Background Briefing by Senior Administration Officials on FISA

Business Wire, Feb 26, 2008

WASHINGTON -- James S. Brady Press Briefing Room

2:40 P.M. EST

SENIOR ADMINISTRATION OFFICIAL: I appreciate you taking the time to discuss this issue with you. I just want to give a very brief overview. I know this is a very complex subject and a lot of discussion out there, and it's hard sometimes to follow it.

Let me start. Foreign Intelligence Surveillance Act of 1978 passed because of the abuses of the 1960s, 1970s, and frankly, prior to even that time frame. There was a balance struck in the 1978 act for the intelligence community, and it said, if you're doing your foreign intelligence mission overseas, you do not need a court order to do that mission. It specifically exempted the international signals intelligence activities that our community does.

Q You mean it said you could break the law?

SENIOR ADMINISTRATION OFFICIAL: No. What the law said was that if you are doing your foreign intelligence mission, looking at communications abroad, you do not need a court order. That is what the law said. Okay? And --

Q -- by Congress?

SENIOR ADMINISTRATION OFFICIAL: Okay, that's what the Foreign Intelligence Surveillance Act of 1978 did, and that is what the legislative history specifically says, and that's what the Foreign Intelligence Surveillance Act says. I can get you the actual text. We can furnish that to you. I mean, it's plain as day. I could pull up the quote right now that says this law specifically exempts the international signals intelligence activities conducted by the National Security Agency.

What it said, though, is if you're doing your mission here in the United States you need a court order. So if you're targeting a U.S. person here in the United States, to intercept their communications you need to get a court order. That was the balance that was struck in 1978.

In 1978 -- let me divide the worlds of communications into wire and wireless -- 1978, wireless communication; radio and satellite, primarily for our international communications system. Fast-forward to today -- 90 percent I think, or so of the international communications systems carried in a glass pipe; a wire, for purposes of FISA. So we've had a huge shift from what was radio and satellite in 1978 now to wire, to fiber optics -- a huge, massive shift. The international communications system is also routed through the United States in many cases. Extraordinarily cheap to use this fiber optic system, a large price advantage over other types of wireless communication.

What caught us -- what got us caught up was, in 1978, when they did the law, when they thought of wire, they thought of privacy, and if you're on the wire that is what they use to define when we would need to get a court order, exempting this international activity by exempting out the radio and satellite communications mission that we do.

So we had this shift. I think in this debate, I think everyone has agreed now that FISA needs to be modernized to reflect the technologies of today; that they wrote FISA in 1978 to reflect the way the technology was then. I think everyone is basically on board with the fact that we need to have FISA modernized.

That brings us to the Protect America Act and the passage of the Protect America Act. The Protect America Act said, if you are targeting a foreigner overseas, you do not need a court order. But it went one step further than what was even in the 1978 act. It said, for your targeting procedures, to intercept that foreign communication you need to have those procedures submitted to the FISA court and approved by the FISA court. In 1978, our mission to target international communications, the FISA court had no role in that.

We did submit those targeting procedures in August. The FISA court approved those in January of this year.

Obviously, lots of concerns about some of the language of the Protect America Act. For the past six months, we worked very closely with the Senate on their bill. That bill responds to a lot of concerns raised by the public and by members. It expands the role of the FISA court even more in the foreign targeting procedures. Not only does it say that these foreign procedures -- that the procedures that we're going to use to target foreign people overseas have to go to the FISA court, but now the documents signed by the Attorney General and DNI that authorized this acquisition activity have to go to the FISA court. And in addition, something called "minimization procedures" are now going to have to be approved by the FISA court. None of this was part of the balance struck in 1978.

Let me pause and talk one minute about this word "minimization" that you've heard. Somebody is going to ask me the question: But when you're targeting a foreigner, don't you get a U.S. person sometimes? And the answer is, yes. And the answer is, for many decades we have encountered information to, from, or about a U.S. person when we're doing our overseas foreign intelligence mission. The way we deal with that is a process called "minimization." That's a whole separate briefing that Dana probably does not want me to give, but what that basically means is that we minimize the information concerning the U.S. person. And there's elaborate procedures that are a part of that.