(Cross-posted at Daily Kos, My Left Wing and my blog)
Certainly the Bush administration is in a pickle over the recent revelation that Bush himself, in 2002, authorized the National Security Agency (NSA) to conduct electronic surveillance against US citizens. Presumably, and I’m paraphrasing the President himself with this, it was only to listen to bad guys talking to bad guys. According to Bush, this action was not only legal but required in his solemn duty to protect America and its citizens.
I think it’s worthwhile to take a closer look at FISA itself, inform ourselves, and be prepared for the arguments the administration is going to make as to why these secret, warrantless surveillance activities are not, as the President asserts, illegal. In fact, his argument is that they are proper.
Read on.
First, if you would like to browse the full text of the Foreign Intelligence Surveillance Act (FISA), you can click here.
I found a great deal of information about the explanation of FISA at the The Electronic Frontier Foundation’s (EFF) web site. I visited their page detailing the constitution of the EFF’s Board of Directors and nothing leapt out at me as to whether EFF is politically slanted – the Board seems to be comprised of technologists, law professors, and telecommunications industry representatives. Visit the link and check for yourself.
With that out of the way, the FISA FAQ they provided contained a great deal of information (link).
From their site:
What is the purpose of FISA?
FISA is aimed at regulating the collection of “foreign intelligence” information in furtherance of U.S. counterintelligence, whether or not any laws were or will be broken. (-snip-) Department of Defense (DOD) guidelines state that the purpose of counterintelligence collection is to detect espionage, sabotage, terrorism, and related hostile intelligence activities to “deter, to neutralize, or to exploit them.”
In short, counterintelligence and criminal prosecution are different.
I read that as pretty straightforward and very broad. FISA is there and was created with the goal of allowing a mechanism to collect foreign intelligence to protect America and its citizens. It continues:
How does FISA fit with regulation of electronic surveillance?
Given the “tendency of those who execute the criminal laws . . . to obtain conviction by means of unlawful seizures,” the Supreme Court has viewed commumications interception as an especially grave intrusion on rights of privacy and speech.
(-snip-)
Thus, the Court outlined seven constitutional requirements: (1) a showing of probable cause that a particular offense has been or is about to be committed; (2) the applicant must describe with particularity the conversations to be intercepted; (3) the surveillance must be for a specific, limited period of time in order to minimize the invasion of privacy (the N.Y. law authorized two months of surveillance at a time); (4) there must be continuing probable cause showings for the surveillance to continue beyond the original termination date; (5) the surveillance must end once the conversation sought is seized; (6) notice must be given unless there is an adequate showing of exigency; and (7) a return on the warrant is required so that the court may oversee and limit the use of the intercepted conversations.
Indeed, the Court said that if “neither a warrant nor a statute authorizing eavesdropping can be drawn so as to meet the Fourth Amendment’s requirements . . . then the ‘fruits’ of eavesdropping devices are barred under the Amendment.”
Where intelligence operations are concerned, however, the bounds of the Fourth Amendment are less clear than they are for ordinary criminal investigations. FISA creates a special court and legal regime for counterintelligence surveillance orders.
(-snip-)
FISA does not regulate the use of electronic surveillance outside of the United States.
There’s additional information in this section at the link provided above with case and law citations if you’re so inclined. I’ve extracted the parts I found interesting (I’m not a lawyer) in understanding FISA, its requirements, and applicability to the growing questions around Bush’s current activities. As such, I read in that section a delicate balancing act between the need to collect intelligence and guaranteeing the 4th Amendment rights of US citizens. Which brings me to the next tidbit:
Is there really a secret FISA court?
Yes. FISA established a special court, composed of seven federal district court judges appointed by the Chief Justice for staggered terms and are from different circuits.
(-snip-)Individual judges of the FISC review the Attorney General’s applications for authorization of electronic surveillance aimed at obtaining foreign intelligence information. The proceedings are nonadversarial and are based solely on the DOJ’s presentations through its Office of Intelligence Policy and Review.
The records and files of the cases are sealed and may not be revealed even to persons whose prosecutions are based on evidence obtained under FISA warrants, except to a limited degree set by district judges’ rulings on motions to suppress. (…) There is no provision for the return of each executed warrant to the FISC, much less with an inventory of items taken, nor for certification that the surveillance was conducted according to the warrant and its “minimization” requirements.
The FISC meets two days monthly, and two of the judges are routinely available in the Washington, D.C. area on other days.
