The Wiretap Law & Joe Klein

Time Magazine columnist Joe Klein is taking a bit of a beating from the left side of the blogosphere for his reporting on the Foreign Intelligence Surveillance Act legislation passed by the House of Representatives on November 15th. Here is a once-modified version of what Klein wrote to touch off the controversy…

The Democratic strategy on the FISA legislation in the House is equally foolish....Unfortunately, Speaker Nancy Pelosi quashed the House Intelligence Committee's bipartisan effort and supported a Democratic bill that -- [Rush Limbaugh] is salivating -- House Republicans believe would require the surveillance of every foreign-terrorist target's calls to be approved by the FISA court, an institution founded to protect the rights of U.S. citizens only....

(In the original version of this story, Joe Klein wrote that the House Democratic version of the Foreign Intelligence Surveillance Act (FISA) would require a court approval of individual foreign surveillance targets. The bill does not explicitly say that. Republicans believe it can be interpreted that way, but Democrats don't.)

The best way to figure out what the proposed law means (and if either version of Klein's description was accurate) is to recap its evolution.

The temporary electronic surveillance law that the United States is currently operating under says that…

Sec. 105A: 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.

This makes clear that the monitoring of any communication involving one party outside of the United States is to be treated as a foreign intelligence operation, outside of the jurisdiction of the court system. If an intelligence agency is listening in on someone who is located in a foreign country, and the person under surveillance unexpectedly calls a contact in New York City, right now, no court approval is required to keep listening.

The current section 105A expires in February. In October, the Democrats proposed this as a permanent replacement…

Sec. 105A: (a) Foreign to Foreign Communications -- 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 purpose of collecting foreign intelligence information, without respect to whether the communication passes through the United States or the surveillance device is located within the United States.

Unlike the present law, this law would have placed only communications where both parties were outside of the United States beyond the jurisdiction of the courts. And somewhat distressingly, situations involving parties outside of the United States communicating with parties inside of the United States were not explicitly treated. A new subsection under section 105A appeared, on its surface, to set some rules for cases where only one party to a commuication was outside of the U.S…

Sec. 105A: (b) Communications of Non-United States Persons Outside of the United States -- Notwithstanding any other provision of this Act other than subsection (a), electronic surveillance that is directed at the acquisition of the communications of a person that is reasonably believed to be located outside the United States and not a United States person for the purpose of collecting foreign intelligence information (as defined in paragraph (1) or (2)(A) of section 101(e)) by targeting that person shall be conducted pursuant to --
(1) an order approved in accordance with section 105 or 105B; or
(2) an emergency authorization in accordance with section 105 or 105C.

...but in reality, it didn't. The "emergency authorizations" section 105C (as well as the "orders" section 105B) applied, as did the new section 105A, only to situations where both ends of a communication involved non-United States persons outside of the United States…

Sec. 105C: (b) Emergency Authorization -- Notwithstanding any other provision of this Act, the Director of National Intelligence and the Attorney General may jointly authorize the emergency acquisition of foreign intelligence information for a period of not more than 45 days if --

(1) the Director of National Intelligence and the Attorney General jointly determine that...
(B) the targets of the acquisition of foreign intelligence information under this section are persons reasonably believed to be located outside the United States;
(C) the targets of the acquisition are reasonably believed to be persons that are not United States persons;

The proposed revisions offered no guidance on what legal procedures were to be followed when a target of surveillance located outside of the United States unexpectedly called a "United States person" inside of the United States. The new, narrower scope of the law could easily have been interpreted by the courts to mean that intelligence agencies were expected to immediately cease surveillance on communications that crossed the border -- even communications originating from known terrorist cells -- until a warrant was in order.

House Republicans saw this loophole in the Democratic proposal as a problem. They prepared an amendment to the bill that would have made clear that surveillance of electronic communications could continue, without a court order, any time that an acknowledged al-Qaida operative located outside of the United States contacted someone within the United States. Rather than have to vote on this amendment, the Democratic leadership pulled their bill off of the floor.

But the version of the bill that passed on November 15th (on a mostly party line vote) contained an even broader version of Republican amendment. The House-approved version starts off with the language of the initial Democratic version of section 105A (a), expressly placing communications involving two ends outside of the United States into the realm of foreign intelligence gathering not subject to court approvals. Then, through yet another subsection, the bill addresses situations involving foreign surveillance targets who unexpectedly make a contact within United States. The bill says that intelligence agencies may continue to listen and that they have seven days to get court approval of surveillance of the party within the United States…

Sec. 105A: (a)(2) TREATMENT OF INADVERTENT INTERCEPTIONS -- If electronic surveillance referred to in paragraph (1) inadvertently collects a communication in which at least one party to the communication is located inside the United States or is a United States person, the contents of such communication shall be handled in accordance with minimization procedures adopted by the Attorney General that require that no contents of any communication to which a United States person is a party shall be disclosed, disseminated, or used for any purpose or retained for longer than 7 days unless a court order under section 105 is obtained or unless the Attorney General determines that the information indicates a threat of death or serious bodily harm to any person.

Finally, it appears that the Democratic Congress has entered the realm of the reasonable on this issue! I am still of the opinion that communications crossing the border should simply be treated as foreign communications, but allowing seven days to obtain a warrant is an acceptable compromise.

Finally, back to Joe Klein. He did appear to mis-state the scope of the Democratic proposals. Even the original version would not have required court orders for all foreign surveillance targets, only those that made direct contact with persons in the United States and/or United States persons. But Klein's bashers are also being a tad disingenuous. If there was any major liberal/progressive objection to the original Democratic FISA bill on the grounds that it was a bad idea to require American intelligence agencies to cease surveillance operations when a foreign surveillance target unexpectedly called someone within the United States, that objection wasn't made very forcefully. Liberals seem to willing to accept either version of the bill, showing less of an interest in the content of surveillance law, than in just passing something that isn't President Bush's.