I stumbled upon this speculation on FISA in my travels. Thought some might find it interesting.
"Why Not Just Get FISA Warrants?
Back on the subject of the NSA warrantless eavesdropping, we have some intriguing hypotheticals to trot out.
Let's give Brit Hume a chance to set the stage - here he is interviewing Jane Harman, ranking Democrat on the House Intelligence Committee:
HUME: So if you're listening in on an Al Qaida suspect overseas, and you're listening to all of his or her, as the case maybe, phone conversations, and suddenly he's on the phone to someone in the United States, or he's in the United States and you're listening, and he's talking to somebody in the United States, do you believe that you need, then, to shut the surveillance down and go to the FISA court to get it authorized, or to go there later, or what?
HARMAN: Well, I think that in the -- those conversations in the United States would be a perfect basis to get court approval. And there is a 72-hour delay mechanism in the FISA statute. So my answer to you is, number one, it is very important to learn the plans and intentions of our enemies.And number two, we can do that within a legal framework that would give Americans comfort and actually give our court system comfort that the Fourth Amendment is being observed and that our system of laws that Congress has passed, including FISA, which was supposed to be the exclusive way to do electronic surveillance on Americans in America, are being observed.
Let's give Mr. Hume modified props - assuming it is the AL Qaeda operative being targetted while overseas, and his US contact is incidental, a warrant would seem to be unnecessary, based on FISA 1801(f).
However, Mr. Hume modified his question to put both ends of the call within the US, so let's allow him his hypothetical in order to make another point:
Folks seem to be thinking of these taps in terms of real time, with agents wearing headphones listening in as our enemies chat.
However, let me propose my own hypothetical:
Let's *ASSUME* that the NSA *records* every digital transmission from Afghanistan to the US that they can get ahold of. Decrypting and translating take time, so initially they simply maintain a huge vault of raw intercepts. Let's imagine that in June, a telephone of no apparent interest in Kabul dials a phone number of no apparent interest in Manhattan.
That phone in Manhattan is then used to dial a number in Washington DC; the call is also recorded but not decrypted.
A month goes by. Then, come July, Osama himself calls the formerly-uninteresting phone in Kabul. Wow! The NSA is interested now, you betcha!
So, some questions for spies and lawyers:
(a) Is it now worth the computer time to decrypt and translate the June calls from Kabul to Manhattan?
Easy - of course it is, and I think there is broad agreement that, since one leg originated overseas and the interception occurred overseas (broadly defined, perhaps, to include the border), FISA warrants are not necessary.
(b) Will spychasers want to decrypt the Manhattan-Washington DC phone call recorded in June?
I promise, the questions will get more difficult - as to decrypting the call to Washington, of course they will want to.
(c) Can the NSA invoke the 72 hour rule and get a retrospective warrant for that call?
I don't know, but I do know that a lot more than 72 hours have passed since the recording was made. Can the NSA argue that "interception" includes decryption? Would that fly? I don't know (but I would guess not).
So, what is a President to do?
It may be that our data storage capability simply does not mesh well with FISA. Let's go back to 1801(f) for the definition of surveillance:
“Electronic surveillance” means— (1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication...
Emphasis added. One might argue that, until the call has been decrypted and evaluated, the "contents" have not been captured - all that has been stored are digital ones and zeros. If a tree falls in the forest and no one is there to hear it, did it make a sound?
Consequently, the act of "intercepting" and storing the call in digital form was legal (one might argue). And decrypting it later? Well, a probable cause argument is a lot easier if the connection to Osama can be shown.
Now, I am not a lawyer, and some of these points may have been settled. But I'll say this without fear of contradiction - my hypothetical is a lot more interesting than Brit Hume's.
AG Gonzalez alluded to difficulties in amending FISA in ways that covered The Program without revealing it. The second hypothetical may be the sort of thing he had in mind. Or at least, it suggests ways in which the problem might be more complicated than folks realize."
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