Thanks to many who responded to my request, particularly to commenter LITBMueller for this highly informed comment.
Starting off, Marty Lederman has explained the limitations of the six-month “sunset” clause much better than I did a few days ago:
Although section 6(c) provides that the operative provisions of the Act “shall cease to have effect 180 days after the date of the enactment of this Act,” i.e., on February 1, 2008, there is an express exception in section 6(d), which reads as follows:
AUTHORIZATIONS IN EFFECT.—Authorizations for the acquisition of foreign intelligence information pursuant to the amendments made by this Act, and directives issued pursuant to such authorizations, shall remain in effect until their expiration. Such acquisitions shall be governed by the applicable provisions of such amendments and shall not be deemed to constitute electronic surveillance as that term is defined in section 101(f) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(f)).
Thus, “acquisitions” authorized by Attorney General Gonzales will be permissible for one year, even if that period extends beyond the ostensible February 1, 2008 sunset date. I think it’s fair to assume that the Attorney General will authorize a system of such acquisitions on or close to February 1, 2008, which will mean that the warrantless surveillance can continue until . . . February 1, 2009, or twelve days after the next President is sworn in.
Next I asked who can and cannot be wiretapped? LITBMueller explained that “acquisitions” means more than just wiretaps:
[W]e’re talking about the government either obtaining phone records of past calls, or plugging into the system to listen as a call is made (more traditional wiretapping, but different in that this is with the compliance of the phone co., and not using a “bug” or listening device).
Plus, note that the bill refers broadly to “communications” – that leaves open the possibility of intercepting incoming, outgoing, or stored emails, faxes, and other data transmissions.
This post by Anonymous Liberal explains well how the bill expands the list of acceptable surveillance methods:
[T]he bill significantly narrowed FISA’s definition of “electronic surveillance.” Here’s what the amendment says:
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.
Thanks to this carve out, many–if not most–intercepted communications between someone in the U.S. and someone in another country (even if that person is a U.S. citizen) are no longer considered “electronic surveillance.”[…] Furthermore, the bill passed by Congress did not amend FISA’s criminal and civil liability provisions, which, like the exclusivity provision, are still tied to the definition of “electronic surveillance.” For instance, section 1809 of FISA makes it is a felony to “engage in electronic surveillance under color of law except as authorized by statute.” All of the other punitive provisions are similarly worded.
Therefore, as long as the government is engaged in “surveillance directed at a person reasonably believed to be located outside of the United States,” it cannot possibly run afoul of FISA’s criminal or civil liability provisions, even if it totally disregards all of the procedures and oversight requirements spelled out in the bill. There’s no penalty for non-compliance.
As I understand it, the most profound change in this bill comes from redefining a huge category of communications – anything involving someone “reasonably believed to be located outside the United States” – away from FISA jurisdiction. Marty Lederman has hosted a debate concerning whether the law opens up far more than that:
I’ve been arguing that the main problem with 105B is that it is touted as a check on the broad scope of section 105A, but in fact its safeguards are toothless. The Washington Post and others have, by contrast, suggested that 105B actually authorizes new forms of NSA searches, over and above those authorized by the very broad new section 105A.[…] [A]s commenters such as Just an Observer, Anonymous Liberal and others have noted, even if I am right, there are at least two other possible important questions raised by 105B:
First, does 105B authorize types of “acquisitions” of information other than “contents” of communications, in a way that would previously have been prohibited by statutes other than FISA, such as the Communications Act, the Stored Communications Act, and the Pen Register Act? Its broad language (“Notwithstanding any other law . . . “) might be read to suggest as much. In other words, perhaps the evisceration of FISA is the least of it.
Second, even if 105B doesn’t authorize any activity that was previously prohibited, the compulsory service provisions do appear to vastly increase the ability of the NSA to enlist the service of many private parties to obtain information that once would have been difficult or impossible for NSA to acquire, thereby dramatically increasing the breadth of NSA surveillance as a practical matter.
Depending on how one reads the law ISPs, schools, telcoms and any other data carrier may have just become involuntary operatives in the government’s war on whoever it feels like wiretapping. Or maybe not. Lederman again (formatting mine):
More fundamentally, the fact that no one, not even those on the relevant congressional committees, appears to truly understand whether and to what extent 105B does either of these things, and what the exact relationship is between 105A and 105B, is perhaps the biggest problem of all with this legislation: Congress quite simply does not have any sense of what it has authorized — and therefore, of course, neither does the public.
Fortunately we can rest assured that this administration would never take advantage of legal ambiguity.
