Some Belated Answers on Electronic Surveillance

The Justice Department has released its responses to questions (pdf) originally posed by the House Judiciary Committee in 2007 about the Department’s views on the legal framework governing electronic surveillance under the amended Foreign Intelligence Surveillance Act.

In questions for the record from a September 18, 2007 hearing, House Committee members probed the potential use of electronic surveillance against U.S. persons, the exclusivity of the Foreign Intelligence Surveillance Act, the claimed scope of independent presidential authority, and the basis for mandating telecommunication carrier immunity.

“If the so-called Terrorist Surveillance Program (TSP) was perfectly legal as has been claimed, why would companies who cooperated in it need immunity?” the Committee asked.  (To protect classified information, among other reasons, the Department responded.)  “Is the President free to disregard any provisions of FISA with which he disagrees?”  (No, not exactly.)  “If an individual in the United States is suspected of working in collusion with persons outside the United States–such that an investigation of one is in effect the investigation of the other–under what circumstances, generally, would you use criminal or other FISA wiretaps?”  (Targeting of persons in the United States can only be done under FISA procedures.)

The Committee hearing volume (pdf) was published in June 2008 without the Justice Department’s answers to these questions, because they were provided to Congress too late to be included in the published record.  A copy of the answers was released last week under the Freedom of Information Act.