Kerr on NSA and FISA

by on May 11, 2006

Orin Kerr has a lengthy analysis of the latest NSA spying revelations. He concludes that it doesn’t violate the Fourth Amendment but likely runs afoul of several statutes. This paragraph didn’t strike me as being quite right:

The legality of the program under FISA is somewhat similar to the legality of the NSA program we learned about a few months ago. The key question is, did the monitoring constitute “electronic surveillance” under FISA, and if so, does the Authorization to Use Military Force allow it? Note that FISA’s definition of “electronic surveillance” goes beyond accessing only content information and extends to some non-content information. If the program did involve “electronic surveillance” under FISA, then we’re right back to the same question that has been raised about the legality of the known NSA domestic surveillance program. If that’s right, your views of the legality of the new NSA program will pretty much coincide with your views of the legality of the NSA program disclosed a few months ago.

It seems to me that one of the arguments frequently deployed by the president and his supporters is that the wiretapping program only targetted calls international calls. On this theory, FISA doesn’t apply at all because FISA only governs domestic surveillance. I don’t think I buy that agument, but I can easily see someone who does concluding that the wire-tapping program is legal, but this new program is not.

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