I have heard on cable news different figures on exactly how many FISC judges there are – this document says 7, but I’ve heard also 10 and 11. What’s interesting to me is that FISA judges are appointed to the FISC by the Chief Justice of the SCOTUS. Previously this would have been Rehnquist. The job now falls to Robert. Which jogged a memory for me, from listening to his confirmation testimony. Of FISA and the FISC Roberts said:
Question from Senator DEWINE:
Judge, I want to ask you about one of your more important, probably least understood — not by you, but least understood by the public — role, if you are confirmed as the chief justice. And that is your job to appoint the members of the FISA court.
Judge, as you know, in 1978, Congress passed the Foreign Intelligence Surveillance Act. This law, of course, set up the FISA court.
As you well know, this is the court that our intelligence agents go to when they want to obtain wiretaps or search warrants against terrorists and foreign spies — a very important court, a court that meets in secret, a court that deals with the most important national security matters that we have, really, in our country, but also a court it deals with our precious civil liberties.
And, Judge, because it’s a court that meets in secret, it doesn’t gave the public scrutiny, it doesn’t have the glare of publicity and, quite candidly, does not have much oversight.
So I would like to know, besides what’s in the statute — the statute sets out that it will be your job to select the 11 judges who sit on the FISA court, the three judges who sit on the FISA court of review. There’s certain guidelines in the statute.
But besides that, I wonder if you could tell us what your criteria will be when you select these men, these women, who will serve on the court. And I wonder if you could give me your personal assurance that this will be something that will be very important to you, that you will take a hands-on approach and that you will be very personally involved in.
Because really it is a question of the utmost national security. These are people who are going to make sometimes life and death decisions for our country.
ROBERTS: I appreciate that, Senator. And if I am confirmed, that is something that I will address and take very seriously.
I think, as in many areas, my first priority is going to be to listen, to learn a little bit more about what’s involved.
I’ll be very candid. When I first learned about the FISA court, I was surprised. It’s not what we usually think of when we think of a court. We think of a place where we can go, we can watch, the lawyers argue, and it’s subject to the glare of publicity. And the judges explain their decision to the public and they can examine them. That’s what we think of as a court.
This is a very different and unusual institution. That was my first reaction. I appreciate the reasons that it operates the way it does. But it does seem to me that the departures from the normal judicial model that are involved there put a premium on the individuals involved.
I think the people who are selected for that tribunal have to be above reproach. There can’t be any question that these are among the best judges that our system has, the fairest judges, the ones who are most sensitive to the different issues involved, because they don’t have the oversight of the public being able to see what’s going on.
Again, to be perfectly honest, it is a very unusual situation, and I do think it places a great premium on making sure that the best qualified people for that position are selected.
DEWINE: I appreciate your personal attention to that. I know how important you know it is, Judge.
And I would just add one more comment, that that court, as all courts do, but even more so, not only makes decisions, not only decides whether to issue the warrant or not, but it’s the feedback that the Justice Department gets and the law enforcement agencies get that tells them what they can do and can’t do. And that feedback is unbelievably important and it affects the intelligence operations in this country and is just vitally, vitally important.
My emphasis added. It seems to me from that that both DeWine and Roberts take the mission and import of FISA seriously.
Senator Leahy also asked a question of Roberts regarding the FISA court:
LEAHY: Let me switch gears again.
Senator Grassley is not here right now, and Senator Specter and I have worked for several years to shed some light on the FISA court, the foreign intelligence court.
A lot of Americans are affected by their decisions. Most Americans don’t know how it works, don’t know whether their civil liberties are being curtailed or violated. We added some sunshine provision. The attorney general now submits a biannual report to four congressional committees, details how many people are the target of electronic surveillance and so on. It’s still inadequate in the fact it doesn’t get public reporting.
If you’re confirmed as chief justice, you’re the overseer of the FISA court. Most people don’t even look at that role of the chief justice. I think it’s probably one of the most important ones if you’re going to talk about the liberties and how they’re protected.
Would you be willing to work with members of Congress to add more transparency, or do you believe there’s enough transparency in the work of the FISA court now?
ROBERTS: Senator, you said you think this is something most Americans aren’t aware of. I suggest probably most judges aren’t aware of…
LEAHY: Well, that’s probably so.
ROBERTS: It is a specialized court. I will tell you when I became aware of it, it’s a surprising institution. It’s an unusual set-up.
LEAHY: Certainly different than what we think in our system of…
ROBERTS: That was exactly my reaction.
On the other hand, Congress, in setting up the court, obviously concluded there were reasons to do it that way.
