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The End of Illegal Domestic Spying? Don’t Count on It

by WS Editors

Mar 15, 2007 | National Security


Americans of all persuasions were shocked by the revelations, first reported in the New York Times in December of 2005, that President Bush had authorized the National Security Agency (NSA) to eavesdrop secretly for years on the calls and e-mails of American citizens, bypassing the warrants required by the Foreign Intelligence Surveillance Act (FISA) and the U.S. Constitution’s Fourth Amendment. The administration’s decision, in January, to subject the NSA program to review by the special FISA court, supposedly ending the controversial warrantless surveillance, was reported as a stunning and welcome reversal.

Yet the surveillance program isn’t the only thing now “warranted”; so is skepticism about the administration’s change of heart. The superficial change-back to FISA control merely masks more deeply hidden examples of secrecy and deception in the concerted attack on American constitutional values. Whether manifest in the Scooter Libby verdict, the recent scandalous disclosures that National Security Letters (NSLs) have been deceptively and illegally used by the FBI to spy on unsuspecting Americans, or in these NSA programs, this attack on our constitutional core demands a vigorous response.

FISA VERSUS TSP—The administration has defended the NSA’s so-called Terrorist Surveillance Program (TSP) and its accompanying executive power-grab—like so many other radical moves—by reference to 9/11. The president and his advisers see the “long war on terror” as requiring a “new paradigm” free from traditional legal constraints. Justice Department lawyers have prepared memos—some still classified—rationalizing extraordinary and unprecedented claims that the president as commander-in-chief during this war could even, acting on his own wishes alone, ignore direct prohibitions in existing laws.

FISA is one such law. Enacted in 1978 after Watergate and the revelations that innocent Americans had been spied on for decades, the law represented a careful compromise. Balancing executive power to fight foreign spies and terrorists with legal limits calculated to protect Americans’ privacy and liberty, the law created a secret FISA court to hear government requests for surveillance warrants, provided that FISA (along with Title III for ordinary criminal surveillance) would be the “exclusive means” for monitoring domestic electronic communications, and stipulated that warrantless domestic wiretapping would be considered a crime.

Ordinary criminal warrants require “probable cause” that a crime has been committed. But FISA warrants only require probable cause that the target is a foreign power or foreign agent. Gathering foreign intelligence doesn’t require as high a standard as gathering it to criminally prosecute U.S. persons entitled to Fourth Amendment protections. The NSA’s TSP operated on a third, still lower standard: merely an employee’s “reasonable belief” that Al Qaeda, for example, was communicating with an associate inside the U.S. If these were in fact the only targets, either no warrant would be required (for the target outside the U.S.) or a FISA warrant would be readily obtainable from the extremely deferential FISA court (which has declined only about four of 20,000 government requests).

TSP clearly encompassed far more tenuous communications in the chain, raising questions of how deeply and for how long calls should be monitored: Even those receiving innocuous or mistaken calls? What about everyone subsequently called by, or calling, them? Embarrassing confusion about such standards appeared at one press conference when then-NSA director General Michael Hayden denied that the plain language of the Fourth Amendment includes the phrase “probable cause.” He and other officials repeatedly claimed that mere “reasonableness” would suffice. But the Fourth Amendment does require a warrant for domestic surveillance, except in certain narrowly defined cases.

FANCY FOOTWORK—Instead of continuing to deny the existence of the TSP program or deny that it violated FISA, the president defended it, basically on two grounds. First, he argued it was necessary to protect the nation in time of war, and part of his “inherent authority” as commander-in-chief. The FISA court, he said, didn’t have the speed and agility needed to spy on Al Qaeda, even though the judges regularly granted warrants at all hours and FISA itself allowed warrantless surveillance for 72 hours in emergencies. While the president may have some inherent authority for warrantless surveillance of enemies abroad, this doesn’t excuse him from the requirement to obtain warrants for domestic surveillance.
Second, he claimed the TSP was allowed by Congress’s Authorization to Use Military Force (AUMF) against those responsible for 9/11. Even conservative Republicans like Senators Lindsey Graham and Arlen Specter found this argument ludicrous. The AUMF doesn’t mention surveillance, and no one in Congress intended such authorization. In fact, administration efforts to add language pertaining to surveillance inside the U.S. had been rejected. Moreover, FISA had been extensively amended (by the USA Patriot Act) without the extreme of allowing warrantless searches, and Attorney General Alberto Gonzales admitted he was told that Congress wouldn’t allow such amendments. So how could Congress have intended the general AUMF language to override FISA’s specific prohibition?

