In a report on the congressional debate over revisions to the 1978 FISA law , Fox News' Jim Angle reported that, “since about 80 percent of the world's Internet traffic passes through U.S. communications infrastructure, officials now find themselves in a bizarre situation, forced to treat foreigners overseas as if they were Americans inside the United States.” But, in August, Congress passed the Protect America Act that temporarily revised FISA to allow the warrantless surveillance of these communications -- while also temporarily expanding the president's authority to wiretap without a warrant.
On the December 14 edition of Fox News' Special Report, while discussing the congressional debate over revisions to the Foreign Intelligence Surveillance Act of 1978 (FISA), Fox News chief Washington correspondent Jim Angle reported that, "[f]or years," the current FISA “worked fine” in providing oversight for the government's international intelligence activities, "[b]ut then came the Internet, and email, and other communications that travel on modern wires, fiber-optic cables." Angle continued: "[S]ince about 80 percent of the world's Internet traffic passes through U.S. communications infrastructure, officials now find themselves in a bizarre situation, forced to treat foreigners overseas as if they were Americans inside the United States." Angle then aired a clip of his interview with Ken Wainstein, assistant attorney general for National Security at the Department of Justice, in which he elaborated on the purported “bizarre situation” currently faced by intelligence officials: “We have to go to the FISA court to get their permission to tap into a communication between two foreign terrorists ... both of whom might be overseas, simply because that communication is routed through the United States.” In fact, intelligence officials are not currently “forced” to obtain FISA warrants before eavesdropping on foreign-to-foreign communications that pass through U.S. infrastructure, as Angle's report asserted. In August, Congress passed the Protect America Act (PAA), which temporarily revised FISA to allow the warrantless surveillance of these communications -- while also temporarily expanding the president's authority to wiretap without a warrant over the objection of many congressional Democrats.
House Democrats have since passed legislation to make permanent the right of the president to eavesdrop on foreign-to-foreign communications without a warrant, while scaling back the far-reaching powers in the PAA.
In an August 12 Washington Post article -- "How the Fight for Vast New Spying Powers Was Won" -- staff writers Joby Warrick and Walter Pincus reported on the developments that led Congress to consider legislation to remove the warrant requirement for foreign-to-foreign communications passing through the United States:
What [Director of National Intelligence Mike] McConnell wanted most from Congress was to be able to intercept, without a warrant, purely foreign-to-foreign communications that pass through fiber-optic cables and switching stations on U.S. soil. That provision was meant to restore a U.S. capability that existed three decades ago, when a 1978 law allowed warrantless surveillance of foreign calls that were overwhelmingly relayed wirelessly.
Since then, advances in technology have caused 90 percent of global communications to pass through wires -- mostly optic fibers capable of carrying 6,000 calls in a strand. That development has been a boon to the National Security Agency, which has worked hard to monitor the traffic with U.S.-based taps and concluded it was doing so legally.
But in a secret ruling in March, a judge on a special court empowered to review the government's electronic snooping challenged for the first time the government's ability to collect data from such wires even when they came from foreign terrorist targets. In May, a judge on the same court went further, telling the administration flatly that the law's wording required the government to get a warrant whenever a fixed wire is involved.
The decisions had the immediate practical effect of forcing the NSA to laboriously ask judges on the Foreign Intelligence Surveillance Court each time it wanted to capture such foreign communications from a wire or fiber on U.S. soil, a task so time-consuming that a backlog developed.
An August 11 New York Times article described the subsequent negotiations between congressional Democrats and the Bush administration over amendments to FISA:
Congressional Democrats effectively agreed to try to forge a narrow bill to address the foreign problem that Mr. McConnell identified. But they were at odds over a critical detail, the court oversight.
Democratic leaders did not demand that the security agency seek individual court warrants for eavesdropping. But they did want the court to review and approve the agency procedures soon after surveillance began.
The administration, however, wanted the attorney general and the director of national intelligence to approve the surveillance, with the court weighing in just to certify that no abuses occurred, and only long after the surveillance had been conducted.
The talks intensified in the days before the recess last weekend, highlighted by proposals and counterproposals in calls between Mr. McConnell and the Democratic leadership.
By Aug. 2, the two sides seemed relatively close to a deal. Mr. McConnell had agreed to some increased role for the secret court, a step that the administration considered a major concession, the White House and Congressional leaders said.
