The Wiretap Law & Joe Klein II

I may have been wrong about the Dems reaching the outskirts of reasonableness on the issue of Foreign Intelligence Security Act reform.

The text of the Democratic FISA reform bill that passed the House in mid-November empowers the Director of National Intelligence and the Attorney General, without a court order, to authorize the surveillance of non-United States persons located outside of the United States suspected of having contacts within the United States -- but only for 45 days. The relevant section is Section 105C…

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 (as defined in paragraph (1) or (2)(A) of section 101(e)) for a period of not more than 45 days if --

(1) the Director of National Intelligence and the Attorney General jointly determine that--
(A) an emergency situation exists with respect to an authorization for an acquisition under section 105B before an order approving the acquisition under such section can with due diligence be obtained;
(B) the targets of the acquisition of foreign intelligence information under this section are persons reasonably believed to be located outside the United States who may be communicating with persons inside the United States;

Under this law, after the 45 days have run out, an intelligence agency would have to cease surveillance immediately if a party under surveillance contacts the United States -- even when that party is a non-United States person, located outside of the United States -- unless the operation had been given prior sanction by the courts.

But what about the section 105A(a)(2) exception discussed in the previous post, which seems to create a seven-day good-faith grace period in cases where non-United States persons unexpectedly have contact with parties inside of the US? Wouldn't 105A(a)(2) override any other provision and allow surveillance to continue for a week, while the proper warrants were obtained?

The answer may be no, because of one little adverb…

Sec. 105A: (a)(2) 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.

To understand the problem, consider the following not unreasonable scenario. American intelligence agents know that a terrorist leader is running a terrorist cell from his base in Farawayistan. They have evidence that his cell has contacts in the United States, but are not sure who or where they are. To try to learn more about them, the DNI and AG authorize monitoring of the cell-phone traffic into and out of Farawayistan.

Now, what happens if the terrorist leader doesn't make a call to his American contacts until 46 days after the start of the operation?

The monitoring of the call between Farawayistan and the United States cannot be claimed to have been "inadvertent" if discovering the identities of a terrorist group's American contacts was a goal of the surveillance. Therefore, by the letter of the law, the seven-day grace period from 105A(a)(2) does not apply, returning us to where this debate began: in order to conduct effective surveillance, i.e. to not be required to hang-up in situations where the targets of foreign surveillance unexpectedly contact the United States, while fully complying with the law, American intelligence agencies will have to obtain court orders when monitoring the communications of foreign nationals on foreign soil.

Fortunately, there does seem to be a straightforward solution available here. Drop the notion of "inadvertently" from the 105A(a)(2) exception and create a broad rule that says whenever a foreign national under surveillance contacts the United States, an intelligence agency has 7 days in which they are allowed to continue surveillance; at the end of the seven days, the government must either have obtained a warrant, if surveillance is to continue, or else be required to destroy the information related to the United States person that was listened in upon. Then drop everything from sections 105B and 105C that might imply that court orders are ever necessary to conduct surveillance of foreign nationals who are outside of the borders of the United States.

ADDITIONAL INFORMATION:

Congressman Peter Hoekstra, ranking Republican on the House Intelligence Committee, had an article in yesterday's National Review Online explaining his opposition to the Democratic version of FISA reform .