The Law On Wiretapping

The New Republic, August 18, 2007

The New York Times calls it an ‘unnecessary and dangerous expansion of President Bush’s powers’ and warns that it will ‘allow the government to intercept, without a warrant, every communication into or out of any country, including the United States.’ My former colleagues at The Washington Post call it ‘reckless’ and fret that ‘the government will now be free to intercept any communications believed to be from outside the United States (including from Americans overseas) that involve ‘foreign intelligence’–not just terrorism. … Instead of having the Foreign Intelligence Surveillance Act court ensure that surveillance is being done properly, with monitoring of Americans minimized, that job would be up to the attorney general and the director of national intelligence.’ Both papers blasted congressional Democrats for bowing to pressure from the administration and passing such an unacceptable law. And House Speaker Nancy Pelosi is indicating that Congress will revisit the provision, which sunsets in six months in any event, when it returns from its break.

Allow me a note of dissent–and defense of the Democrats who voted for the change. Without knowing facts that remain stubbornly classified, I cannot assess whether the new changes to FISA are wise or not as long-term policy. They do not, however, seem outrageous to me; nor does the Democratic decision to give them to the president on a short-term basis. What’s more, to consider beyond the pale this sort of wiretapping with no oversight from the courts of communications between targets overseas and Americans at home, you’d have to be outraged at much more than the new law’s changes to the FISA. You’d have to be outraged at the FISA itself. Indeed, all of the horrors the Times and Post fear in the new law were permitted by the original one it supposedly gutted.

“Hang on,” I hear you cry. “Wasn’t the 1978 FISA a restraint on government surveillance power? Didn’t it put a court between the spooks and their targets? And doesn’t this law remove that court in vast numbers of cases?” Yes to all. But the story, at least as regards overseas communications, is a lot more complicated than that.

The 1978 law was intended to regulate domestic wiretapping, not overseas collection. Its mind-numbing definition of “electronic surveillance” requiring approval by the secret court it set up hinged simultaneously on the technical modes of interception the government used, the geographical location in which the spooks tapped the lines, and the location of the target of the surveillance. Roughly speaking, here’s how it worked:

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