In a story in today's Washington Post, Assistant Attorney General for National Security Kenneth Wainstein candidly admitted that the problems with FISA (the asserted impetus to the need for new surveillance legislation) are not with foreign-to-foreign telephone calls.
At the breakfast yesterday, Wainstein highlighted a different problem with the current FISA law than other administration officials have emphasized. Director of National Intelligence Mike McConnell, for example, has repeatedly said FISA should be changed so no warrant is needed to tap a communication that took place entirely outside the United States but happened to pass through the United States.
But in response to a question at the meeting by David Kris, a former federal prosecutor and a FISA expert, Wainstein said FISA's current strictures did not cover strictly foreign wire and radio communications, even if acquired in the United States. The real concern, he said, is primarily e-mail, because "essentially you don't know where the recipient is going to be" and so you would not know in advance whether the communication is entirely outside the United States.
In short, Wainstein said that the current interpretation of FISA does not impede the interception of foreign-to-foreign telephone calls - even after the secret FISA court ruling that McConnell claims required the change in the law. Indeed, it does not impede the interception of foreign-to-foreign emails, VOIP calls or other communications, so long as you know both ends are foreign.
This is a critical admission because it puts the lie to talking points made all over by supporters of the wiretapping legislation. For example, it now appears that Sen. Saxby Chambliss was incorrect when he recently wrote:
ALL OF A SUDDEN, our intelligence agencies were required to obtain court orders to collect the communications of foreign terrorists located overseas who were communicating with individuals overseas -- for example, a call placed from a terrorist in Iraq to a terrorist in Pakistan or Afghanistan."
Similarly, Congressman Pete Hoekstra (R-MI) went beyond the DOJ's interpretation when he said to The Heritage Foundation:
it is possible that a cell phone call between two terrorists in Pakistan could pass through the United States and require a time-consuming FISA court order for U.S. intelligence agencies to monitor that call.
Hoekstra and Chambliss' examples do not work because, according to Wainstein's interpretation of FISA, the surveillance law does not require court orders for foreign-to-foreign phone calls, or any other communications where both ends are known to be overseas. Likewise, it disproves Andrew McCarthy breathless response to Factcheck.org's review of the now infamous Defense of Democracies ad:
FISA took pains to carve foreign-to-foreign communications out of its arduous, probable-cause framework, which was designed to give protection to Americans inside the United States. It took a radical court decision to apply FISA outside the U.S. The Protect America Act was “the law” that Congress enacted to reverse the court decision and reaffirm that FISA (and its requirements of court-supervision and probable-cause triggers) should not apply to foreign-to-foreign communications.
As is obvious to everyone except McCarthy, the Foreign Intelligence Surveillance Court is no "radical court," and the notion that the FISC made such a sweeping ruling was difficult to understand. But now, thanks to Kris' question, it is clear that McCarthy was incorrect in his understanding of the secret ruling, and therefore the basis for the Defense of Democracies television ad.
Wainstein's comment also helps make sense of the Director of National Intelligence's careful wording about the secret court ruling. Recently, Wired News' Threat Level interviewed DNI Spokesman Ross Feinstein:
Today, a spokesman for the Director of National Intelligence spokesman Ross Feinstein told THREAT LEVEL bluntly that the court made the big ruling:
"If a communication touches a U.S. wire. you need a court order," Feinstein said. "If it comes through the U.S., you need a court order."
When THREAT LEVEL expressed dismay, Feinstein put the phone on hold and returned shortly, with a different explanation.
"Due to rulings from the FISA court, in a significant number of cases, the government had to get court orders for purely foreign-to-foreign communications that touched American wires," Feinstein said.
Wainstein's explanation shows why the ODNI had to revise its original blanket statement, since apparently the secret court order only effected communications where it was possible that a US person was part of the communication. Perhaps the FISA court also held that dragnet surveillance on US switches was a violation of the law. It's hard to say, unless the Administration releases the decision.
This acutely illustrates the problem with making policy and changing laws without having all the information. This secret court ruling is the main basis for the "modernization" of FISA, and yet we (and Congress) know very little about it. Worse, yet, the mystery surrounding the decision allows for advocates to adopt deceptive positions on what the court said, which are very hard to disprove.