Krauthammer mischaracterized new FISA law as limited to foreign-to-foreign communications

››› ››› RAPHAEL SCHWEBER-KOREN

On the August 6 edition of Fox News' Special Report, nationally syndicated columnist Charles Krauthammer falsely suggested that the recently approved amendments to the Foreign Intelligence Surveillance Act (FISA) allow the administration to intercept without a warrant only foreign-to-foreign communications that happen to be routed through telecommunications switches in the United States. In fact, the recent changes to FISA also permit warrantless monitoring of Americans' international communications -- so long as the government surveillance is "directed at" someone the government "reasonably believe[s]" to be outside the United States. Indeed, in an August 6 article, The New York Times quoted White House spokesman Tony Fratto as acknowledging, in the Times' words, that "the new law went beyond fixing the foreign-to-foreign problem, potentially allowing the government to listen to Americans calling overseas."

Krauthammer made his statements during the Special Report "All-Star Panel" segment. Asked by guest host Bret Baier about the recently passed FISA amendments and the attached six-month sunset provision, Krauthammer stated that when the legislation comes up for renewal, "the Republicans will win again" on what he called "a slam-dunk issue for the president." Krauthammer then described the bill as follows: "It means that if a bad guy in Pakistan is speaking to a bad guy in London, and if the speech or the email happens to go through a router in the U.S. or computer in the U.S., under the old law you'd have to get a warrant, which is absurd." He added that the new law "fixed" this issue, and in six months, "it will be fixed again."

However, the warrantless surveillance allowed under the FISA revisions is not limited to foreign-to-foreign communications, as Krauthammer suggested. In fact, the new law categorically excludes from the warrant requirement any "surveillance directed at a person reasonably believed to be located outside of the United States." The new law requires only that, within 120 days of the law's enactment, the administration submit to the secret Foreign Intelligence Surveillance Court its "procedures" for how the government assesses that any specific eavesdropping it conducts without court approval under the new law falls into that exclusion. The court must approve those procedures unless they are "clearly erroneous."

As the August 6 New York Times article explained:

Previously, the government needed search warrants approved by a special intelligence court to eavesdrop on telephone conversations, e-mail messages and other electronic communications between individuals inside the United States and people overseas, if the government conducted the surveillance inside the United States.

Today, most international telephone conversations to and from the United States are conducted over fiber-optic cables, and the most efficient way for the government to eavesdrop on them is to latch on to giant telecommunications switches located in the United States.

By changing the legal definition of what is considered "electronic surveillance," the new law allows the government to eavesdrop on those conversations without warrants -- latching on to those giant switches -- as long as the target of the government's surveillance is "reasonably believed" to be overseas.

For example, if a person in Indianapolis calls someone in London, the National Security Agency can eavesdrop on that conversation without a warrant, as long as the N.S.A.'s target is the person in London.

Tony Fratto, a White House spokesman, said Sunday in an interview that the new law went beyond fixing the foreign-to-foreign problem, potentially allowing the government to listen to Americans calling overseas.

But he stressed that the objective of the new law is to give the government greater flexibility in focusing on foreign suspects overseas, not to go after Americans.

"It's foreign, that's the point," Mr. Fratto said. "What you want to make sure is that you are getting the foreign target."

From the August 6 edition of Fox News' Special Report with Brit Hume:

BAIER: The other thing they [Congress] did was pass a modernization of the Foreign Intelligence Surveillance Act. But it has, Charles, a six-month sunset on it, something that the White House really didn't want to see.

KRAUTHAMMER: Well, that means it will become an issue early next year, and the Republicans will win again. This is a slam-dunk issue for the president. It means if a bad guy in Pakistan is speaking to a bad guy in London, and if the speech or the email happens to go through a router in the U.S., through a computer in the U.S., under the old law you'd have to get a warrant, which is absurd.

It was never intended -- that kind of thing didn't exist in '78, when the original law was passed. And that's been fixed, and it'll be fixed again.

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