October 19, 2007

The Adam Gadahn Amendment

The Senate Intelligence Committee passed the latest version of FISA on a 13-2 vote after reaching a compromise with Republicans on amnesty for telecoms and other issues. However, a last-minute amendment adopted by the committee has the White House objecting:

The Senate intelligence committee yesterday produced a new bipartisan bill governing foreign intelligence surveillance conducted inside the United States, but objections by several Democratic lawmakers to some of its provisions raised questions about how quickly it might gain passage.

The bill, approved by the committee 13 to 2, would require a special surveillance court to approve the government's procedures for deciding who is to be the subject of warrantless surveillance. It also would impose more restrictions on the government than contained in an emergency six-month law passed in August, which the Bush administration wanted to make permanent.

It would further give some telecommunications companies immunity from about 40 pending lawsuits that charge them with violating Americans' privacy and constitutional rights by aiding a Bush administration's warrantless surveillance program instituted after September 2001. That provision is a key concession to the administration and companies, which lobbied heavily for the provision.

Senate intelligence Chairman John D. Rockefeller IV (D-W.Va.) and ranking Republican Christopher S. Bond (Mo.) said the bill allows for necessary intelligence collection while maintaining privacy protections for Americans.

An amendment by Sen. Ron Wyden (D-Ore.), who opposed the bill for its inclusion of telecom immunity, requires the government to obtain a warrant when targeting an American overseas for surveillance.

This puts the NSA in the position of having to obtain a warrant to tap Adam Gadahn's communications. Also known as "Azzam the American", Gadahn is a rather notorious traitor who joined al-Qaeda and now produces videotaped messages demanding American surrender to the Islamists. Under the Wyden amendment, the NSA could not obtain communications from Gadahn without first seeking a warrant for the wiretap, even though Gadahn is not in the United States and has actively joined our enemies.

Getting a warrant for Gadahn would not be too difficult, of course. However, the NSA would have a difficult time determining the nationality of any party to a communication intercepted in a foreign-to-foreign contact. FISA originally sought to protect US "persons" (legal residents) when residing in the US. The NSA may have few methods of determining nationality until after listening to the taps, perhaps for quite a long time. The only method available immediately would be to check the ownership of the phone line or cell phone, and terrorists could simply start registering their services as Americans to force the NSA into obtaining warrants as a precaution -- with the delays that entails.

The bill will likely get held up even before the White House gets an opportunity to shoot it down. Chris Dodd objects to the telecom immunity built into this bill and has pledged to put a hold on it when it hits the floor. That will force the Senate to spend a few days on procedural maneuvers to get a vote on the bill, but there seems to be little doubt that it will now pass. The margin on the Intel committee alone will carry it to a majority.


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