Patrick, your sense that our filters “suck” brings up a really important question: How good is good enough? Let’s say the filters end up with actual terrorist cells one time in 1,000. Is that good enough? Let’s say NSA employees end up listening to thousands of foreign-to-foreign calls that are entirely innocent. Is that a problem?
I think it depends entirely on your policy preferences. Some people think the threat of terrorism is low and the threat of civil liberties abuses is high. Other people think the threat of terrorism is great and the threat of civil liberties abuses is low. Given all these uncertainties about what the Protect America Act does and how the filters are set, it’s not surprising that reactions depend on where we each fall on the privacy/security spectrum.
David asks whether the Protect America Act would let the government wiretap e-mail and telephone accounts of people in the United States. I think the answer is no and that the administration has been pretty clear on it: Director of National Intelligence Mike McConnell said this in El Paso, Texas, and a “senior White House official”—yep, that’s what I have to call him—told me the same thing.
But our uncertainty is an important story itself. Most statutes are regularly interpreted by judges, and open questions about what the law means become settled in their opinions. A law may start out vague, but it will become clearer in time as the case law piles up.
This doesn’t happen in foreign-intelligence surveillance law because legal challenges are rare. The surveillance is, well, secret.
So, how do we know what a new surveillance law means? Now, I’m no fan of relying on legislative history. I think the law is the text, and we should follow what the text says. But when text is hopelessly unclear and no cases construe it, a careful Senate or House report can shed a lot of light. That’s true with laws like the original 1978 FISA statute; the reports are extensive. If you want to know what the original law means, the legislative history is your new best friend.
But good luck with the legislative history of the Protect America Act. It flew through Congress in just a few days. There were no hearings, and there are no reports. When it comes to the lawyerly art of interpretation, pretty much all we have to go on is the raw text and McConnell’s interview with the El Paso Times.
That’s why we can play “guess the surveillance program” all day. But it probably won’t get us any closer to knowing what’s really happening.
Marty, I’m puzzled by your argument that the Protect America Act “goes to the opposite extreme” because “there’s no requirement that the surveillance have anything to do with terrorism.” That strikes me as strange. It’s true that there’s no such requirement. But there has never been such a requirement. The original FISA statute let the NSA put up listening posts and capture international phone calls all day long with zero judicial oversight. And there was no requirement of a connection to terrorism, either. Given that, I don’t know how the current law is any more “extreme” than the original FISA statute that you seem to applaud.