I was asked a question about appointing the judges to it and my response was that, given the unusual nature of it — very unusual nature, given the usual traditions of judicial processes — that the people appointed to it have to be of the highest quality, undoubted commitment to all the basic principles, both of the need for the court and the need to protect civil liberties.
That I think is very important.
Beyond that, I would just tell you I don’t know enough about the operations of the court at this point and how it functions to be able to make any representations about what I would do, other than that I certainly appreciate that it’s an unusual establishment and in many respects doesn’t have the sorts of protections that the normal judicial process has, and that I would be sensitive to those concerns.
LEAHY: And I’d hope — my time is up. I apologize. But I’d hope that, if you are confirmed, that you might be willing — and I think Senators Grassley, Specter, and myself could put together some suggestions — at least keep an open mind on it.
ROBERTS: Certainly, Senator.
LEAHY: Because in an electronic age, in a digital age when more and more information is being pulled in on Americans that we sometimes don’t even know about, it is frightening. We want security, but we want to be like — as Benjamin Franklin said, a people who’d give up their liberties for security deserve neither. Thank you.
Again, my emphasis added. Link to the DeWine transcript here and the Leahy transcript here.
A few observations. First, DeWine’s emphasis was on the national security aspects of FISA yet both it and Roberts’ response underscored the necessity and gravity of the FISA court and the Chief Justice’s role in that court. Second, Leahy’s emphasis was much more on civil liberties protections and a need for great transparency. At the risk of slipping on my tinfoil hat, here, I found Leahy’s line of inquiry very interesting. Leahy is not on the Intelligence Committee. A little tickle occurred in the back of my brain, however, when he referenced “transparency” and a greater need for oversight, especially in light of the fact that the Bush administration is claiming that it briefed various Congressional leaders. I can’t find any reference to a public statement on FISA specifically on Senator Leahy’s website nor can I find any indication that he was one of the Congressional leaders who was briefed. Yet I find it remarkable that he was so hard-over on the issue of transparency and oversight. Perhaps this is just a long-standing issue he has had with FISA – I don’t know – but I wonder at what specific Senators know but can’t disclose (due to the classified nature of what they know) and, given that, how they might draw attention to the issue without violating disclosure laws. (End speculative editorial comment).
Back to FISA.
Why is there a special legal regime for “foreign intelligence” surveillance?
But in the 1970s the political winds changed. The 1975-76 Church Committee hearings documented extraordinary federal government abuse of surveillance powers. Examples included the the NSA’s Operation Shamrock and Operation Minaret, CIA’s Operation CHAOS, the FBI’s COINTELPRO domestic harassment of dissenters and anti-war protesters that included illegal wiretapping, and the illegal burglaries of the Nixon White House “plumbers.”
The Church Committee Report found that covert action had been excessive, had circumvented the democratic process, and had violated the Constitution. It concluded that Congress needed to prescribe rules for intelligence activities.
On the judicial front, the Supreme Court first confronted the tension between unmonitored executive branch surveillance and civil liberties in United States v. U.S. District Court, 407 U.S. 297 (1972), in which the United States charged defendants with conspiracy to destroy government property. Defendants sought electronic surveillance information, held by the prosecution, that the CIA obtained during a potentially illegal wiretap, wanting to ascertain whether the government had relied on information in the indictment or the case for conviction and to suppress any tainted evidence at trial. The Attorney General admitted that a warrantless wiretap had intercepted conversations involving the defendants.
Before the Supreme Court, the government defended its actions on the basis of the Constitution and the Title III national security disclaimer. The Court rejected the statutory argument, saying that “Congress . . . simply did not legislate with respect to national security surveillances.” As for the constitutional argument, the Court accepted that the President had the power “to protect our Government against those who would subvert or overthrow it by unlawful means” and that this power justified electronic surveillance of would-be subversives.
My emphasis added.
Wow. A lot of information in that excerpt. First, follow the links on Shamrock, Minaret, CHAOS and COINTELPRO. I’m sure the links I’ve provided only scratch the surface of what these programs did and they are frightening. The depth of surveillance that was being conducted against Americans in violation of their 4th Amendment rights is appalling. It’s clear that the Nixon administration’s activities were the catalyst to address civil liberties abuses that had been going on for a long period of time. Second, note the import of the SCOTUS decision in the excerpt. We are seeing possible implications of that ruling today. See EZ Writer’s recent diary about terror cases being threatened by Bush’s use of warrantless wiretaps. Third, note that SCOTUS rejected the statutory argument of invoking the Constitution as a basis for warrantless wiretaps. Finally, however, note the SCOTUS’ validation of the President’s right to use electronic surveillance of “would-be subversives” on Constitutional grounds. I read this as a conundrum.
