I’d agree with the observation that some objections are objections to FISA as it was (which I have done from time to time, since I think that parts of it are unconstitutional and Congress has merely set up a procedural system under which it is almost impossible to challenge some of the unconstitutional activities that thrive in its moister recesses)

But on the *collect all foreign to foreign without any national security probable cause* that they seem in their press release to be advocating (and that is something that has been advocated before) I think they do go beyond FISA. When FISA was drafted, it was in response to the Sup Ct rulings that warrantless surveillance of US citizens wasn’t Constitutional, but which used language about the fact that the Ct wasn’t taking a position on warrantless wiretaps of foreign powers and agents of foreign powers (i.e., not taking a position on whether there was any role of the judiciary in authorizing or not the actions of the Executive to spy on foreign powers and their agents). And the original definitions of “agents of foreign powers’ were drafted in that diplomacy/nation based spying contexts.

Now despite that, NSA had always pretty much taken the position that wave based communications that it could intercept without tapping per se were all up for grabs. However, as may have begun to happen under Clinton (with a Latina American intercepts program) and expanded under Bush, the moved that concept (which was based on a legal theory that wave based communications that anyone could pick up were not all that private) to all the non-wave communications too.

And so in the debate over FISA eavesdropping all kinds of references began cropping up about the Executive “already having” the “right” to engage in warrantless search and seizure of ALL overseas communications, foreign power status notwithstanding.

This isn’t all that different than the SWIFT fiasco, where the US took the position that it was ENTITLED, on a mere say so by the Exec branch and without any judicial review or oversight or Congressional review or oversight. The problem for those guys who pooh pooh “international law” is that the SWIFT organizations had that foreign financial information because they – operated in foreign countries. Which means foreign countries have some input on what they are supposed to do to protect financial privacy under those foreign countries standards.

I’m not a foreign communications law expert or even hat wearing novice, but in the SWIFT setting it looked as if the Administration tried to meet the obligations of foreign law by having McConnell’s Booze “audit” their process. That was specifically found to not be good enough by the European body that reviewed the thing (I think it was a privacy court?? can’t remember and wasn’t familiar with the concept) So, if I’m Canadian, or German, or French, etc. and a multinational telecom is operating in my country and is maybe providing services to me, I’m going to be wondering a bit about what my Canadian or German or French government is going to say about the Americans passing a LAW that says my telecom is supposed to turn over all my communications with my friends and family and employer to them – even though there is no reason to believe that I am involved in terrorism or serving as an agent of government. If I’m a business, I’m even more concerned that an unlimited, “unfettered” group of Exec branch employees can run amok collecting confidential business communications – or even just setting up major identity theft programs on the side (since when you run a department meant to violate human rights and civil liberties – surprise surprise, now and then you hire criminally oriented people).

I have to scratch my head over both a) the concept that somehow in our limited grant of governing powers in the US Constitution we authorized the use of government powers to engage in mass surveillance of all the peoples of the world and b) that Congress is going to statutorily require telecoms to hand over all foreign to foreign communications without regard to national privacy laws of the countries in which those telecoms are operating. IIRC, the basic approach in the SWIFT review were laws that authorized hand over of a financial communications internationally IF there was a judicial order from the courts of the requesting country. Booze and ‘berto weren’t deemed to meet those requirements of being a court.

And in this country, under out constitution, warrants are only supposed to issue from the courts based on criminal probable cause. That’s why old FISA pretty much backed the FISA court out of review of warrantless surveillance by the Executive branch on foreign powers – that was deemed to be something the Exec was doing within its separate powers to defend national security and engage in foreign diplomacy. Our courts don’t really, under the Constitution, have the ability to direct or have oversight over foreign diplomacy and foreign powers interactions. So we couldn’t Constitutionally have a court issuing warrants for “all foreign to foreign” communications, on an unfettered basis.

That’s why under old FISA what were supposed to be the carve out of solely foreign power to foreign power (or agents thereof) communications were done – not through FISCt – through an AG only request. And Congress supposedly exercised oversight by requiring reports from the AG on those warrantless activities. Reports – with no consequences to the AG for fibs and ommissions. There’s oversight for you.

So now the carve out of AG only authorized (and not AG even, but all kinds of underlings and not even confined to the DOJ as originators) intercepts is going to go from foreign power to foreign power; to “everybody and everything, unless we know for a fact that one part of the communication involves a US citizen in the US, and even then it’s ok and the AG can figure out what to do with those intercepts” That doesn’t just leave me cold on the US/Constitutional front, it makes me wonder why no one even mentions the legal duties or constraints of telecoms in foreign countries. I cannot believe that there are none.

OT: I’m off to read Jason Leopold’s latest: Judge rules defense to get Abu Zubaydah’s diary of torture.