A Citizen’s Guide to the War on Terror, #1: WTF is FISA?

Since Barack Obama voted this past summer for a proposed modernization of FISA – the Foreign Intelligence Surveillance Act of 1978 – liberals and fake liberals alike have used the vote as a way of casting the President-Elect as “no true progressive.” This is wrong. While the prospect of wiretap surveillance is frightening indeed, FISA, and FISA as-amended, in fact strike a fair compromise between the need to monitor terrorist networks and the need to maintain national security. Pivotally, both exist to defray the much more disturbing prospect of unregulated, unwarranted, unilateral executive surveillance.

FISA emerged out of the Church Commission, a 1970′s-era report that documented widespread abuses in the intelligence community, ranging from wiretapping of domestic Americans to shocking overuse of assassination as a tool of political change abroad. Congress reacted by passing FISA, prescribing a specific regulatory scheme as the only method by which intelligence operatives could conduct surveillance, short of a warrant upon probable cause. Under classic FISA, executive agencies can submit an application to a specially designated “Court” (the Foreign Intelligence Surveillance Court) composed of a rotating number of federal district judges, requesting authorization to wiretap specific “facilities” (telephones or e-mail accounts) or specific persons. The executive had to prove that:

1. The target is a “foreign power” or an “agent of a foreign power,” provided that no “U.S. person” (citizen, resident alien, etc.) can be so classified on the basis of first-amendment activities only;
2. The surveillance is likely to turn up relevant evidence (less than probable cause, more than a hunch), and the primary purpose of the acquisition is gathering foreign intelligence;
3. The line being surveilled could be described as one of a few types of communications, and is not purely domestic communications between two U.S. persons (for which there has to be a real warrant), and;
4. Surveillance would be conducted in accordance with minimization procedures designed to protect privacy and destroy records of communications after they’ve outlived their usefulness.

Also under “classic FISA,” Department of Justice officials assumed that national security officials could share information with law enforcement officials only under limited circumstances, as a means of ensuring that FISA did not turn into a workaround for the traditional warrant system. Old FISA, then, did not gut Fourth Amendment values: it compromised only when necessary.

Perhaps too well. In fact, this “wall” between law enforcement and counterterrorism worked so well at protecting against abuses of FISA that, at least according to some, the consequential lack of cooperation between the departments directly precipitated 9/11. There’s evidence to suggest that, if the departments had shared information more freely, at least one of the hijackings could have been stopped.

The PATRIOT ACT sought to remedy that defect. PATRIOT now allows greater cooperation between law enforcement & counterterror officials. But PATRIOT left undisturbed one of the bedrock problems with classic FISA: its requirement that, for the FIS Court to authorize surveillance, a target’s location had to be known to (in some critical cases) be outside of the United States, and its requirement that agents tap only specific lines. In the era of e-mail, where data is transmitted along multiple lines and “sender” and “recipient” information masks both citizenship and location, FISA simply breaks down.

Unless you oppose all surveillance on principle, it’s hard to make the argument that FISA did not need modernization to correct this major defect. It’s also hard to argue that the PATRIOT ACT revision (to allow some interdepartmental cooperation) was not at least partially necessary. And given the historic executive response to inadequate regulations – ignore them (as the Church Commission found in the 1970′s, and as the New York Times discovered of Bush in his second term) – it’s hard to coclude that, from a practical perspective, a broader license for regulated wiretapping is preferable to a more restrictive regime likely to be ignored. FISA had to change to accommodate new needs, and new technologies, and it had to preempt & partially de-necessitate Bush’s extralegal operations.

Hence FISA modernization. As explained a while ago by David Kris, new FISA de-emphasizes location of the target to be surveilled, requiring only the government’s “reasonable belief” in the target’s non-citizenship/extraterritoriality, thus somewhat curing the e-mail problem. New FISA also continues to limit intentional targeting domestically, or of citizens abroad (download statute here):

[18 U.S.C.] SEC. 702. PROCEDURES FOR TARGETING CERTAIN PERSONS OUTSIDE THE UNITED STATES OTHER THAN UNITED STATES PERSONS.

(a) AUTHORIZATION.—Notwithstanding any other provision of law, upon the issuance of an order in accordance with subsection (i)(3) or a determination under subsection (c)(2), the Attorney General and the Director of National Intelligence may authorize jointly, for a period of up to 1 year from the effective date of the authorization, the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information.

b) LIMITATIONS.—An acquisition authorized under subsection (a)— (1) may not intentionally target any person known at the time of acquisition to be located in the United States; (2) may not intentionally target a person reasonably believed to be located outside the United States if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the United States; (3) may not intentionally target a United States person reasonably believed to be located outside the United States; (4) may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States; and (5) shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States. [. . . .]

And it also expressly forbids any surveillance outside of the statute. In short, it’s a compromise. It forgives imprecise targeting so long as it’s reasonable, but continues to safeguard important values, like the limitation on extralegal surveillance and protection for United States citizens. It’s not perfect, it’s not an ideal statute, but this is not an ideal world, and the War on Terror is not an ideal war. I’m as liberal as the next guy – this site’s browser icon is there by choice – but this strikes me as, if not necessary, at least prudent, and a pleasant alternative to either unregulated surveillance or complete blindness.

The telecom immunity part? That’s a different story. One for another day.