Leading constitutional scholars, unsurprisingly, rejected the administration’s position and concluded that the program was illegal. Ruling last August in a lawsuit brought by the ACLU against the NSA, Michigan federal judge Anna Diggs Taylor held that the program violated FISA as well as the Constitution’s First and Fourth Amendments, and the separation of powers, although a judicial panel said the program could continue while the government appealed.

It was shortly before the government’s uphill appellate-court battle, and a day before Gonzalez testified before the Senate Judiciary Committee, that, in the post-election environment, he announced that the TSP would be brought within FISA. The government now argues that this moots Judge Taylor’s decision. For this and more than fifty other lawsuits challenging the surveillance, the government also urges dismissal on Catch-22 grounds: the “state secrets privilege” shields such programs, and since the surveillance is secret, the plaintiffs cannot demonstrate the harm that would confer standing to sue.

Open questions include (i) how the FISA court, previously viewed by the administration as too cumbersome, suddenly became agile enough; (ii) whether the FISA court will protect us, given that its legal standards suddenly allowed these “innovative and complex” orders, when the NSA’s more relaxed standard previously didn’t suffice; (iii) whether the still-secret warrants include constitutionally mandated, fact-based suspicion of individual circumstances or are blanket program-approvals of some kind; and (iv) why we should believe what the administration says now, since the program was masked in secrecy and deception before.

General Hayden and 9/11 Commission Vice Chair Lee Hamilton have both confirmed in Congressional testimony what Hamilton called the “astounding intrusion into the lives of ordinary Americans that is routine today in government.” Certainly, NSA technological power can hardly be overstated—and it is growing. Already possessing the most incredible information-gathering capabilities in the world, the NSA has recently complemented its global listening posts and satellites with new technologies, including speech recognition and translation. James Bamford, an eminent chronicler of the NSA (and a plaintiff in the ACLU lawsuit), writes that the NSA is “close to achieving” its “ultimate goal of intercepting and reviewing every syllable and murmur zapping into, out of, or through the United States.”

THE PRIVATE SECTOR—Telecommunications companies like AT&T have long and profitably assisted the NSA, and as technology has shifted international communications to U.S. and rich-country hubs in ways that erode the foreign/domestic legal distinctions of FISA described above, they’ve helped the NSA exploit these trends. Litigation documents and media reports confirm that these companies have allowed the NSA to tap directly into not just undersea cables but also fiber optic cables that enable real-time back-door access to these blurred domestic and international phone, e-mail, VoIP, and instant-message communications. The companies involved have either issued denials—which may be lies that they see as justified for national security purposes—or non-committal statements that they comply with “the law” (presumably as interpreted by the Bush administration).

The companies have particularly assisted a distinct NSA program revealed shortly after the warrantless-eavesdropping TSP program was made public: datamining millions of intercepted American communications. Datamining is increasingly popular in government and business, involving automated review of significant quantities of data to discern patterns and predict and influence behavior. This datamining assumes that the patterns identified can highlight terrorist communications, as distinguished from ordinary communications, in addition to allowing more detailed searches within what one source described as “the largest database ever assembled in the world.”

Such datamining recalls the discredited Total Information Awareness (TIA) program run by former Iran-contra felon John Poindexter, which Congress defunded after a public outcry, but aspects of which quietly migrated to other agencies, including the NSA. The administration has also lobbied Internet companies and Congress to require data retention to identify who uploads information, to help garner intelligence or prosecute for illegal content. House Republicans introduced a bill in February that would mandate such retention.
Datamining’s typical approach—analyzing vast quantities of information instead of targeting based on individualized suspicion—may be fine when used by private companies such as Amazon.com to predict, for example, that a book will interest you based on your purchasing patterns. It is more problematic when secretly used to stigmatize you, deny you benefits or services, criminalize you by taking your actions out of context, or when combined with other databases to constitute what is effectively an intrusive warrantless search.

