What the NSA really thinks about FISA and warrants within the US

[The Straight Story]

Yet the Fourth Amendment is clearly not always at issue when NSA or another intelligence agency acts, and the FISA surely never sought to encompass all activities of the NSA within its coverage. Rather, the definitions of the term "electronic surveillance" contained in the statute have always affected just a portion of NSA's signals intelligence mission. Indeed, by far the bulk of NSA's surveillance activities take place overseas, and these activities are directed entirely at foreign countries and foreign persons within those countries. All concerned agree, and to my knowledge have always agreed, that the FISA does not and should not apply to such activities. When NSA undertakes surveillance that does not meet any of the definitions of electronic surveillance contained in the FISA, it does so without any resort to the court and without reliance on a showing of probable cause.

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Because of the way the definitions of "electronic surveillance" contained in the current statute are constructed, the answers to several questions are relevant to the determination of whether a FISA order is required in order for NSA to engage in electronic surveillance. These questions concern the nationality of the target, the location of the target, the means by which the target is communicating, and the location from which the surveillance will be carried out. We believe that the truly significant question on this list is the one that gets to the heart of the applicability of the constitution- the location of the target of surveillance. The other questions reflect a common sense approach to 1978 technology that worked well in 1978, but that today appears to have unintended effects.

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The legislative history makes clear with respect to that definition that when the communications of U.S. persons located in the United States are targeted, the surveillance is within the scope of FISA irrespective of whether the communications are domestic or international and likewise irrespective of where the surveillance is being carried out. 2 The same legislative history regarding that first definition of electronic surveillance makes equally clear, however, that the statute does not regulate the acquisition of communications of U.S. persons in the United States when those persons are not the actual targets of the surveillance. 3

We think these principles, clearly and artfully captured in parts of the legislation and in the legislative history, should extend to all surveillance under the FISA. The need for a court order should not depend on whether NSA's employees conducting the surveillance are inside the United States or outside the United States, nor should it depend on whether the communications meet the technical definition of"wire communications" or not. These factors, never directly relevant in principle but once relevant in the context of yesterday's telecommunications infrastructure, are today utterly irrelevant to the central question at issue - who are the people requiring protections.

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In addition to changes to the definition of electronic surveillance, other changes in the bill are important as well. First, and most crucially, the Government must retain a means to compel communications providers to provide information to the Government even in the absence of a Court Order. The Bill would authorize the Attorney General to require such cooperation, and would also insulate from liability those companies that assist the IC in preventing future attacks on the United States.

More here:

http://www.nsa.gov/public_info/speeches_testimonies/26july06_dirnsa.shtml

[The Straight Story]

1. Adding this from other testimony:

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At the same time, we believe that any legislative package must deal with the litigation arising from the Terrorist Surveillance Program and other alleged classified intelligence activities. Such litigation risks national security by increasing the risk of additional disclosures and by subjecting vital intelligence activities to the unpredictability of varying and sometimes conflicting court decisions. Traditionally, the state secrets privilege has blocked or at least curtailed such litigation. But we face an unprecedented wave of litigation and urge Congress to act to protect sensitive national security programs.

Finally, we respectfully take issue with certain aspects of the oversight provisions in Representative Wilson's bill. In particular, section 8 would require that reports to Congress provide detailed information on each individual target of an electronic surveillance program-a requirement that would be burdensome to satisfy, and would add little meaningful information to the oversight committees. We are willing to work with Representative Wilson and this Committee to develop reporting requirements for electronic surveillance programs that provide Congress with the information it needs without overly burdening intelligence and law enforcement personnel. More generally, we believe that the longstanding laws and traditions concerning intelligence committee oversight have been effective and workable, and we therefore have concerns with changes that would amend the National Security Act in a manner that alters these settled understandings.

http://www.nsa.gov/public_info/speeches_testimonies/12sept06_potenza.shtml