Rotenberg on AG and FISA

[Dave Farber <dave () farber net>]

-------- Original Message --------
Subject:        Re: [EPIC_IDOF] Who Said This?
Date:   Mon, 06 Feb 2006 17:38:35 -0500
From:   Marc Rotenberg <rotenberg () epic org>
To:     EPIC_IDOF () mailman epic org
References:     <C00D090A.4B0D0%simons () acm org>



I am amazed by some of the things that the Attorney General is saying.
The FISA is a complex statute but there are provisions that are
straightforward and not subject to serious dispute. Gonzalez said at one
point that he did not think the 72 hr provision was workable because it
would require the government to tip off Al Queda. Let me unpack the AG's
statement and explain why it is wrong.

The FISA has provisions for the Attorney General to issue "Emergency
Orders" and then go back to the FISA court for approval within 72 hours.
This mirrors the legal concept of "exigency" which recognizes that
police must often search or arrest without judicial approval if there is
concern about destruction of evidence or the flight of a suspect. The
key is that there must still be some means of judicial oversight to
ensure that the search was valid.

There are two emergency order provisions in the FISA, one for electronic
searches and a second for physical searches.

What happens if the AG issues the order and the FISA court subsequently
decides he lacked probable cause for the search? First, the government
is not allowed to use the evidence obtained in a criminal prosecution.
That makes sense since the use of unlawfully obtained evidence in a
criminal trial would be a clear  violation of the Fourth Amendment.

But what about the notice requirement that typically accompanies both
physical searches and electronic searches by the government? Is the
government required to notify a possible target when the AG certifies
that a search should go forward under the "Emergency Orders" provision
and the FISA court subsequently says that the search was not  
permissible?

Here is what the FISA says:

>     (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.

Looks like the AG could be right. Maybe Al Queda would be tipped off.
But that is not end of the provision. It goes on to say that the  
government
can delay notice  for 90-day with "good cause", and then -- and this is
an amazing provision -- the court can, on the same standard in
which it granted the original delay, effectively allow the government
to forego any notice.

>     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.

Knowing the history of the FISA court's approval rate for FISA warrants,
it is impossible to imagine that the AG is not able to get the court  
to prevent
permanently notice to the target of FISA surveillance *even when the AG
lacked the authority to permit the search.* More disturbing is the high
likelihood that many Americans with no connection to Al Queda have
been the subject of FISA surveillance and have never been notified.

Marc.



On Feb 6, 2006, at 5:09 PM, Barbara Simons wrote:

> No, Feingold's comment was made later, when he was beginning his  
> questioning
> of Gonzales.  I'm not sure if it was the first or second round  
> questioning.
>
> I can say this with some authority, because the broadcast is being  
> time
> delayed for the West Coast, and I had already read Bruce's posting  
> before I
> happened to hear (I don't have time time to listen to all of the  
> testimony,
> though I wish I could) Feingold's 1776 comment.
>
> The Democrats are being really good.  I wish they would be this  
> strong on
> all of the issues, though goodness knows that this a really  
> important one
> (but so are Supreme Court appointments).
>
> Regards,
> Barbara
>
> On 2/6/06 14:00, "Bruce Schneier" <schneier () counterpane com> wrote:
>
> > At 03:18 PM 2/6/2006, rotenberg () epic org wrote:
> >
> > > I think it was Fiengold. I'll check.
> > >
> > > Interesting exchange at the beginning over the hearing
> > > over whether Gonzales needed to be sworn in. Fiengold
> > > has a good argument that the AG lied under oath about
> > > the program during the nomination hearings.
> >
> > I missed that.
> >
> > Is there a transcript.
> >
> > Schumer ripped him a new one, and I'd like to read that again.
> >
> > Bruce
> >
> > _______________________________________________
> > EPIC_IDOF mailing list
> > EPIC_IDOF () mailman epic org
> > https://mailman.epic.org/cgi-bin/mailman/listinfo/epic_idof

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