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Does the FISA Bill Help Terrorists?

November 28, 2007 - by Donny Shaw

Joe Klein of Time, Glenn Greenwald of Salon and Ryan Singel of Wired been in quite a flap about whether or not the Foreign Intelligence Surveillance (FISA) Amendments Act that passed the House last week requires court approval for every foreign-terrorist target’s calls, or only those that involve communications with U.S. persons.

As has been noted since at least 1990, when George H. W. Bush attempted to win a FISA amendment similar to the current one in question, the proposed changes to the bill make for some pretty enigmatic legislating. But it’s a change that rides a fine line between two issues that American care about deeply: civil liberties and national security. So knowing exactly what the proposed changes to FISA would do is of utmost importance, especially since it has yet to be considered by the Senate.

First, here’s Klein’s claim that started the whole debate:

>The basic principle [of the Senate Intelligence committee bill] is this: if a suspicious pattern of calls from a terrorist suspect to a U.S. citizen is found, a FISA court warrant is necessary to monitor those communications. But to safeguard against civil-liberty abuses, all records of clearly nontargeted Americans who receive emails or phone calls from foreign suspects would be, in effect, erased. Unfortunately, Speaker Nancy Pelosi quashed the House Intelligence Committee’s bipartisan effort and supported a Democratic bill that — Limbaugh is salivating — would require the surveillance of every foreign-terrorist target’s calls to be approved by the FISA court, an institution founded to protect the rights of U.S. citizens only. In the lethal shorthand of political advertising, it would give terrorists the same legal protections as Americans. That is well beyond stupid.

Greenwald and Singer argue that it’s not true; that the FISA amendments bill has nothing to do with how wiretapping is conducted for targets outside of the country. In the articles of theirs linked to above, they both make strong arguments against Klein’s claim, but for the best evidence that Klein may be wrong about the bills, why not look at what the bills themselves say about the matter. They both have disclaimers that seem to say that what Klein says is false — as has always been the case, foreign-terrorist target’s calls will be wiretappable without warrant or court oversight, as long as they don’t involve people in the U.S.

From the House-passed bill:

>IN GENERAL- Notwithstanding any other provision of this Act, a court order is not required for electronic surveillance directed at the acquisition of the contents of any communication between persons that are not known to be United States persons and are reasonably believed to be located outside 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.

And from the pending Senate bill:

>Nothing in the definition of electronic surveillance under section 101(f) shall be construed to encompass surveillance that is targeted in accordance with this title at a person reasonably believed to be located outside the United States.

Anyone know how to interpret these provisions (or others in the bill) to corroborate Klein’s statements? Let us know in the comments.

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