But that night, the talks broke down. With time running out, the Senate approved a Republican bill that omitted the stronger court oversight. The next day, the House passed the bill.
The bill passed by Congress -- the PAA, which is set to expire in February 2008 -- provided for the extension of the executive branch's authority to intercept foreign-to-foreign calls without a warrant. However, as reported in an August 6 New York Times article, the bill also, in effect, authorized the monitoring of domestic-to-foreign communications without a warrant, “as long as the target of the government's surveillance is 'reasonably believed' to be overseas.” As the Times reported, McConnell's version of the bill “broadly expanded the government's authority to eavesdrop on the international telephone calls and e-mail messages of American citizens without warrants.”
In October, the House passed the RESTORE Act of 2007. The bill maintained warrantless eavesdropping of foreign-to-foreign communications that pass through U.S. infrastructure, but also ensured that the government be subjected to meaningful court oversight in conducting such surveillance. The bill, sponsored by House Judiciary Committee chairman John Conyers (D-MI), 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 or acquired in the United States. The House bill passed the House Intelligence Committee on October 10 by a party-line vote of 12-7. It also passed the House Judiciary Committee the same day by a party-line vote of 20-14.
This is not the first instance in which the media, including Angle, have advanced falsehoods about FISA and recent updates to the law, as Media Matters for America has documented (here, here, and here). Media Matters has, on several instances, also documented media outlets reporting without challenge Republican allegations that critics of the president oppose eavesdropping on terrorists, or have asserted so themselves.
From the December 14 edition of Special Report with Brit Hume:
ANGLE: Next week brings yet another debate in Congress over how to intercept communications of terrorists while protecting innocent Americans. In an exclusive interview, the top national security official at the Justice Department was asked about allegations the administration engages in what critics call “warrantless domestic surveillance.”
WAINSTEIN: The Constitution applies inside the United States, all the civil liberties and privacy protections apply within the United States, and that's as it should be. And FISA applies in the United States.
ANGLE: FISA is the 1970s law that set out the rules for wiretapping. Officials insist the administration has not and does not target people inside the United States without court approval. The FISA law also made it clear that communication intercepts overseas do not require warrants, meaning “warrantless” does not necessarily mean “illegal.”
WAINSTEIN: FISA was intended not to require a warrant when we are targeting persons outside the United States for surveillance.
ANGLE: For years, that worked fine, but the way the law was written, it required warrants for anything on a wire, like the phones we used in the 1970s. But then came the Internet, and email, and other communications that travel on modern wires, fiber-optic cables. And since about 80 percent of the world's Internet traffic passes through U.S. communications infrastructure, officials now find themselves in a bizarre situation, forced to treat foreigners overseas as if they were Americans inside the United States.
WAINSTEIN: We have to go to the FISA court to get their permission to tap into a communication between two foreign terrorists, who -- both of whom might be overseas, simply because that communication is routed through the United States.
ANGLE: Officials say the vast majority of terrorist communications take place entirely overseas, but they're most worried about calls to the U.S.
WAINSTEIN: That might be the one where the foreign terrorist is connecting with his counterpart in the United States to give him or her operational orders.
ANGLE: But what if the terrorist is calling a sick relative, or some other innocent person? The law also provides a way to deal with that.
WAINSTEIN: Minimization procedures apply both in the criminal context as well as the foreign intelligence context.
ANGLE: Minimization means protecting innocent people who are not the targets of surveillance. In this wiretap of mob figures John Gotti and [Salvatore] “Sammy the Bull” Gravano, for instance, they're talking about someone who's going to be killed.
UNIDENTIFIED MALE [audio clip]: That's their f***ing crew. And he's gotta get whacked, because he's getting the same -- for the same reason that Jelly Belly's getting it.
ANGLE: But if Gotti had called his mother or a pizza parlor, that information would be separated out, as would be any calls from suspected terrorists to innocent Americans.
WAINSTEIN: So that U.S. persons, their reputations aren't harmed.
ANGLE: Nevertheless, critics such as the ACLU call it the administration's “domestic spying program.” Although some in Congress remain suspicious, those lawmakers who know the most about it are also the most supportive.
The next round in the debate begins on Monday. In Washington, Jim Angle, Fox News.