I have a simple, elegant proposal to fix the relationship between FISA and the NSA so as to protect people from improper surveillance and still keep an eye on terrorist activities in America.

I have a suggestion on how to adjust FISA statutes so judges cannot use personal opinion to select valid or invalid leads on terrorists. The idea came to me after reading about Sen Collins’ comments on NSA. Over and over I see indications that those briefed on the details want judicial review, but want the judges to stop using subjective ideology to select what is a real threat.

First off, everyone agrees when the a person from the US or a US citizen makes contact with a suspected terrorist and is picked up by the NSA doing so, the FISA 72 hour process is not a realistic avenue for a warrant – not given the FISC refusal to use NSA leads alone as probable cause:

The Maine Republican, chairman of the Committee on Homeland Security and Governmental Affairs, told the editorial board of the Portland Press Herald/Maine Sunday Telegram that proposals to allow eavesdropping on potential terrorists inside the United States should still require a court warrant.

The Senate is weighing a bill that would allow the administration to monitor communications for 45 days with no warrant and to get extensions of that permission in certain circumstances.

“After 45 days, you ought to be required to get a warrant,” Collins said. The review, required by the Foreign Intelligence Surveillance Act, is “a real and important check on the process,” she said.

I agree that for anyone to become the target of a full surveillance (all communications monitored) there needs to be a warrant. I disagree that anyone communicating with a suspected terrorist cannot be monitored as part of monitoring the terrorist themselves. As I have said before people are caught up in surveillances everyday in this country because they have come in contact with somebody who law enforcement has obtained permission to monitor.

So, what needs to be established is:

[1] the continued surveillance of terrorists (i.e., self proclaimed enemies of this country at war with us) remains the perview of the military generally, and the NSA for much of the electronic forms of communication and can cover anyone in the US or any US citizen who is in contact with an enemy – but only the communications with the enemy.

[2] The FISC will be directed to accept NSA leads as sufficient probable cause of a terrorist communication if a standard FBI has not found evidence to unambigously clear the person in question (i.e., turns out to be a call for reservations with a hotel front desk). This will happen within 45 days of the initial detection of the person of interest, and will allow for a warrant to survey the person of interest to gain further information on guilt or innocence. This warrant makes the person of interest a target of domestic surveillance and opens up all communications for inspection.

[3] The FISC will review the information garnered from the surveillance after another 45 day period to see if there has been a change in the person of interests status to lead the judge to believe the person is innocent. This will lead to ending the surveillance once the JUDGE identifies the evidence that leads to a determination the person is not a threat. Otherwise the surveillance continues. This puts the onus on the Judge to stop the surveillance, and opens the decision to the FISA Review Court appeal.

[4] Of course at anytime the FBI and/or DoJ can stop surveillance if they have determined that the person of interest was not a threat, unilaterally disolving the warrant. However, if the person of interest remains in contact with the terrorist(s) monitored by the NSA, those communications will still be available for monitoring.

I could see this as working because it gives the benefit of the doubt to know who is a risk to law enforcement, and totally walls off the military monitoring from any judicial meddling.