Marty Lederman: Two Questions About the FISA Amendment

[ProSense]

Saturday, August 04, 2007

Two Questions About the FISA Amendment

Marty Lederman

As noted below, the key to understanding the FISA bill is that it will categorically exclude from FISA's requirements any and all "surveillance directed at a person reasonably believed to be located outside of the United States," even if the surveillance occurs in the U.S.; even if the surveillance has nothing whatsoever to do with Al Qaeda, terrorism or crime; and, most importantly, even if the surveillance picks up communications of U.S. persons here in the States.

So, two questions:

1. Doesn't this give the NSA all it had under the "TSP" between March 2004 and January 2007 -- and much, much more, since there's no requirement of any tie to an Al-Qaeda-related person? If so, and if they could get this sort of a deal from a Democratic-controlled Congress, what does that say about their unwillingness to go to a Republican-led Congress for those four years to seek a similar legislative fix, and to violate FISA unilaterally and in secret on the basis of a threadbare AUMF/Article II rationale? Is there any excuse now for their not having invoked the ordinary constitutional processes?

2. The amendment means, I think, that as far as statutory law is concerned, all of our international phone calls and e-mails can be surveilled, without exception, as long as the surveillance is in some sense "directed at" a person overseas. As I asked yesterday, is that OK from a Fourth Amendment perspective?

Secret ruling limited spying efforts (second item at link)

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[jimshoes]

1. We wouldn't know about any of it if

the NY times hadn't run the story about it in 2005. I'm sure they would have liked it to remain unknown to anyone but the Times ran the story albeit a year after they first learned about it, but didn't want to print it so close to the election and ruin chimpy's chances of being able to steal another one. IIRC