In the Arena

FISA: More Than You Want to Know

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I’ve spent the past few days nosing around in the ongoing dispute about what the House FISA Reform bill (The Restore America Act) actually says. I’ve reached no conclusions.

The arguments concern the wording in Section 3, which addresses so-called “Basket Warrants” and Section 5, which addresses Audit Procedures by the Department of Justice’s Inspector General. I’ll give you a sample of one such dispute. This is some of the wording concerning “basket” or group warrants:

”SEC. 105B. (a) IN GENERAL.—Notwithstanding
any other provision of this Act, the Director of National
Intelligence and the Attorney General may jointly apply
to a judge of the court established under section 103(a)
for an ex parte order, or the extension of an order, authorizing
for a period of up to one year the acquisition of communications
of persons that are reasonably believed to be
located outside the United States
and not United States
persons for the purpose of collecting foreign intelligence
information (as defined in paragraph (1) or (2)(A) of section
101(e)) by targeting those persons.

An intelligence community source who deals with the FISA court told me he believed the word “persons” could be interpreted by the court to mean individuals. A Democratic source from the House Intelligence Committee referred me 50USC1801(m), which defines persons as “an individual or any group, entity or foreign power.” In other words, Al Qaeda is a “person.”

“That’s one way to look at it,” the senior intelligence source told me, “but we’ve found the courts want as much information as possible on whom we’re targeting overseas, and it could easily be interpreted as a request for the names of individual overseas targets.”

By the way, both these lawyers–the Democrat and the intelligence source–agree on the need for the Director of National Intelligence or Attorney General to give the FISA court an annual review of their overseas targeting procedures. They disagree about whether the wording of the Democratic bill opens the door to what I described in the column: FISA reviews of overseas targets who communicate with U.S. persons. And again, I made a mistake by not reporting this more thoroughly.

I have neither the time nor legal background to figure out who’s right (ADD: about this minor detail of a bill that will never find its way out of the Congress). A court would probably have to make that determination if the House Democratic bill ever became law. But it won’t. Some version of the bill now working its way through the Senate probably will be the final Congressional product. It will most likely (a) be bipartisan (b) including generally acceptable language on basket warrants and (c) some sort of limited immunity deal for telecoms that can prove they received specific requests from the Bush Administration for information of the sort that will be made legal by the revised FISA reform–in other words, a grandfather clause. Again, let me say that I’m whole-heartedly in favor of such a bill…and George Bush won’t be. But he won’t have a choice if it is passed by a veto-proof majority.

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