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Intelligence officials offered up a rather weird argument in defense of the NSA's warrantless surveillance program in congressional testimony today:

But the administration officials called FISA impractical and ineffective for tracking al Qaeda, saying the law would require separate warrants for each U.S.-bound phone call placed by an overseas suspect.

"It would cause a tremendous burden," said NSA Director Army Lt. Gen. Keith Alexander.

"You'd be so far behind the target if you were in hot pursuit, with the number of applications that you'd have to make and the time to make those, that you'd never catch up."

Now, if FISA actually works like that—if you really need a separate warrant for each call from a foreign suspect to a U.S. person, rather than a single warrant that covers any incoming communication from the person named—that's stupid. I find it a little hard to believe that's really how it works, given that we don't do domestic surveillance that way, but assume it is. Isn't the proper remedy just to tweak FISA to allow somewhat broader warrants? What about this problem requires a whole new program?

Comments

[Ken Shultz]

I bet that whole having to convict a person for every thing you charge him with thingy is a real pain in the ass too.

...If it was all fun, they'd have to pay us to do it instead of the other way around.

[bago]

Uhh, what about those roaming wiretaps from the patriot act?

[Shannon Love]

Julian,

FISA warrants only apply to the legal US resident. You have to get enough information on the resident from an entirely separate source to justify a warrant. For example, during the Cold War the government would go to a FISA court and say "information is missing from this guys section and we have observed him talking to a member of Soviet Embassy" and the court would issue a warrant for communication intercepts that the agencies would use to try to confirm the suspicions raised by the other evidence.

In many terrorism cases such independent evidence may never exist. Consider the following scenario: The NSA is tracking the communications of a foreign national operating in another country. The suspect communicates with some unknown person in the US. Under the strict interpretation, the NSA cannot monitor the communication unless they already have a warrant on the legal resident. If they have no independent evidence against this person how could they get a warrant? If the mere fact that they received a communication from a foreign suspect is sufficient in and of itself to secure a warrant what is the point of getting a warrant in the first place? The court would just be a rubber stamp. If the NSA has to cache communications until it uncovers independent information that the recipient might be committing a crime, it will definitely fall behind events.

This is the problem with thinking of terrorism as civil criminal problem instead of military. In the civil system, intercepted electronic communications are used to uncover who committed a known crime or at the very least to confirm other independent information that someone plans to commit a crime. The civil system never uses intercepts as the starting point for a criminal investigation. The military by contrast uses intercept to discover and prevent threats. The military thinks of intercepts as radar in cyberspace. They do use incepts as the starting point. Its an entirely different paradigm.

[Shannon Love]

If anyone cares, the actual hearing statements are available at the Senate Judiciary Committee website. Gen. Alexander's doesn't appeared to have made a statement.

[crimethink]

Shannon Love,

In that situation, is it not possible for the investigators to file for a warrant retroactively, as FISA allows?

[independent worm]

Shannon Love,

If what you say is true (and I dont' think it is, but for the moment I have to let it go) then the CIA or military can intercept on the basis the foreign national is the suspect, and the fact that the communication is to a US citizen is irrelevant.

But I belive NSA can still intercept in that situation anyway. Nothing prevents it.

I've said it plenty of times, but here goes again: if ANY part of the govt has any reasonable basis to think ANY US citizen is planning a crime, that alone justifies tapping his phone. And that tap can include ALL his calls, not just those to certain numbers belonging to foreign nationals.

In short: despite all the bullshit that people throw around, it is, and has long been true, that both state and federal governments could tap the phone of anyone suspected of planning crimes. American citizens have long conspired with foreign co-conspirators to: launder money, sell drugs, murder, kidnapping, and plenty of other crimes. "Blowing shit up" is not somehow magically different as to require some new kind of authority and tactics for intercepting phone calls.

You "civil criminal" (whatever that is)/military distinction is pure hogwash.

[Moesa]

The problem is CIA is moving to NSA/DIA and they are not trusted. The rules will have to change to protect Americans.

[Shannon Love]

crimethink,

In that situation, is it not possible for the investigators to file for a warrant retroactively, as FISA allows?

Certainly, but on what basis would they seek a warrant? They can't read any of the communications without a warrant but they can't justify a warrant with information from an entirely independent source. What if the information is time critical?

The real question is: can we use communication intercepts to identify potential targets of investigation living in the US or can we only use intercepts to try to confirm or refute suspicions raised by other means? Can we start investigations with intercepts or can we only end them?

[Shannon Love]

independent worm,

...CIA or military can intercept on the basis the foreign national is the suspect,...

Absolutely wrong. No warrant is ever needed to monitor the communications of any foreigner unless they are communicating with a legal US resident. The warrants exist in the first place to keep the government from spying US residents. What do think all the debate is about?

...if ANY part of the govt has any reasonable basis to think ANY US citizen is planning a crime, that alone justifies tapping his phone....

They must convince a judge that they enough evidence prior to and independent of the wiretap itself to intimate a wiretap. Just to repeat myself, the civil criminal justice system does not use intercepts to reveal previously unknown crimes but to confirm suspicions raised by other sources of information. The police and the FBI don't randomly monitor the communications of even known criminals on the off chance they might discuss a crime. They have to have specific evidence of a specific crime before they can get a warrant.

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