A report by the nonpartisan Congressional Research Service recently noted datamining’s limitations in counter-terrorism, including issues such as data quality, mission creep (e.g., from counter-terrorism to tax collection or fighting crime generally), human errors in interpretation, terrorist-incident data sets too small to be useful as valid predictive models, false positives, and privacy concerns. Some commentators, including Judge Richard Posner, insist that automated sifting of data cannot, by definition, invade liberty, since it means that “most data is not read by an intelligence officer.” Others realize that such vast dragnets can be an instrument of social control that seriously infringes on both privacy and other liberties precisely because people are never quite sure the extent to which they’re being monitored.

There are now reportedly over 200 datamining programs scattered throughout U.S. government agencies. Although Senator Russ Feingold (D-WI) has repeatedly introduced legislation requiring public reporting of these programs, along with their effectiveness, privacy impact, and ways individuals can be informed and opt out, the bills have not yet passed. These continuing datamining programs raise many issues, not the least of which are the missing independent checks-and-balances and the seemingly reversed presumption of innocence, which auger a serious loss of privacy and control over our own intimate information.

TIME FOR GRASSROOTS ACTION—The perils presented by the president’s surveillance programs pale in comparison with the broader threat from his theory of unlimited power, which assaults the rule of law itself (as evident in everything from his “signing statements,” by means of which he reserves the right to ignore laws he dislikes; to his detention policies; to the suspension of habeas corpus; and threats to prosecute the free press for reporting on all of these programs). Stephen Colbert recently joked that in a war without limits, the president’s power should be unlimited. But the rest of us should be concerned that it’s already unlimited if the president can ignore laws like FISA that were passed to stop precisely these sorts of abuses historically arising from unchecked power.

The president’s latest move toward complying with FISA is simply one of unilateral discretion that could be revoked at any time; he maintains that he can still depart from FISA at will. As the Supreme Court has previously written, “Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillances may be conducted solely within the discretion of the Executive Branch.”

In short, the reversal is deceptive, of a piece with related deceptions that undergird the administration’s imperial ambitions. Among the many presidential lies are Bush’s claims that the TSP surveillance: always involved a court order; targeted only international subjects; only related to Al Qaeda and its affiliates; meant that Democrats didn’t want to know if Al Qaeda was calling; prevented attacks like the ridiculous “Brooklyn blowtorch” scheme of Iyman Faris; would have prevented the human errors that failed to stop the 9/11 attacks, by identifying hijackers like Khalid Al-Mihdhar and Nawaf Al-Hazmi (whom officials knew were in the U.S. and had monitored but failed to arrest); was necessary and effective (despite thousands of TSP false leads protested by the FBI suggesting the contrary); and has now been terminated, when, as we’ve seen, it continues in secret under unclear FISA court authority and the datamining programs that persist unhindered.

Excesses like the TSP surveillance not only betray our values, but tend to produce negative practical consequences: insecurity and fear rather than security. Those who ask what harm this can cause if you’re innocent might want to recall the many innocent people whose privacy and free expression have already been violated: the U.S. citizens and foreigners rounded up and mistreated after 9/11; those wrongly locked up in Guantánamo Bay and a network of secret detention facilities; the peace activists who have been harassed, spied on, and blocked by “no-fly” lists; and America’s general slide toward being one of those fearful surveillance societies we’ve always thought could not be more different from us. Though terrorists plot to instill such fear, Abraham Lincoln was right to say that only we can destroy ourselves.

The new Congress has thus far not lived up to its promise to address these and other civil liberties and human rights violations and, where necessary, reassert the rule of law. It took grassroots pressure to defeat the president’s attempt to legalize these programs during the recent lame-duck session, and it will take grassroots pressure on the new Congress to achieve real reform. Congress must call immediate and comprehensive hearings both to stop this illicit surveillance and to hold accountable those who have ordered it.

Joe W. “Chip” Pitts is a lecturer at the Stanford Law School and a volunteer leader with Amnesty International, the Bill of Rights Defense Committee, and the ACLU. He has written for the Washington Spectator in the past, on the erosion of civil-liberties protections since 9/11.

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