Monday, July 14, 2008


I finally found out what the almost-never stated provisions of FISA are:

1. Wiretapping of American citizens within the US requires a warrant.

2. Wiretapping foreign nationals in foreign countries does not require a warrant. This is true even if the foreign national overseas is conversing with an American in the US.

I'm not sure about foreign nationals inside the US or US citizens in foreign nations.

Leaving aside abuse, for the moment, here are the questions: Is today's FISA the right balance between fighting al Qaeda and the privacy rights guaranteed in the Constitution? If not, what is the right balance? And finally, can reasonable people disagree on the last two questions?

My answers: Probably not. I don't know (1). Yes.

Here's the presidential question: fixing FISA will require public pressure. Is this more likely to succeed with an Obama administration or a McCain administration? (hint: starts with an O)

(1) Here's a case to consider: we know al Qaeda has bases in northern Pakistan. Technically, we could monitor all the communications out of that region (or at least those passing through the US), and send them through computers looking for key words. When the computers find something suspicious, they could pass the communication to a human for analysis. This would be enormously useful, and is probably being done as we speak.

However, it's impossible to get probable cause for an entire region of the Earth, so warrants in the current legal framework don't work. How do we craft a law that allows us to go after al Qaeda in this or similar ways and that also passes Constitutional muster?

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