With the senate scheduled to consider the FISA Amendments Act of 2008 tomorrow, here is an overview of what the bill would do.
- First of all, the bill is not a replacement for the FISA courts. The first part of the bill covers surveillance of those who are NOT U.S. Citizens, whether they are in the U.S. or abroad. American citizens, wherever they are, are not supposed to be targeted under the fist part of this law, but later parts cover targeting Americans abroad.
- The bill contains a lot of weasel language about accidentally wiretapping U.S. citizens, with much use of words like “intentionally target” and “reasonably believe”.
- The Attorney General and the Director of National Intelligence have to submit a certification saying they did or will try to apply to the FISA court for approval for the surveillance within 7 days of the date of the certificate. They can move the date of the certificate around later, depending on when the surveillance begins. They are supposed to pay the telecoms for their services. They are supposed to make their requests to the telecoms in writing. They don’t have to say where the wiretapping will take place. They are supposed to keep a copy of the certification notice to the FISA court. The FISA court has 30 days to review the certification and determine whether it is proper and legal.
- Telecoms cannot be sued in court for going along with this.
- The government can require security measures from telecoms.
- If a telecom does NOT want to go along with this, they will be in very deep doo doo and spend a lot of money on lawyers. The “electronic communication service provider”–the telecom asked to wiretap–can request of the FISA court not to do the wiretapping. The FISA court has to assign to petition to a judge within 24 hours–24 hours!–and review the petition within 5 days. If the judge finds the government request to be improper or illegal they can tell the telecom they don’t have to do it. Otherwise they can order the telecom to comply. They have to do this in writing. Then if the telecom still doesn’t want to carry out the wiretapping, they can be sued for contempt of court. If the telecom does not agree they can take it to the Supreme Court “under seal”, whatever that is, probably some sort of secrecy.
- If the court does not agree with the government that a wiretap is proper, the government can either alter their surveillance to comply with the court, stop the surveillance, or appeal to the FISA court of review. The FISA review court has 60 days to make a decision; in the meantime the government can continue to wiretap. It is not clear what happens if the government “corrects the deficiency”–does the new government procedure then go back to FISA for another review and reset the 60-day clock?
- Time limits for court decisions can be extended if it’s in the interest of security.
- FISA will keep their proceedings secure.
- Reauthorizations should be renewed at least 30 days before they expire. (current projects are said to be expiring in August– is this the rush to pass FISA amendments bill now?)
- Every six months the Attorney General and Director of National Intelligence will submit a report to the FISA court and to congressional intelligence and judiciary committees. The report will consist of a review of how well they have managed not to wiretap Americans and how many citizens ( a U.S. citizen in this bill is referred to as “a United States-person identity”) have actually been wiretapped, also something called “minimization procedures”.
‘(e) Minimization Procedures-
- ‘(1) REQUIREMENT TO ADOPT- The Attorney General, in consultation with the Director of National Intelligence, shall adopt minimization procedures that meet the definition of minimization procedures under section 101(h) or 301(4), as appropriate, for acquisitions authorized under subsection (a).
‘(2) JUDICIAL REVIEW- The minimization procedures adopted in accordance with paragraph (1) shall be subject to judicial review pursuant to subsection (i).
Apparently is has something to do with how the “acquisitions” or recordings are handled. Wouldn’t it be really funny if this was just Newspeak for a zip file on a thumb drive?
- The Inspectors General of the Justice Department, and any intelligence agencies authorized to conduct wiretapping, are authorized to review how many American citizens were actually wiretapped and also the mysterious “minimization procedures”. The review can be presented to the heads of the intelligence agencies, the head of the Justice department and congressional intelligence and justice oversight committees. The heads of the intelligence entities (aren’t they agencies anymore?) will write an annual review, which goes to the AG, FISA, the head of Justice, and the congressional justice and intelligence oversight committees.
- But, wait a minute, this isn’t just about wiretapping. In section 703 c 4 we find out that an order approving “ACQUISITIONS INSIDE THE UNITED STATES TARGETING UNITED STATES PERSONS OUTSIDE THE UNITED STATES” has to specify “the nature of the information sought to be acquired and the type of communications or activities to be subjected to acquisition”. What is an “activity” and how do you acquire it? The FISA court approval document also has to specify “a summary of the means by which the acquisition will be conducted and whether physical entry is required to effect the acquisition”. Physical entry? We’re not talking about planting bugs in telephones here, are we. And they have to specify the “means”? So this isn’t just about wiretapping. It could cover just about any object that could be searched for–emails, computers, papers, even what’s in someone’s medicine cabinet–and inside anything–homes, cars, offices.
- Domestic spying (not just wiretapping it seems) approvals are good for 90 days and can have more 90 day extensions after a FISA judge reviews the circumstances of what has already been done.