Regarding my next question, who approves?, the law clearly gives joint power over day-to-day management to the Attorney General and the Director of National Intelligence. The question of oversight, however, is more interesting. LITBMueller summarizes in his comment:
This, and other language, shows that the bill only require the DNI & AG to “reasonably believe” that the person who will be listened in on is outside the US.[…] The highlighted language essentially makes the Senate’s participation in oversight completely optional, at the discretion of Administration officials. They don’t have to certify anything to Congress. And, anything they declare themselves to be an emergency, they can do the certification post hoc.
The certification then goes to the FISA court for review. And, remember, the belief that the subject is outside of the US only needs to “reasonable.” “Reasonableness” is a term of art in the law: if the government is held to a “reasonableness” standard, then it wins 9.95 times out out of 10. So, don’t expect the FISA court to question the government’s determination of reasonableness.
As far as I can tell nobody directly supervises the government’s activities. Rather AG Gonzales, under oath, writes up the methods that he plans to use and submits that to FISC for approval. Thank god Alberto Gonzales would never, ever perjure himself.
Now imagine that FISA improbably turns down a certification for failing to meet the astonishingly generous “reasonableness” standard. What happens then? Orin Kerr:
[U]nder Sec. 6(d), it will remain in effect pending appeal even if the FISA court strikes down the program as “clearly erroneous,” the FISA Court of Review agrees with the FISA court, and the case ultimately goes up to the Supreme Court. If you figure the time it would likely take for a certification to be made and the legality to be addressed all the way up to the Supreme Court, this pretty much means that no matter what the courts think the monitoring will go on until close to the end of the Bush Administration.
In sum, as near as I can tell, the administration essentially has a broad surveillance power that cannot be practically revoked. It allows the government to listen in on communications involving anybody speaking to someone who even might be a foreigner, and even that standard depends on the honesty of a serial perjurer. Even if said perjurer manages to submit an application so improbably awful that the FISA court says no, the wiretap can go on until the Supreme Court issues an opinion that says otherwise, which probably won’t happen until the president has already left office. Better, that only summarizes the clearly written parts of the bill. Depending on your interpretation the mysterious section 105b could make the foregoing seem minor.
I am having a hard time seeing how this bill is any different from allowing the Bush government to listen to any conversation, anywhere, without the smallest legal hazard.
Imagine for example that Gonzales decides to listen in on Nancy Pelosi’s office. Even if Gonzales doesn’t lie (who could tell if he does?) or submit a cleverly vague application, the FISA court lacks the power to stop a Pelosi tap. Rather, listening would go on until the Supreme Court eventually rules on the matter. The DoJ, of course, is responsible for pursuing the case through appeals and up to the Supreme court. I bet that they fast-track it. In the best case scenario the Supreme Court rules some time next year that Gonzales should stop listening to Pelosi’s phone calls. What happens then? Sorry, my bad. We’ll stop now.
And that is where things will remain until 2009. Imagining that a useful revision will clear a filibuster is higher fantasy than John’s elf sword. Science not yet invented numbers that can describe the Dems’ chances of overriding a veto.
Unless somebody can convince me that I (and many others) have the story completely wrong, the current Democratic leadership is dead to me. If I’m still blogging in 2009 my top priority will be to remove Pelosi and Reid from their leadership positions and hang this albatross around any Dems who voted for it. It should not sound overly idealistic to say that we can do better than this.
Marty Lederman again:
Obviously, what happened is that the Democratic leadership decided not to insist that Democrats could vote only to allow warrantless foreign-to-foreign surveillance. Presumably, the Democrats could have simply voted in favor of the Democratic bill, giving the Administration what it professed to need, and sent that bill to the President for his veto. But the leadership chose not to instruct their caucus to do so. And no one has yet quite uncovered the story of why Speaker Pelosi and crew did not simply insist on that course of action.
Not. Leadership. Material.
A New article from Risen and Lichtblau illustrates how Congressional Dems are freaking out about the new powers they just gave the government. It is a sign of the Democrats’ frantic retreat on this issue that their primary defense has become the idea that they rushed the bill and threw in a bunch of bogus new powers through some sort of proofreading error. I’m not kidding.
It is possible that some of the changes were the unintended consequences of the rushed legislative process just before this month’s congressional recess, rather than a purposeful effort by the administration to enhance its ability to spy on Americans.
“We did not cover ourselves in glory,” said one Democratic aide, referring to how the bill was compiled.
Leaving aside how surprisingly common criminal incompetence has become as a line of defense (cough, Gonzales), that line of reasoning just won’t fly. Democrats spent months negotiating and drafting a perfectly sensible compromise. The only reason they had to redraft the bill was because the Bushies dropped a pile of bullshit demands on them at the eleventh hour and the Dem leadership lacked the spine to do anything but pass the crap practically verbatim. They got rolled. Everybody down to the once-a-week TV consumer knows it; consequently it will shock me if this lame pseudo-defense survives the weekend.