Rush to amend FISA due to slap-down from FISA court.
Friday, August 3, 2007; A01
A federal intelligence court judge earlier this year secretly declared a key element of the Bush administration's wiretapping efforts illegal, according to a lawmaker and government sources, providing a previously unstated rationale for fevered efforts by congressional lawmakers this week to expand the president's spying powers.
House Minority Leader John A. Boehner (R-Ohio) disclosed elements of the court's decision in remarks Tuesday to Fox News as he was promoting the administration-backed wiretapping legislation. Boehner has denied revealing classified information, but two government officials privy to the details confirmed that his remarks concerned classified information.
The judge, whose name could not be learned, concluded early this year that the government had overstepped its authority in attempting to broadly surveil communications between two locations overseas that are passed through routing stations in the United States, according to two other government sources familiar with the decision.
The decision was both a political and practical blow to the administration, which had long held that all of the National Security Agency's enhanced surveillance efforts since 2001 were legal. The administration for years had declined to subject those efforts to the jurisdiction of the Foreign Intelligence Surveillance Court, and after it finally did so in January the court ruled that the administration's legal judgment was at least partly wrong.
The practical effect has been to block the NSA's efforts to collect information from a large volume of foreign calls and e-mails that passes through U.S. communications nodes clustered around New York and California. Both Democrats and Republicans have signaled they are eager to fix that problem through amendments to the Foreign Intelligence Surveillance Act (FISA).
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I wondered what caused the sudden rush. To hear Gonzales (and other Republicans) [link|http://www.usdoj.gov/ag/speeches/2007/ag_speech_070724.html|talk], FISA hasn't been changed since 1978 and we're all gonna die unless they fix it today:
As my written statement explains in more detail, when it comes to keeping our neighborhoods safe and protecting our children the Department has made great progress. In my brief remarks this morning, I want to focus on the Department\ufffds number one priority\ufffdkeeping our country safe from terrorists\ufffdand the urgent need for more help from Congress in this fight. As the recent National Intelligence Estimate as well as the attempted car bombings in London and Scotland demonstrate, the threat posed to America and its allies by Al Qaeda and other terrorist groups remains very strong.
To respond effectively to this threat, it is imperative that Congress modernize the Foreign Intelligence Surveillance Act of 1978, known as FISA. Doing so is critically important to intelligence-gathering and makes plain sense. When Congress drafted FISA in 1978, it defined the statute\ufffds key provisions in terms of telecommunications technologies that existed at that time. As we all know, there have been sweeping changes in the way we communicate since FISA became law, and these changes have had unintended consequences on FISA\ufffds operation. For example, without any change in FISA, technological advancements have actually made it more difficult to conduct surveillance on suspected terrorists and other subjects of foreign intelligence surveillance overseas.
In April, at the request of the Senate Select Committee on Intelligence, the Director of National Intelligence transmitted a comprehensive FISA modernization proposal to Congress. The proposal builds upon thoughtful bills introduced during the last Congress. The bill would accomplish several key objectives.
Most importantly, the Administration\ufffds proposal restores FISA\ufffds original focus on protecting the privacy of U.S. persons in the United States. FISA generally should apply when conducting surveillance on those in the United States, but it should not apply when our Intelligence Community targets persons overseas. Indeed, it was advancements in technology and not any policy decision of Congress that resulted in wide-scale application of FISA and its requirement to go to court to overseas targets. This unintended consequence clogs the FISA process and thereby hurts national security and civil liberties. As amended, FISA\ufffds scope would focus on the subject of the surveillance and the subject\ufffds location, rather than on the means by which the subject transmits a communication, or the location where the Government intercepts the communication. FISA would become \ufffdtechnology neutral;\ufffd its scope would no longer be affected by changes in communications technologies.
The bill would also fill a gap in current law by permitting the Government to direct communications companies to assist in the conduct of lawful communications intelligence activities that do not constitute \ufffdelectronic surveillance\ufffd under FISA. This is a critical provision that is a necessary companion to any change in FISA\ufffds scope. Importantly, the Administration\ufffds proposal would provide a robust process of judicial review for companies that wish to challenge these directives.
The Administration\ufffds proposal would also provide protections from liability to companies that are alleged to have assisted the Government in the wake of the September 11 terrorist attacks.
The bill also streamlines the FISA application process to make FISA more efficient, while at the same time ensuring that the FISA Court has the information it needs to make the probable cause finding required.
Finally, the Administration\ufffds proposal would amend the statutory definition of \ufffdagent of a foreign power\ufffd to ensure that it includes groups who are engaged in the international proliferation of weapons of mass destruction or who possess or are expected to transmit or receive foreign intelligence information while in the United States.
FISA modernization is critically important and we urge the Senate to reform this critical statute as soon as possible. I am hopeful that this is an area where we can work together with the Congress and this Committee. I think we can find common ground on the central principles underpinning the Administration\ufffds proposal\ufffdand, in particular, on the fact that we should not extend FISA\ufffds protections to terrorist suspects located overseas.
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It certainly fits with the WP story above. They don't want to have to get warrants to search e-mail and communications that goes through US servers. Note the careful phrasing of Gonzales's remarks, highlighted above. Many of the highlighted sections are highly misleading. (E.g. Gonzales ignores the fact that the FISA process is the exclusive legal process to wiretaps without a court order.)
Cheers,
Scott.