Thanks to Jim Burrows for taking the lead and kicking off a series of posts on this difficult subject. With the Obama DOJ currently mirroring the Bush Administration’s stance, we see it as increasingly likely that the issue of FISA is going to come up in Congress relatively soon. So now’s a great time to start framing the issue positively and proactively: what outcome do we want? We’ll update this post with links to future posts in the series … more details soon! — Jon Pincus
As a member of “Get FISA Right”, I find myself asking, “What does ‘get it right’ mean?” I don’t have a definitive answer, but let me give a few thoughts as a basis for a discussion of the topic.
The Foreign Intelligence Surveillance Act (FISA) was originally passed in 1978 order to balance the legitimate need to spy on the nation’s foreign enemies, with the Constitutional rights of her citizens, and especially to curb existing abuse. Technology has changed dramatically since it was written, and our enemies are different. Also, there has been a new round of abuse. All of these must be addressed.
To “get it right”, let me suggest that we need:
- One law that covers all spying
- Require warrants when the US spies on
- Anyone in the US
- US persons (citizens and resident aliens) anywhere
- Allow the intelligence agencies to spy freely on foreigners oversees, even if the taps are in the US
- Require Executive, Judicial and Congressional oversight when protected and unprotected communications are entangled.
- Criminalize violation of the Constitution.
Item #4 is a knotty one. Since foreign and domestic traffic flows through the same “pipes” and is in the clear, and it is not easy to tell just from the content who the participants are, software that sorts what can legally be captured from what cannot can violate the Constitution and the law if it uses the wrong algorithm or has a bug. This is what the “targeting” and “minimization” procedures are all about. There must be diligent oversight, and it requires esoteric expertise. It requires nerds and Constitutional Law experts. And the jurisdiction to oversee.
#5 may seem superfluous, but is important. If your Constitutional rights are violated, you can sue, but only if you prove you have “standing”. If the violation was done in secret, that can be hard to prove. If the criminal law is violated, the Department of Justice and Law Enforcement can and should investigate and prosecute.
That’s my framework. What do you think?
For a longer discussion, let me recommend the following blogs from last summer (disclaimer: #3 is by me):
- David Kris’s “A Guide to the New FISA Bill”, Part I, Part II and Part III.
- Wes Walls’ “Understanding Recent Changes to FISA — A Visual Guide (Flowchart)“
- Jim Burrows’ “I think I understand the FISA bill. Do I?” (at Blogspot. Also on Daily Kos, LiveJournal, MySpace, and Vox)
- Wes Walls’ “FISA Revisited“
- Paul Russell’s three-part “Figuring Out FISA”