The Terrorist Surveillance Program, Explained

The Department of Justice has responded to a long series of questions by Republican and Democratic legislators; a liberal site called Raw Story has put up the documents, and A. J. Strata has spent a lot of time reviewing and analyzing them. A. J. thinks there are a lot of “bombshells;” I’m not sure I agree, but his analysis is interesting.

There is a fair amount of discussion about the legality of the NSA’s terrorist surveillance program, a subject which we’ve written about exhaustively. As I’ve said many times, the program’s legality is not in doubt.

A few points were definitely interesting. We’ve noted before that FISA has a specific and complicated definition of the “electronic surveillance” to which it applies, and it is not clear whether the NSA program falls within that definition or not. It still isn’t clear:

Question 12 asks how the NSA TSP relates to FISA. One intriguing tidbit is this:

Before answering this question, we note that the Department’s legal analysis assumes, solely for purposes of that analysis, that the targeted interception of international communications authorized under the Terrorist Surveillance Program would constitute “electronic surveillance” as defined by FISA. As noted in our January 19th paper, we cannot confirm whether that is actually the case without disclosing sensitive classified information.

My guess is that FISA is technologically obsolete, in ways that may relate closely to the reasons why the program is effective against the terrorists, even though they are generally aware of the fact that phone calls can be intercepted.

DOJ’s answers include explanations of several reasons why it is important, in some instances, not to go through the FISA process. This one was interesting:

Great care must be exercised in reviewing requests for emergency surveillance because of the risks involved. Among other things, if the Attorney General authorizes emergency surveillance and the FISA court later declines to permit surveillance, there is a risk that the court would disclose the surveillance to U.S. persons whose communications were intercepted, …

I don’t recall any such provision in FISA; does this mean that the risk arises from the conduct of rogue judges, or is there another explanation? I don’t know. [See Update.]

We’ll be interested to hear from others who have examined DOJ’s responses in detail and have further comments.

UPDATE: Reader Mark Wauck identified the relevant portion of FISA, Section 1806:

Section 1806

(j) Notification of emergency employment of electronic surveillance; contents; postponement, suspension or elimination

If an emergency employment of electronic surveillance is authorized under section 1805 (e) [1] of this title and a subsequent order approving the surveillance is not obtained, the judge shall cause to be served on any United States person named in the application and on such other United States persons subject to electronic surveillance as the judge may determine in his discretion it is in the interest of justice to serve, notice of—

(1) the fact of the application;
(2) the period of the surveillance; and
(3) the fact that during the period information was or was not obtained.

On an ex parte showing of good cause to the judge the serving of the notice required by this subsection may be postponed or suspended for a period not to exceed ninety days. Thereafter, on a further ex parte showing of good cause, the court shall forego ordering the serving of the notice required under this subsection.