June 10, 2008 | By Kurt Opsahl

What Will Happen to Surveillance in August 2008

Yesterday the New York Times published an article, "Return to Old Spy Rules Is Seen as Deadline Nears," which allowed various Administration official to push their talking points supporting expanding their warrantless wiretapping powers. The main focus of the talking points is to suggest that Congress faces a deadline in August 2008 due to the expiration of the Protect America Act, and must pass surveillance legislation before that deadline.

The talking points have been effective: "Even some Democrats, at odds with the White House for months over the surveillance issue, said they were worried about the summer situation." Yet, contrary to the government’s fear mongering, America will have tremendous tools available to monitor terrorist threats in August 2008 and beyond.

Marty Lederman at Balkinization has provided an astute analysis of "What the FISA Debate is Not About", also discussing what will happen in August.

PAA Orders Can Remain Valid Through February 2009

Under the Protect America Act, orders expire one year from the date they are issued. Given the Bush Administration’s stance on surveillance, it would be shocking if the Administration did not re-issue orders in February 2008, as it became clear that the Protect America Act would expire. The only reason for the Administration not to re-issue the PAA orders for another year would be a cynical attempt to manufacture an intelligence crisis. Thus, the government should be able to freely conduct surveillance on Al Qaeda, Hamas, Hezbollah and other terrorist organizations through at least February 2009.

Of course, it may be possible that the Government is so cynical as to refuse to get new order so that some PAA order will expire in August. In such as case, the responsibility for any “degradation” of intelligence capacity lies firmly with the Administration. Moreover, Congress can quickly resolve this issue by extending the existing PAA orders by six months.

The Government Can Still Wiretap Foreign-to-Foreign Communications

As reported by the Washington Post, "in response to a question at the [American Bar Association] meeting by David Kris, a former federal prosecutor and a FISA expert, [Assistant Attorney General for National Security Kenneth] Wainstein said FISA's current strictures did not cover strictly foreign wire and radio communications, even if acquired in the United States."

As Deeplinks has previously discussed, 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. Thus, according to the Department of Justice's own 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, even if the communication passes through a U.S. switch. The Government does not need prepare individual warrants for surveillance of terrorism targets overseas.

The Government Can Wiretap Known Terrorists Calling to People in the United States, With an Easily Obtained FISA Order

Pursuant to FISA, the government can freely wiretap any “agent of a foreign power,” which includes those who “engages in international terrorism or activities in preparation therefore.” Any one who the Intelligence Community has evidence is a terrorist is fair game, even if the terrorists are communicating with a United States person.

The FISA court approves almost every application put before it. For example, the court granted all but four of 2,371 government requests in 2007. FISA Court Judge Royce C. Lamberth, has said he has approved FISA orders in minutes with only an oral briefing.

The Government Can Wiretap Overseas

Even without the Protect America Act, the Government may conduct surveillance where the collection occurs overseas. Surveillance operations in Iraq or Afghanistan may continue unabated. FISA only protects U.S. persons.

The Government Can Conduct Emergency Surveillance Without A FISA Court Order

Under FISA, surveillance can begin immediately and approval of the FISA Court can be obtained retroactively within three days.

FISA Will Remain Up To Date with Modern Technology

FISA has been updated more than 50 times since being enacted in 1978, including several times after 2001. There is no new technology that evades FISA.


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