DoJ: New Surveillance Law Could be “Misconstrued”

Critics of the new Protect America Act who wonder if it will be used to conduct warrantless surveillance of Americans have misunderstood the legislation, according to a Department of Justice official, but he also admitted the law may be susceptible to such a misunderstanding.

“Contrary to some reports, the new legislation does nothing to change FISA’s prohibition against targeting a person in the United States for surveillance without a court order,” said Assistant Attorney General Kenneth L. Wainstein (pdf) at a hearing of the House Intelligence Committee last week.

At the same time, he indicated that ambiguities in the language of the law may lend themselves to just such an interpretation.

“To the extent that the statute could be construed to allow acquisitions of domestic communications, we would be willing to consider alternative language,” Mr. Wainstein said in his prepared statement (at page 10).

A copy of Mr. Wainstein’s September 6 statement is here.

The text of his oral remarks is here (pdf).

The ambiguities in the Protect America Act are far more extensive than what has yet been officially acknowledged, according to Morton H. Halperin of the Open Society Institute. (The Open Society Institute helps fund Secrecy News.)

“Congress enacted legislation the meaning of which is simply not deducible from the words in the text,” he told (pdf) the House Judiciary Committee last week.

Will the new law “lead to the interception of phone calls and emails that the intelligence community should not be reading”?

“I have no idea if that is the case or not but neither does anyone else in the public and most of the Congress,” said Mr. Halperin. “That very uncertainty is simply unacceptable and a threat to both our liberty and our security.”