress.
I'd like to imagine a day when Republicans can appreciate diplomacy and nuance when required. But I'd also like to see the day when Democrats know when to say right is right and wrong is wrong, and stop polishing turds for the Republicans, which at the moment I am inclined to believe is what you have done in this instance. I'll admit I could be wrong; I tried to follow all of the legal stuff as best I could for months and months, but at this point I am pretty weary of it.
Speaking of Democrats knowing right from wrong, let us consider the following:
"In their book about Clinton’s rise to power, Her Way, Don Van Natta Jr., an investigative reporter at The New York Times, and Jeff Gerth, who spent 30 years as an investigative reporter at the paper, wrote: 'Hillary’s defense activities ranged from the inspirational to the microscopic to the down and dirty. She received memos about the status of various press inquiries; she vetted senior campaign aides; and she listened to a secretly recorded audiotape of a phone conversation of Clinton critics plotting their next attack.
“'The tape contained discussions of another woman who might surface with allegations about an affair with Bill,' Gerth and Van Natta wrote in reference to Clinton’s husband, former President Bill Clinton. 'Bill’s supporters monitored frequencies used by cell phones, and the tape was made during one of those monitoring sessions.'
"A GOP official said, 'Hillary Clinton’s campaign hypocrisy continues to know no bounds. It is rather unbelievable that Clinton would listen in to conversations being conducted by political opponents, but refuse to allow our intelligence agencies to listen in to conversations being conducted by terrorists as they plot and plan to kill us. Team Clinton can expect to see and hear this over and over again over the course of the next year.'
"Gerth told The Hill that he learned of the incident in 2006 when he interviewed a former campaign aide present at the tape playing. He has not revealed the aide’s identity. Clinton’s campaign has not disputed any facts reported in the final version of his book, which became public this spring, he said.
“'It hasn’t been challenged,' said Gerth. 'There hasn’t been one fact in the book that’s been challenged.'”
I assume we can all agree that this criminal conduct on the part of Mrs. Clinton must be roundly condemned.
I've been doing my best to voice my displeasure with the earlier versions of this bill and am whole heartedly grateful to newsletters like this one that help keep me abreast of what's happening in congress with regards to legislation that I'm concerned about.
What I DIDN'T see in this letter though, was any mention of the carte blanche immunity for the telecoms that had been so heavily emphasized by Bush, Cheney, et. al.
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