So, I’ve been saying for a while now that, contrary to the administration’s claims,  there’s just no way on earth that a FISA court judge issued a ruling last spring requiring FISA warrants for all intercepts of foreign-to-foreign communications that happen to pass through U.S. switches.  Even if the FISA court were not incredibly deferential, there is simply no way to extract such a requirement from the statute, even on the most strained reading. Yet it is on the grounds of this supposed new requirement that the White House is asking for broad new surveillance authority.  (Actually, it is the second-hand reports that have typically contained this claim in its clearest form; people who’d actually seen the ruling, like Attorney General Mukasey and DNI McConnell were typically a bit more vague and cagey in their wording.)  Well, via the Electronic Frontier Foundation, it looks like that was probably right:

At the breakfast yesterday, Wainstein highlighted a different problem with the current FISA law than other administration officials have emphasized. Director of National Intelligence Mike McConnell, for example, has repeatedly said FISA should be changed so no warrant is needed to tap a communication that took place entirely outside the United States but happened to pass through the United States.

But in response to a question at the meeting by David Kris, a former federal prosecutor and a FISA expert, Wainstein said FISA’s current strictures did not cover strictly foreign wire and radio communications, even if acquired in the United States. The real concern, he said, is primarily e-mail, because “essentially you don’t know where the recipient is going to be” and so you would not know in advance whether the communication is entirely outside the United States.

That makes a certain amount of sense: If you send me an e-mail, it sits on a server until I log on and download it—but I could be anywhere when I do that. On the other hand, I would still be surprised if to learn that the restriction on e-mail intercepts applies when there’s a known recipient reasonably believed to be outside the U.S., with no reason to expect them to be coming here. Anyway, possibly some tweak to either FISA or the Stored Communications Act is necessary to fix the problem.  But surely the broad warrantless wiretapping powers sought by the administration are out of all proportion to the actual problem.  And since this little detail doesn’t exactly seem to compromise national security, it ought to be suggestive—and, if you’re a member of Congress, infuriating—that the executive branch seems to have deliberately sown confusion about the precise nature of the problem.