FISA Reality

By February 16, 2008Briefly Legal, Communications

Wish Andrew McCarthy would have written this column earlier. McCarthy, who directs the Center for Law & Counterterrorism at the Foundation for Defense of Democracies, lays out in detail the legal and practical problems that will undermine U.S. surveillance of FOREIGN plotters once the current Protect America Act expires.

Drop for a moment the issue of telecom immunity, which we focus on here out of a belief that companies that act in good faith to help prevent terrorist attacks should not be punished for such help. Consider just the issue of foreign surveillance of evil people who want to blow up Americans. That’s not fear-mongering, that’s reality.

From McCarthy’s “When the Clock Strikes Midnight, We Will Be Significantly Less Safe“:

The whole reason Congress enacted the PAA in the first place is because FISA was never meant to apply to foreigners outside the U.S. communicating with other foreigners outside the U.S. We are not supposed to need court authorization for that. We are not supposed to have to write affidavits, approved by the attorney general and others, demonstrating probable cause that such people are agents of foreign powers — as well as demonstrating that other alternative investigative techniques would not yield the same intelligence.

Those are protections afforded by the FISA statute. Foreigners outside the U.S. are supposed to be outside the protection of the FISA statute, just as they are outside the protection of the Constitution. Saying the government can go to the FISA court is no answer: Government is not supposed to have to go to the FISA court. These people are not supposed to have FISA rights. They are not supposed to have Fourth Amendment rights.

We are talking about thousands upon thousands of communications, totally outside the U.S. (in the sense that no person inside our country is a participant) which the intelligence community used to be able to intercept and sift through without any burdensome judicial procedures whatsoever. That is how FISA was written, and that is how FISA was understood for almost 30 years. Then last year, a secret FISA-court ruling attempted to bring all those communications under FISA-court control — apparently on the theory that, because some digital bits of these conversations may zoom through U.S. hubs in global telecommunications networks, somehow a conversation between a guy in Pakistan and a guy in Afghanistan should now be considered a U.S. wire communication.

Thank you, Andy. Opponents of legitimate foreign surveillance raise this specter of millions of domestic phone calls and communications being monitored by an evil conspiracy of neo-cons and spooks, with corrupt telecoms bowing to their masters’ demands. It’s just garbage, dangerous garbage.

Also: “Does Congress Realize We’re at War?

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