The House of Representatives voted by a wide margin on Wednesday to reauthorize the FISA Amendments Act (FAA) for another five year term, despite some vigorous bipartisan opposition. But the supporters of sweeping electronic surveillance authority often seemed confused about what, exactly, the law authorizes—and about the causes of the intelligence failures that allowed the terror attacks of 9/11 to succeed.
The most common refrain from FAA supporters was that the law only concerned surveillance targeting “foreigners in foreign lands”—meaning it could not possibly affect the rights of Americans. Rep. Trey Gowdy (R‑SC), in an impressive display of lung power, delivered a five minute floor shout to this effect. “This bill has nothing to do with Americans on American soil,” Gowdy thundered, “This bill doesn’t implicate the Bill of Rights, any more than it implicates any other part of our Constitution, unless you think that foreign nationals who are on foreign land fall within the protections of the United States Constitution.” But Gowdy has to know that this is false, because the secretive Foreign Intelligence Surveillance Court has already ruled on at least one occasion that surveillance authorized by the FAA did violate the Fourth Amendment’s prohibition on “unreasonable searches and seizures.”
It did not rule this way, of course, because foreigners on foreign soil have Fourth Amendment rights, but because the FAA authorizes large scale surveillance of Americans’ communications. Supporters of the act suggested again and again that this can’t be true, because the law requires NSA surveillance programs to have a foreign “target.” But this is based on a misunderstanding of what “target” means in FISA. As former Deputy Attorney General David Kris explains at length in his book on the law, the “target” of a surveillance program under FAA is typically just the foreign group—such as Al Qaeda or Wikileaks—that the government is seeking information about. The FISA court approves general procedures for surveillance, but it’s NSA agents who decide which particular phone lines and e‑mail accounts will be wiretapped, and there is no explicit requirement that these particular phones and e‑mail addresses be foreign—only the program’s overall target. And of course, there is something historically very strange about imagining that surveillance can only violate the rights of named targets: The Founders abhorred “general warrants,” which they passed the Fourth Amendment to abolish, precisely because these warrants authorized searches of people and homes who were not specifically named targets, exactly as the FAA does.