DOJ’s Wainstein: Dem FISA Bill Gives Court Too Much Power

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In a conference call with reporters this afternoon, Kenneth Wainstein, assistant attorney general for national security, raised “serious concerns” about numerous provisions contained within the new FISA bill, which the House judiciary and intelligence committees approved today.

But let me focus on the question I brought up this morning: Although the new bill authorizes surveillance of foreign-to-foreign communications, how does the intelligence community know ahead of time whether a surveillance target abroad calls into the United States?

After a FISA Court ruling in the spring that foreign-to-foreign communications passing through U.S. switches or email servers were subject to FISA, both Democrats and Republicans agreed the law needed to be fixed. The Protect America Act signed into law in August did just that. Surveillance targeted at a person reasonably believed to be overseas and in possession of foreign intelligence information would be outside the purview of the FISA Court.

But what about cases where the government is targeting non-U.S. persons located outside the U.S. who might contact people within the U.S.?

Under the new bill, the so-called RESTORE Act, the FISA Court has an up-front role in determining whether the surveillance methods are appropriately targeted at non-U.S. persons. Where the government is targeting non-U.S. persons located outside the U.S. who might contact people within the U.S., the intelligence community does have to get an order–an “umbrella warrant”– every year from the court authorizing the surveillance. Under PAA, the current law, the court’s role is after-the-fact and only kicks in when the government is “clearly erroneous.”

“Here, this is not a matter, under the RESTORE Act, of the Court just reviewing procedures outside FISA,” Wainstein said when I asked about the distinction. “Rather, this says this surveillance would be under the jurisdiction of the FISA Court. We’d have to file an application, and it could be [for an umbrella warrant], and the FISA Court has to approve, and if not, we have to go down” on that surveillance.

The reason for the new umbrella warrant requirement is that, under the PAA, there’s no court review during or after the surveillance to ensure that no U.S. person-related information has been collected as well. Democrats wanted some measure of judicial oversight to protect against abuse, albeit a measure that civil-libertarian critics call weak. But for the Administration any suggestion that the FISA Court play a role in authorizing foreign-centric surveillance is unacceptable.

Update: This post has been revised.

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