H.R. 6304 Translated–What the FISA Compromise Really Means (cont)

Continuing the series of my previous post, analyzing the provisions of the FISA “Compromise” and what they really mean for us:

From Sec 104 of HR 6304, the section I discussed here:

This section deals with the process of obtaining warrants from the FISA court. The existing law, 50 U.S.C. 1804 states

Each application for an order approving electronic surveillance under this subchapter shall be made by a Federal officer in writing upon oath or affirmation to a judge having jurisdiction under section 1803 of this title. Each application shall require the approval of the Attorney General based upon his finding that it satisfies the criteria and requirements of such application as set forth in this subchapter. It shall include–

and then lists what is required from an application. HR6304 makes the following changes to that list

1. The authority and approval of the Attorney General is no longer required to file an application for a warrant from the FISA court. Correction: It seems the application simply need not include the approval, but that the approval is still necessary. Exactly what is intended by this provision is not clear. The real impact of this is debatable–it is a decrease in oversight in name, but whether the Attorney General’s approval requirement held any real oversight power is debatable. My guess is that this is the John Ashcroft provision–Ashcroft refused to reauthorize the warrantless wiretapping program while being hounded at his sickbed by Alberto Gonzalez. I am purely speculating that this is the reason behind this provision, but I cannot think of any other reason for it. More importantly this doesn’t help to make Americans more safe, it just helps the President to get what he wants without troublesome cabinet members getting in his way by doing their job. A definite loser provision.
2. Under the pre-existing law, any time multiple devices are used for a single electronic surveillance (presumably target) the coverage of the devices involved and what minimization procedures apply to information acquired by each device must be included in the application. This requirement has been struck from the law by HR 6304. This is another decrease in oversight, however this is one point where I think a reasonable case can be made in its favor due to how the law defines devices. I disagree with that argument, but it does exist.
3. The required “ description of the nature of the information sought and the type of communications or activities to be subjected to the surveillance” need no longer be “detailed.” Again, an obvious decrease in judicial oversight. The impact of this will be to make easier the primary thing the 4th Amendment was meant to prevent–fishing expeditions for something to charge a target with without prior probable cause. Major loser.
4. Under the pre-existing law either the National Security Advisor, or some other executive branch official in a national security related post (i.e. not the Attorney General) that required Senate confirmation had to provide certain certifications as to the veracity of the application. HR 6304 makes a change here that I may have mischaracterized in my original post. Either it makes the Deputy Director of the FBI an option for the certifying official, or it makes him someone who can designate a certifying official (the way I originally described it). I now believe it to be the former, however I’m not 100% certain on that. What is certain is that either way it gives the President the option of having a certifying official who is not accountable to the Senate. Either way, it is decreased accountability. Another major loser.
5. Under pre-existing law “a statement of the means by which the surveillance will be effected and a statement whether physical entry is required to effect the surveillance” is required in the application. HR 6304 reduces this requirement to a summary statement. Again, decreased judicial oversight.
6. Allows the Director of the CIA to directly submit applications to the Attorney General for review. Not a big deal, except that HR 6304 struck the clause requiring the Attorney General’s approval. So I’m not sure why this is in here. Looking back over the text, they struck the subparagraph that explicitly states that the Attorney General’s approval must be included in the application, but left the clause in the paragraph above that stating the Attorney General’s approval is required to submit an application. So the Attorney General must approve it, but there need be no documentation of it (aside from the written request by one of the officials empowered to make such requests) in the application itself? I am beginning to think they write these laws in such an opaque manner to intentionally confound us.

Lots more to come. Eventually this entire series will be cleaned up, edited, and posted on a single page for easy viewing.