A Stitch in Haste

The Bush Administration wants Congress to amend the Foreign Intelligence Surveillance Act ("FISA") to allow for more domestic spying:

Currently, under the 1978 Foreign Intelligence Surveillance Act, individuals have to be associated with a foreign terrorism suspect or a foreign power to fall under the auspices of the FISA court, which can grant the authority to institute federal surveillance. The White House proposes expanding potential targets to include non-citizens believed to possess, transmit or receive important foreign intelligence information, as well as those engaged in the United States in activities related to the purchase or development of weapons of mass destruction.

The proposed revisions to FISA would also allow the government to keep information obtained "unintentionally," unrelated to the purpose of the surveillance, if it "contains significant foreign intelligence." Currently such information is destroyed unless it indicates threat of death or serious bodily harm.

Two hasty stitches:

--Do you think this administration (which, recall, has previously dismissed FISA outright as either repealed by the AUMF, or just plain unconstitutional as an infringement upon the president's "unitary executive" power) would interpret the term "related to" expansively or narrowly? With enough strained logic, anything can be "related to" anything else. Merely visiting certain websites can be "related to" activities (defined how?) conceivably connected to terrorism. So could an ATM withdrawal. Or a phone call. The FIS Court already grants well over 99% of domestic spying warrant requests, so where exactly is the "warrant gap" that the administration insists is hampering it?

--The same logical flaw underpinning the NSA domestic spying program would apply to this new authorization — it can and will still ensnare American citizens on American soil. The government still needs only one party to the communication — or, now, "activity" — for the government to obtain a warrant. If the "activity" touches a U.S. citizen, then intentionally or not it's still domestic spying on American citizens. Into that bramble bush we have already ventured too far.

If anything, Congress should be reining in the FISA warrant complex and strengthening the standards for granting FISA warrants. And the whole question of the NSA's warrantless wiretapping program remains unresolved.

So perhaps "first things first" is the better position right now.

More thoughts at Liberty Papers.