- Up until this point, this bill does not authorize targeting American citizens, but now Section 704 specifically details the requirements for spying on a U. S. citizen abroad. An American citizen can be spied on if there is a certification filed with FISA or the Attorney General authorizes the spying as an emergency. The identity of the American citizedn does not have to be known. The spying is supposed to stop if the person is known to enter the U.S., but can resume again after they leave. In this type of spying, the FISA judge who reviews the case may review how the information was used, but not how it was collected.
- The Attorney General can authorize an emergency spying on an American abroad, but has to notify the FISA judge at that time, and file a certification within 7 days. The authorization is good until the certification is obtained or the desired information is obtained.
- Information obtained without a certification cannot be used in court, or disclosed, unless there is a threat of harm to someone.
- Civil lawsuits against telecoms are prohibited as long as they have a written authorization–and there is quite a lengthy description here of what documentation is okay to prove authorization–after 9/11 for the wiretap.
Comments and ruminations:
The bill starts out benign and slowly gets scary. After all, who would disagree with a wiretap targeting someone in another country who was not American, especially if they were planning another 9/11? Then we get to wiretapping non-citizens who are in the U.S.–still sort of a gray area, but not that objectionable. Do foreigners have rights? Well, we stuck a toe in the water and didn’t get frostbite, so maybe it’s a reasonable bill after all.
Then we read about all the reporting required everytime there is a wiretap. Reports in triplicate to Justice, FISA, and bipartisan intelligence committees in both houses of congress. Good idea, oversight, accountability. That’s what an Inspector General is for. Prevent waste, fraud, abuse. In some agencies they’re even independent of the agency’s director, which is handy if you want to scrutinize the agency and keep your job at the same time. The Republicans and Democrats will be tripping over each other to make sure it isn’t used as a political tool that can be used against them .
Much has been made of the Attorney General’s ability to make emergency declarations in order to spy without a certification, but it looks like the AG can only do that with Americans abroad and has to make a declaration to the FISA first and follow it up by applying for a certification.
The fourth amendment says no search and seizure without a warrant, but here warrants have been replaced by certifications. What ‘s the difference? Not having to specify the person searched for or the specific place to be searched. I suppose that’s necessary when dealing with the internet and all those anonymous hackers on steroids. It’s been mentioned elsewhere that warrants can be subpoenaed. Can certifications? But a certification has to be listed in all kinds of reports to the executive and legislative branches.
Information obtained by spying on Americans abroad before a certification is obtained cannot be used in court–this is nasty. The American Way is to sue. We don’t war on each other because it’s so much more fun to throw our lawyers at each other. The right of Americans to sue and be sued cannot be impinged upon. Also it would be really nice to try some terrorists and put them in jail instead of having all these foreign covert actions. It’s killing our reputation abroad. I bet if the world found out how much nasty fun lawyers can be, war would disappear forever. Plus if there was some legally admissible evidence, we could think about how to lock up some terrorists legally.
Who is restricted from bringing lawsuits? Not the telecoms. The telecoms can take the FISA appeal court ruling to the Supreme Court. Not the government. The government can take any objections of the telecoms to the Supreme Court. What about any citizens who get spied on? Looks like they might be able to sue the government but not the telecoms. If they find out.
In some ways this a very pragmatic bill, similar to legalizing prostitution or buying and selling pollution credits. Try this analogy. Little Gerogie has been caught with his hand in the cookie jar before dinner time and now has no appetite for the bill of rights. He doesn’t eat the cookies himself, he just gives them to his friends because he doesn’t have a clue what to do about 9/11 and he thinks if they have the cookies they will be distracted and will think he’ s doing something.
Mommy and Daddy are quite busy working double shifts to pay for everything. For instance they’re ten million short for the Denver convention, and they just don’t have the time and energy to do FISA, er cookies right. Besides, once Georgie is off to boarding school, he and his playmates won’t have the opportunity for cookies anymore. And the twins. Little Barack and Hillary both want to go to college, but they can only send one, so Mommy and Daddy are busy with that mess too. So instead of sending Georgie off to cookie boot camp, they want to stop little Georgie from putting his hand in the cookie jar in the first place until they can get him out of the house and have time to deal with it.
So here’s what they come up with. They exchange the cookies for muffins. Harder to get out of the jar without being noticed. Then they say it’s okay to eat as many muffins as possible before mealtime as long as you put a little check mark on the little chart next to the muffin jar. Of course you will have to explain later what you did with all those muffins and count them and so forth, but for now just take the muffins and let someone know you took them.
And if you’re out of the house and need a muffin really quick, here’s a dime for mad money, just have the attorney general call an emergency and you get more muffins as long as you keep putting a check in the box next to the jar.
Of course, now that it’s okay to eat before meals, we don’t want to know about all the friends you gave those cookies to before–I mean, that’s all legal now, so why get upset over something that was not okay before but is okay now.
Hope you don’t mind all the cholesterol–don’t get any arterial plaque or stroke out or anything, now, y’hear?