Prepared Remarks of Kenneth L. Wainstein, Assistant Attorney General for National Security at the Georgetown University Law Cen

WASHINGTON, Sept. 10 /PRNewswire-USNewswire/ -- The following are prepared remarks of Kenneth L. Wainstein, Assistant Attorney General for National Security at the Georgetown University Law Center's National Security Center: September 10, 2007...


The Foreign Intelligence Surveillance Act (FISA) was passed in 1978, and it created a regime of court approval for national security surveillances. However, once again, Congress reinforced the distinction between domestic and foreign surveillance. Congress designed a judicial review process that would apply primarily to surveillance activities within the United States where privacy interests are the most pronounced and not to overseas surveillance where privacy interests are minimal or non-existent. Congress gave effect to this careful balancing through its definition of the statutory term "electronic surveillance," the term that identifies those government activities that fall within the scope of the statute and, by implication, those that fall outside it. Congress established this dichotomy by defining "electronic surveillance" by reference to the manner of the communication under surveillance -- by distinguishing between "wire" communications -- which included most of the local and domestic traffic in 1978 -- and "radio" communications -- which included most of the transoceanic traffic in that era.

Based on the communications reality of that time, that dichotomy more or less accomplished the Congressional purpose, as it distinguished between domestic communications that generally fell within FISA and foreign international communications that generally did not.

But, that finely-balanced distinction has eroded with the dramatic changes in communications technology in the 29 years since FISA was enacted. In that time, we've seen the migration of the majority of international communications from satellite transmission (which qualified as "radio" communications under the statute) over to fiber-optic cable (which is "wire" under the statute); and, as a result, we've seen the tipping of that careful balance in the FISA statute. As the technology evolved further and further away from the paradigm established in the statute, we had to subject more and more of our overseas collections to review by the FISA Court.

So we had a situation where, on one hand, we have this technological change making it more difficult for us to surveil overseas threats. And on the other, we have the backdrop of an increasing national security threat from international terrorism -- from terrorists who had hit us hard on 9/11; who were bent on inflicting catastrophic damage to us and our allies; who were taking full advantage of modern modes of communication to organize and command their international network of terrorist operatives; and who have continued to show resiliency and a determination about their work -- as reflected quite clearly in the disruption last week of a large-scale terrorist plot in Germany , and also as reflected in the recently-issued National Intelligence Estimate.

And it is the combination of these two historical trends -- the changing technology that handicapped our efforts to surveil our adversaries and the increasing threat posed by those adversaries -- that produced the turning point we came to this year.

And, this is the turning point that Congress addressed last month when they passed the Protect America Act. The legislation was very straight-forward but very effective. In short, it returned FISA to its original focus on domestic surveillance. And it did that by making it clear that -- regardless of the type of communication being surveilled or the location where the surveillance takes place -- FISA does not apply when the surveillance is targeting persons outside the United States . It does apply - and we have to get a court order - when the communications are domestic or when we target someone in the U.S. But, when the target is truly foreign, when we're targeting someone in another country, we don't need to go through the FISA Court.

For my money, it's an exceptionally fine piece of legislation. I know, however, that there might be some of you out there who don't completely agree with me on the Protect America Act.