Invoking the “broader spirit” of the Fourth Amendment and “the convergence of First and Fourth Amendment values” in national security wiretapping cases, however, the Court was especially wary of possible abuses of the national security power. The Court then balanced “the duty of Government to protect the domestic security, and the potential danger posed by unreasonable surveillance to individual privacy and free expression,” and found that waiving the Fourth Amendment probable cause requirement could lead the executive to “yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy and protected speech.” Justice Powell wrote that the inconvenience to the government is “justified in a free society to protect constitutional values.”
The Court emphasized that this case involved only the domestic aspects of national security: “We . . . express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents.” It invited Congress to act: “Given these potential distinctions between Title III criminal surveillances and those involving the domestic security, Congress may wish to consider protective standards for the latter which differ from those already prescribed for specified crimes in Title III. Different standards may be compatible with the Fourth Amendment if they are reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens.”
My emphasis added.
There’s the proverbial “money shot”. SCOTUS invited Congress to act and it did act, creating FISA to balance all these delicate concerns for security and simultaneous protection of 4th Amendment rights.
Go read the whole FAQ – it’s fascinating. I’ll summarize a few of the remaining high points:
- FISA can be used for ‘ordinary criminal investigation’ with qualifications. Those qualifications are that the investigation must have foreign intelligence information (FII) collection as its primary purpose.
- FISA is not limited to electronic eavesdropping and wiretapping. It can be used to permit ‘covert physical entries in connection with security investigations’.
- FISA is not bound as are traditional warrants to show probably cause that a crime was or is being committed.
- The FBI can use FISA surveillance information in criminal trials as long as the information was gathered with FII as the original target. The prosecutorial evidence does not have to be related to FII.
- FISA requests are funneled through the Justice Department. The Attorney General of the US must first approve them.
- Neither FISA defendants nor their counsel are likely to be given access to underlying FISA infromation for the purpose of challenging the validity of the surveillance.
FISA itself is viewed by many as a dangerous piece of legislation. From the FAQ document:
“…FISA powers are broad and vague, and the secrecy of FISA proceedings makes FISA powers susceptible to abuse.”
Wrapup – My Summary
I started this diary because I want to see what arguments are coming when Congress returns. I was watching MSNBC last night, Hardball to be specific. Nora O’Donnell is subbing for Matthews and spent a great deal of time talking and asking questions about the willingness of Congresspersons to take up the legality question of the President’s actions. The consensus was that Congress, on both sides of the aisle, will take the issue up in a strong fashion because the President’s actions bring into question the legitimacy of Congress itself. I won’t go into a whole tangential diatribe on Congress’ “legitimacy” (though I’m tempted) – but what was said rings true to me. If for no other reason than the fact that inaction would invalidate the mission of Congress, they are going to hit this issue hard.
So in doing this diary I learned the particulars and the nuances of FISA and here’s what I think:
- Abuse of wiretapping and electronic eavesdropping was pervasive in the 1960’s and 1970’s. It’s quite likely we will never really know how egregiously our rights as American citizens were repeatedly violated.
- There was a very real disconnect, prior to FISA, between the statutory powers of the President and the Constitutional necessity of the President to protect the US and its citizens.
- FISA was carefully and thoughtfully drafted specifically to address this disconnect and created a broad framework to strike the balance between civil liberties and national security.
- While FISA, in the opinion of some, may not have enough transparency or oversight, it has been held to be Constitution and is the law of the land.
- The Bush administration and specifically the President are attempting to undo legislation that was born out of years of abuses of civil liberties.
I find it highly ironic that Bush is doing the same types of things in his administration, under the same auspices no less (national security), as the activities which led us to the FISA in the first place. Are we living in some strange circular world where we allow mistakes that imperil the Constitution to be repeated? What he’s done is illegal. There’s no explaining or excusing that away.
I understand that the Bush administration is taking the “trust me” route. The retort I would specifically use to that invocation would be why do I have to rely on trusting you when laws exist to ensure that you are being trustworthy??
Finally, the ultimate question, as far as I’m concerned: FISA gives all the necessary authorities and latitude to the Executive branch to ensure that national security interests are protected with a sensitivity towards civil liberties. Why would the Bush administration feel the necessity to go around it? That’s the question we need to keep asking over and over – of our Congresspeople and each other and to anyone who will listen.
If you’ve made it this far, I thank you – it’s a long diary (lots of information, I hope) but one that I felt compelled to write.