FISA Follies

The President signed a six-month modification to the Foreign Intelligence Surveillance Act (FISA) on Sunday, after the Democrat-controlled Congress agreed to Administration provisions.  The move was met by howls of protest from the ACLU and the left leaning punditry; and Speaker Pelosi moved to change the law before it was even signed. 
But is this law the end of the Fourth Amendment?  And if it's so bad, why did Democrats vote for it?  What are we talking about, anyway?

Pop quiz, hotshot:  You're an NSA officer, trying to track down Al Qaeda's big surprise" -- the next terrorist operation in the US.  You're listening in on a routine intercept of an overseas communication, the source of which is a known terrorist operations cell.  Osama bin Laden himself comes on the line.  He dials somebody in the U.S. and begins to give orders. Do you:

1.Record the call and start an immediate trace of the domestic end;

2. Alert the FBI to a possible impending terrorist attack;

3. Try to determine enemy communications protocols for future intercepts;

4. All of the above; or,

5. Hang up the intercept immediately, because it's against the law to eavesdrop on people inside the U.S.?

Hope you answered number 5, because that's the law. 

FISA was enacted in the aftermath of domestic surveillance abuses of the Nixon Administration.  It's designed to enable surveillance of our enemies overseas, while protecting Americans against eavesdropping.  It allows interception of overseas communications, and it also allows warrant less monitoring in the US to acquire foreign intelligence, 
provided: [1802.a.(1)] (B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party. It allows monitoring with a warrant, provided there is probable cause to believe: [1805.a.(3)] (A) the target of the electronic surveillance is a foreign power or an agent of a foreign power

In a nutshell, the NSA can intercept any foreign signals (as long as they're intercepted outside the U.S.).  It can intercept domestic signals only if it has probable cause to believe the person on the domestic end is an agent of a foreign power, and gets a warrant.  The problem in relation to the current conflict is when known terrorists call people in the U.S.  One of the reasons to conduct such surveillance is to identify agents already here... but the Catch-22 is that we can't listen in on their phone calls until after we know they're agents.  And in the case of Al Qaeda sleeper agents, that may be too late.   

Under that theory (and wartime authority provided
), the Bush Administration started intercepting phone calls from known Al Qaeda locations into the U.S. shortly after 9/11.  The program continued with regular consultations with Congressional intelligence leaders until its existence was leaked to the New York Times in December, '05.  After considerable legal debate, a compromise was reached in 2006, wherein the Administration agreed to a scaled-back program and to submit it to the FISA court for legal review.  After at least one approval, it was curtailed by a  subsequent ruling:
But the judge, in an order several months ago, apparently concluded that the administration had overstepped its legal authorities in conducting warrantless eavesdropping even under the scaled-back surveillance program that the White House first agreed to permit the FISA court to review earlier this year….

Part of the dispute is over interpretation of Constitutional authority (that of the Executive to wage war, and of Congress to provide rules and regulations), and partly due to advances in technology. In a development of communications technology not envisioned by the original FISA, many phone calls and electronic communications (e.g., e-mails) are routed through switches in the U.S.  Because the intercepts take place in the U.S., the law requires using the domestic FISA rules when intercepting overseas conversations.  This overly legalistic viewpoint was one basis for the court ruling that spawned the current debate, and the most contentious finding:
WASHINGTON - A special court that has routinely approved eavesdropping operations has put new restrictions on the ability of U.S. spy agencies to intercept e-mails and telephone calls of suspected terrorists overseas, U.S. officials said Wednesday [....]

But other officials said the ruling's reach was broader, affecting cases "where one end is foreign and you don't know where the other is" - meaning warrants would be required even when it was unclear whether communications were crossing the United States or involved a person in the United States.
The result is absurd. Obviously it is impractical to get a warrant to eavesdrop on two terrorists in Pakistan, just because their call happens to be routed through a U.S. switch.  Moreover, there is no reason to do so: there are no legitimate Fourth Amendment concerns in such an intercept.  But that's the law.  Director of National Intelligence (and former NSA chief) Mike McConnell explained the ramifications:

By McConnell's chilling estimate, the government is "missing a significant portion of what we should be getting" from electronic eavesdropping on possible plots. There are reports the spies have stopped checking on two-thirds of the conversations needing review. And Rep. Heather Wilson, a Republican on the House Intelligence Committee, told Newsweek magazine she was briefed on "specific cases where U.S. lives have been put at risk.
Although the ruling remains classified, the contention that it restricts eavesdropping even on purely overseas communications remains undisputed.  And it is this restriction that threatens a backlash for civil libertarians fighting FISA reform, and provided the impetus for Democrats to acquiesce in passing a stopgap measure. 

After months of missing critical intelligence, the NSA will once again be able to tap into terrorists' conversation overseas.There is little doubt that foreign terrorists are planning to do us harm, and eavesdropping on their conversations is obviously warranted.  And while the public awareness of the process is limited--in part by the secrecy inherent in communications intelligence, in part by obfuscations from anti-Administration civil libertarians--that will not be the case in the aftermath of a successful attack.  Placing ridiculous restrictions on our ability to acquire enemy intelligence in wartime is inexcusable; and some of the posturing on this issue can only be explained as petty politics.  The stopgap measure is barely adequate, and it's late in coming.  Obstructionists had better hope their actions do not impair the ability of our intelligence agencies to provide warning of an impending attack... because the American people will not be forgiving if they do.