Monday, August 06, 2007

Some Details on the "Updated" FISA

Here are some questions and answers about the new eavesdropping law and the debate surrounding its adoption:

What will the NSA and other spy agencies be able to do now that they couldn't do before?

Intelligence agencies will no longer need a warrant to collect communications between the United States and overseas, including the conversations of Americans, so long as the intelligence investigation is directed at a person believed to be outside the U.S. The conversation does not have to be about terrorism, just a matter of foreign intelligence interest.

The administration has said its intent is not to collect information on Americans. But critics say intelligence agencies are only required to delete Americans' private information from their records if it is deemed not relevant to the investigation.

The attorney general and the director of national intelligence have four months to submit to the secret national security court guidelines for determining what surveillance can take place without a warrant. The court then has six months to approve those procedures and cannot reject them unless it finds that the government has made a clear error in drawing them up, a legal standard critics say will make it nearly impossible for the executive branch to be denied. Democrats had proposed requiring that the court evaluate the guidelines within 45 days and have a greater role in evaluating the procedures. A little-noticed provision in the new law also suggests that warrantless physical searches of homes and businesses inside the United States may be allowed if the investigation concerns a foreign target of an intelligence investigation, a congressional aide said.

What was the urgency about passing this law before Congress took its August break?

The urgency was twofold. Three weeks ago, intelligence officials told lawmakers they were unable to obtain a "significant portion of what we should be getting" because of a judge's ruling in recent months that limited their ability to intercept conversations between foreigners that were routed through the United States - where a lot of computer equipment that handles Internet communications is located. An intelligence official familiar with the matter said the gap had to do with the time involved in processing a warrant. The disclosure of this intelligence gap coincided with a new intelligence report warning of a heightened terrorist threat to the United States. With Congress heading for its month-long summer recess, lawmakers agreed that a short-term fix was needed.

Democrats felt pressured to address the gap before they left town and were unable to pass a measure requiring more court oversight, as many wanted. So many accepted a broader surveillance measure backed by the White House. This law will only be in effect for the next six months.

Plugging a security gap seems to make sense. What is it about the new law that opponents don't like?

The White House and congressional Democrats agreed on the need to close the gap, but differed on how to do it. Both sides said the law should be clarified to ensure that conversations between foreigners could be monitored without a warrant.

The clash arose on the question of warrantless surveillance of conversations between foreigners and people inside the United States. The administration said that it needed quick access to such conversations, and obtaining a warrant would delay intelligence collection.

Many Democrats, however, said the White House's measure went far beyond what was needed to fix the specific intelligence gap.

They said there should be court oversight of government interception conversations involving Americans, even if technically the spy operation was directed at a foreigner. They also wanted to speed the warrant applications and approval process by giving the government more resources to do so.

Much of what the NSA does is classified. Are there questions about the law and how it will work that are difficult for outsiders to answer?

Yes, the largest question critics have raised is whether the administration will consider itself bound by this law. The Bush administration justified previous warrantless surveillance operations, like the "Terrorist Surveillance Program," on a secret presidential order invoking the president's powers as commander-in-chief.

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