The Powerful and Obnoxious Odor of Mendacity: FISA and the Bill of Rights

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." 

Mukasey alleges in his op-ed that "(t)he increased volume of applications for judicial orders under FISA impaired our ability to collect critical intelligence, with little if any corresponding benefit to the privacy of people in the U.S." In November 2007, Mark Klein, a retired AT&T technician, visited Washington D.C. to talk to congressional staff members and journalists about his personal knowledge of wiretapping by the National Security Agency (which directed the Terrorist Surveillance Program), including massive unfiltered electronic surveillance of Internet traffic and telephone calls to and from U.S. citizens. This disclosure has been an integral part of a pending lawsuit against AT&T, yet this information had received little media attention prior to Mr. Klein's trip to Washington. Monitoring an electronic communication is a search. As specified by the Fourth Amendment, the Government must have some reasonable basis for directing a search at a particular target. Although a reasonable search does not necessarily require a warrant, probable cause is a prerequisite for any reasonable search. Contrary to what both McConnell and Mukasey posit, a search is not reasonable merely because the underlying motivation (e.g., the possibility that a search may uncover dangerous illegal activity) for the search is reasonable. It is possible to understand why McConnell might not understand this legal distinction, but such equivocation is inexcusable from the Attorney General of the United States.

"Before the Protect America Act was enacted, to monitor the communications of foreign intelligence targets outside the United States, in some cases we had to operate under the Foreign Intelligence Surveillance Act, known as FISA, a law that had not kept pace with changes in technology. In a significant number of these cases, FISA required us to obtain a court order. This requirement slowed - and sometimes prevented - our ability to collect timely foreign intelligence." 

"Until recently, our surveillance efforts were hampered by the unintended consequences of an outdated law, the Foreign Intelligence Surveillance Act, which was enacted in 1978 to establish a system of judicial approval for certain intelligence surveillance activities in the United States."

We addressed every one of the concerns Mr. McConnell raised. He said he needed to clarify that a court order was not required for foreign-to-foreign communications -- our bill did just that. McConnell said he needed an assurance that telecommunications companies would be compelled to assist in gathering of national security information – our bill did that. The DNI said he needed provisions to extend FISA to foreign intelligence in addition to terrorism – the bill did that. He asked us to eliminate the requirement that the FISA Court adjudicate how recurring communications to the United States from foreign targets would be handled – the bill did that. McConnell insisted that basket warrants be structured to allow additional targets to be added after the warrant was initially approved – again, the bill did that.

When this legislation was described to DNI McConnell, he acknowledged that "it significantly enhances America's security." Yet, suddenly, on the eve of the vote, Director McConnell withdrew his support after consultation with the White House. If the media wanted to identify over-the-top partisanship, they could begin by citing the declaration of David Addington, Vice President Cheney's Chief of Staff, that "We're one bomb away from getting rid of that obnoxious FISA Court," and DNI McConnell's assertion that by merely having an open debate on surveillance, "some Americans are going to die."

In a interview with a a reporter from the El Paso Times newspaper on August 14, 2007 (after passage of the PAA of 2007), Mr. McConnell made exaggerated and unsupported allegations about the length of time and the amount of effort required to comply with FISA. Specifically, Mr. McConnell alleged in this newspaper interview that it takes 200 hours to assemble a FISA warrant request on a single telephone number.

What Mr. McConnell failed to acknowledge is that his allegation referred to the length of time it takes to assemble a warrant request by writing in charcoal on the back of a wooden shovel, using only the light of a fireplace, and then transporting such warrant request by tramp steamer from Afghanistan to Guam for transcription. After this newspaper interview, an aide to McConnell explained to him the miracle of word processing and global communication systems.

Mr. McConnell has whined that, prior to passage of the PAA of 2007, FISA hindered the ability to collect information from foreign intelligence targets because "foreign-to-foreign" communications might be routed through a location in the United States, and the acquisition of such communications therefore was considered to be "in the United States" under the FISA statute. This defect in FISA was also cited by Mr. Mukasey in his op-ed.  McConnell states that "the intelligence community should spend its time protecting our nation, not providing privacy protections to foreign terrorists and other diffuse international threats.", but both McConnell and Mukasey know that the contested issue is not foreign terrorists. In his testimony before the Senate Judiciary Committee in September 2007, Mr. McConnell stated that he would oppose any language that would amend FISA only to exclude "foreign-to-foreign" communications from the scope of FISA because the intelligence-gathering agencies cannot demonstrate with certainty that those people with whom their targets will communicate would be exclusively outside the United States and because such language would not enable intelligence-gathering agencies to monitor communications of foreign intelligence targets outside the United States who may communicate with a "sleeper" or co-conspirator who is inside the United States.

These are specious arguments because FISA, as it existed prior to the PAA of 2007, did not require intelligence-gathering agencies to predetermine whom their foreign intelligence targets would contact, and also did not require intelligence-gathering agencies to guarantee that communications from foreign intelligence targets would be exclusively between persons located outside the United States.

It has long been taken for granted that U.S. citizens do not lose our Constitutional rights with respect to our own government when we travel outside the country, but Section 105A of the PAA of 2007 states:

"Nothing in the definition of electronic surveillance under 101(f) shall be construed to encompass surveillance directed at a person reasonably believed to be located outside of the United States."

One could argue that this change in FISA does not alter the Fourth Amendment to the Constitution, and technically that is true, but from a practical standpoint, the Fourth Amendment Constitutional rights of U.S. citizens with respect to our own government are no longer protected while we are outside the country. Although Mr. Mukasey and Mr. McConnell repeatedly emphasize the problems associated with foreign intelligence targets located outside the United States, electronic surveillance of foreign intelligence targets located outside the United States usually did not require a warrant prior to passage of the PAA of 2007 because electronic surveillance of foreign intelligence targets located outside the United States was not included in the definition of electronic surveillance under FISA [Title 50 U.S. Code, Chapter 36, Subchapter 1, Section 1801(f)].

In September 2007, Mr. McConnell testified before the Senate Judiciary Committee that the PAA of 2007 does not need to be rewritten to protect the rights of United States citizens who may be outside the United States because it is alleged that such rights are protected by Section 2.5 of Executive Order 12333. Former Attorney General Alberto Gonzales and his successor, Mr. Mukasey, have both testified before the Senate Judiciary Committee that they do not think that the President is subject to laws which restrict the extremely vague inherent powers of the President under their convoluted interpretation of the Constitution. We are supposed to trust the Executive to adhere to an Executive Order when it has already been established that the Executive will not abide by a law (FISA) passed by Congress.

On January 24, 2008, Senator Jay Rockefeller and Senator Kit Bond offered an amendment to pending FISA legislation to protect the constitutional rights of U.S. citizens during periods of absence from the United States, but this addition to the Senate Intelligence Committee revision of FISA appears to be an attempt to decorate a turd.

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