More on the legality of the NSA program

Yesterday we received a message responding to John’s analysis of the legality of the NSA program. Our correspondent has asked us to withhold identifying information and we have agreed to do so. He is a gentleman who has had occasion to focus on the issues for professional reasons and adds a close analysis of pertinent provisions of FISA to the probable facts in support of John’s conclusion:

I appreciated your fine analysis of the legality of the NSA surveillance program (“On the Legality of the NSA Electronic Intercept Program”). I assume that you may be writing on this matter again. In that event you may wish to put some stress on the FISA definition of “Electronic surveillance,” especially that portion that states that electronic surveillance–for purposes of FISA–involves

“(1) the acquisition … of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes…”

If you reflect for a moment on the practicalities of the NSA program it should be obvious that NSA does not begin by targeting any “particular, known United States person.” Rather, the initial targets of the program are almost certainly overseas al Qaeda operatives, often–perhaps usually–unknown or not fully identified.

Undoubtedly NSA vacuums up enormous amounts of communications traffic outside the US in a fairly indiscriminate manner and then analyzes it with powerful software (think Able Danger) for relevance and for more directed targeting. By targeting those non-USPER operatives NSA may learn the identities of al Qaeda operatives within the US. Those operatives within the US may or may not be USPERS–citizens or resident aliens who acquired their status without fraud (for example, not by lying about their hostile intent toward the US) qualify, but no other categories of persons within the US qualify.

If the operatives that are discovered within the US turn out to be non-USPERS, then NSA can continue surveilling them when they communicate with persons outside the US. If, by further investigation, it is determined that the surveillance has identified USPERS within the US and that it is desirable to “intentionally” target those USPERS within the US, then of course FISA comes into play–usually through or at the instigation of the FBI, our primary Counterterrorism and Counterintelligence agency. It seems to me that something like this would be the overwhelmingly most likely scenario, and that the authors of FISA recognized and allowed for this type of situation–while not necessarily foreseeing the specific circumstances of the GWOT.

One factor that must be remembered is that in the circumstances of anti-terror work the mere identification of a phone number or email account within the US–even with names attached–cannot be assumed to be a positive identification of the true identity of the persons connected to the numbers or accounts. This factor would certainly come into play in the situation where US forces acquire such information overseas under circumstances in which they may not know whether the persons connected to the phones or accounts are truly terrorist operatives or support personnel.

It seems to me that it would be quite legitimate for NSA to target attempts by persons outside the US to contact those numbers or accounts within the US in order to develop further information that might demonstrate the relevance to anti-terrorist work of the persons who are connected to those numbers or accounts. Only when it becomes desirable to specifically target known, particular USPERS within the US should FISA come into play.

Can the information that NSA gathers without a warrant be used as probable cause for purposes of later obtaining a FISA warrant directed at an USPER within the US? Since the NSA program is completely legal and the information was not acquired by targeting known USPERS who came under FISA, there should be no reason whatever to exclude such information. The only concern in such a situation should be to protect the source and the technique.

Our correspondent adds an update based on the release of the Department of Justice letter yesterday afternoon:

I note that the Justice Department, in its letter to the various Intelligence Committees and to Congress, appears to raise a similar line of reasoning: “Communications intelligence targeted at the enemy is a fundamental incident of the use of military force.”

Justice raises this issue in the context of the President’s authority to use military force, but it is certainly no accident that the letter explicitly notes that the NSA program is targeting “the enemy.” While not as artfully phrased as one might wish–“enemy” is an imprecise term–it certainly appears that Justice is implicitly asserting that NSA did not intentionally target particular, known USPERS. That is an important part of the Administration’s justification.

The emphases in the message and the update are all added by our correspondent.

PAUL adds: This is an excellent analysis of 50 U.S.C. 1801(f)(1). If the activity at issue constitutes surveillance under FISA, it more plausibly does so under section (f)(2), which encompasses

the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States. . . .

But the NSA intercepts avoid this prong to the extent that the acquisition of the wire communication can be said to occur outside the U.S.

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