On the October 10 edition of Fox News' Special Report with Brit Hume, Fox News chief Washington correspondent Jim Angle falsely claimed that proposed revisions to the Foreign Intelligence Surveillance Act (FISA), which the House Judiciary Committee passed on October 10, would, for the first time, require the federal government to obtain a court order to intercept the communications of terrorism suspects abroad when they call the United States. Angle asserted that "even requiring warrants for terrorists calling the U.S. from abroad is a major departure, something the law has never required since it was passed some 30 years ago." In fact, with few exceptions, FISA, as originally enacted in 1978, required the government to obtain a court order to conduct "electronic surveillance," which FISA defines in part as "the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States." It was only in August that Congress passed the Protect America Act (PAA), which categorically excludes from FISA's definition of "electronic surveillance" any "surveillance directed at a person reasonably believed to be located outside of the United States." The PAA is set to expire in February of 2008.
David Kris, an associate deputy attorney general from 2001-2003 whose "portfolio include[d] national security policy and FISA," noted in a May 2007 letter to the Senate Judiciary Committee that the interception of a landline telephone call between a person abroad and a person in the United States, regardless of whether either of them was the target of the surveillance, would be "electronic surveillance" under FISA if the interception occurred in the United States and would therefore require a court order in most circumstances. Discussing the application of FISA's "electronic surveillance" definition to a hypothetical landline call between two people, A and B, Kris wrote that "[i]t is ... 'electronic surveillance' under [then-]current Subsection (2) [of FISA's definition of "electronic surveillance"] if the contents of the call are acquired from a wire (not a radio signal), whether or not the government is targeting either A or B (or anyone else), as long as at least one of them is in the United States, the acquisition of the content occurs in the United States, and neither A nor B consents."
Angle also asserted that under the proposed FISA revisions, the government would need to obtain a separate court order to eavesdrop on each overseas terrorism suspect because they could call someone inside the United States. Angle reported that "Democrats want to replace the current law with one that would require the NSA to obtain warrants on foreign terrorists if they call someone in the U.S., which Republicans on the Intelligence Committee say is impossible." He then aired a clip of Rep. Heather Wilson (R-NM) saying: "If I'm targeting you, I don't know who you're going to call next. Are you are going to call an American next? Are you going to call someone in the U.K. next? And I need a warrant for everybody because I don't know who you're going to call next." Angle then asserted that this "[m]ean[s] thousands of court orders would be needed for almost everyone the U.S. wants to intercept, even if they're all foreigners, on the chance some would call the U.S."
During the Special Report "All-Star Panel" segment, Weekly Standard executive editor Fred Barnes similarly asserted that the bill "would require for the first time terrorists making calls or sending emails or working on the Internet from overseas, that you would need a warrant if they contacted an American. Well, the problem is, as Heather Wilson, the congresswoman from New Mexico said, 'You don't know when they're going to call Americans or not.' " Host Brit Hume then said, "So, yeah, if you're eavesdropping on somebody and they pick up the phone, you don't know who they're going to call." Barnes replied, "Sure. So you'd have to have a warrant on them -- on these terrorists from overseas, period, because you wouldn't know when they're going to call an American."
In fact, Section 105B of the bill approved by the House Judiciary Committee would allow the government to apply for a single "blanket warrant" that would authorize the government for one year to "acquire the communications" of any person the government reasonably believed to be a non-"U.S. person" (citizens and permanent residents) outside the United States. From the bill:
''SEC. 105B. (a) IN GENERAL.--Notwithstanding any other provision of this Act, the Director of National Intelligence and the Attorney General may jointly apply to a judge of the court established under section 103(a) for an ex parte order, or the extension of an order, authorizing for a period of up to one year the acquisition of communications of persons that are reasonably believed to be located outside the United States and not United States persons for the purpose of collecting foreign intelligence information (as defined in paragraph (1) or (2)(A) of section 101(e) [of FISA]) by targeting those persons.
On October 10, the committee amended the bill to also require that government submit to the FISA court "a description of ... the guidelines" it will use to "ensure" that the government applies for an individualized court order "when a significant purpose of an acquisition [under the "blanket warrant"] is to acquire the communications of a specific person reasonably believed to be located in the United States." The author of that amendment, Rep. Sheila Jackson-Lee (D-TX), explained in a statement to the committee:
I hasten to add, Mr. Chairman, that neither the bill nor our amendment requires the Government to obtain a FISA order for every overseas target on the off chance that they might pick up a call into or from the United States. Rather, the bill requires, as our amendment makes clear, a FISA order only where there is a particular, known person in the United States at the other end of the foreign target's calls in whom the Government has a significant interest such that a significant purpose of the surveillance has become to acquire that person's communications.
While Angle noted that the bill "would allow blanket warrants that last a year," he did not describe what they would authorize or attempt to reconcile that fact with Wilson's assertion that "[i]f I'm targeting you, I don't know who you're going to call next. Are you are going to call an American next? Are you going to call someone in the U.K. next? And I need a warrant for everybody because I don't know who you're going to call next."
