NY Post falsely reported FISA bill would “leave[] in place” “legal hurdles” purportedly impeding search for kidnapped soldiers

Written by Matt Gertz

Published

A New York Post article reported that Congress plans to vote on “a bill that leaves in place the legal hurdles in the Foreign Intelligence Surveillance Act [FISA] -- problems that were highlighted during the May search for a group of kidnapped U.S. soldiers.” Hurt suggested that the “legal hurdle” was that "[t]he FISA law applies even to a cellphone conversation between two people in Iraq, because those communications zip along wires through U.S. hubs, which is where the taps are typically applied." In fact, the bill specifically provides that “a court order is not required for the acquisition of the contents of any communication between persons that are not United States persons and are not located within the United States,” even if those communications are routed through U.S. hubs.

In an October 15 article, New York Post Washington bureau chief Charles Hurt reported that Congress plans to vote on “a bill that leaves in place the legal hurdles in the Foreign Intelligence Surveillance Act [FISA] -- problems that were highlighted during the May search for a group of kidnapped U.S. soldiers.” The article went on to assert that during this search, “searchers in Iraq waited” for more than nine hours “as U.S. lawyers discussed legal issues and hammered out the 'probable cause' necessary for the attorney general to grant such 'emergency' permission” to wiretap the kidnapping suspects. Hurt further wrote that "[t]he FISA law applies even to a cellphone conversation between two people in Iraq, because those communications zip along wires through U.S. hubs, which is where the taps are typically applied." In fact, the bill -- known as the RESTORE Act of 2007 -- specifically provides that “a court order is not required for the acquisition of the contents of any communication between persons that are not United States persons and are not located within the United States,” even if those communications are routed through U.S. hubs. A summary of the bill that the House Judiciary Committee majority staff released on October 9 stated that the bill “Clarifies that No Court Warrant is Required to Intercept Communications of Non-United States Persons When Both Ends of the Communications are Outside the United States.”

From Section 2 of the RESTORE Act:

SEC. 2. CLARIFICATION OF ELECTRONIC SURVEILLANCE OF NON-UNITED STATES PERSONS OUTSIDE THE UNITED STATES.

Section 105A of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is amended to read as follows:

“CLARIFICATION OF ELECTRONIC SURVEILLANCE OF NON-UNITED STATES PERSONS OUTSIDE THE UNITED STATES

”Sec. 105A. (a) Foreign to Foreign Communications.--Notwithstanding any other provision of this Act, a court order is not required for the acquisition of the contents of any communication between persons that are not United States persons and are not located within the United States for the purpose of collecting foreign intelligence information, without respect to whether the communication passes through the United States or the surveillance device is located within the United States.

"(b) Communications of Non-United States Persons Outside of the United States.--Notwithstanding any other provision of this Act other than subsection (a), electronic surveillance that is directed at the acquisition of the communications of a person that is reasonably believed to be located outside the United States and not a United States person for the purpose of collecting foreign intelligence information (as defined in paragraph (1) or (2)(A) of section 101(e)) by targeting that person shall be conducted pursuant to--

"(1) an order approved in accordance with section 105 or 105B; or

"(2) an emergency authorization in accordance with section 105 or 105C.".

On October 11, The New York Times reported of the RESTORE Act:

It would continue the policy of not requiring a warrant for intercepting communications between foreigners outside the United States. It would also continue the policy of requiring a warrant from the FISA court when the officials were singling out people in the United States.

But for a third category of interceptions -- bundles of communications by groups of people -- the bill would permit the attorney general and the director of national intelligence to authorize surveillance for up to one year but only with tighter supervision and closer scrutiny by the FISA court.

The bill summary released by the House Judiciary Committee states that the RESTORE Act:

1. Clarifies that No Court Warrant is Required to Intercept Communications of Non-United States Persons When Both Ends of the Communications are Outside the United States.

2. Requires an Individualized Court Warrant from the FISA Court When Targeting Persons in the United States. (Same as current law.)

3. Creates a Program of Court Authorized Targeting of Non-U.S. Persons Outside the United States. Grants the Attorney General (AG) and the Director of National Intelligence (DNI) authority to apply to the FISA Court for an order to conduct surveillance of foreign targets, or groups of targets, for up to one year -- but RESTORES the following checks and balances that were absent under the PAA:

a. Court Review of Targeting Procedures. The FISA Court must review targeting procedures to ensure that they are reasonably designed to target only people outside the United States. In emergencies, the FISA Court review may take place after the surveillance has begun -- for up to 45 days. DNI McConnell told Congress in September that he did not oppose FISA Court review of these targeting procedures.

b. Court Review of Minimization Procedures. The FISA Court must review minimization procedures. DNI McConnell told Congress in September that he did not oppose FISA Court review of these minimization procedures.

c. Court Review of Guidelines to ensure that, when the government seeks to conduct electronic surveillance of a person in the United States, the government obtains a traditional individualized warrant from the FISA Court.