Balkinization  

Sunday, February 26, 2006

Mother of Mercy, Is This the End of FISA?!*

Marty Lederman

*Hat tip: Edward G. Robinson.

The Washington Post reports today about legislation drafted by Senator Specter to respond to the NSA/FISA imbroglio. The Post makes it sound as if Senator Specter would be clamping down on the Administration:
The federal government would have to obtain permission from a secret court to continue a controversial form of surveillance, which the National Security Agency now conducts without warrants, under a bill being proposed by Senate Judiciary Committee Chairman Arlen Specter (R-Pa.). Specter's proposal would bring the four-year-old NSA program under the authority of the court created by the 1978 Foreign Intelligence Surveillance Act. The federal government would have to obtain permission from a secret court to continue a controversial form of surveillance, which the National Security Agency now conducts without warrants.

Although that might be technically true, the notion that the Specter bill would "bring the four-year-old NSA program under the authority of the [FISA] court" obscures what's so significant about the Specter bill -- namely, that it would bring the program "under the authority of the court" by providing statutory authorization for a program that is currently illegal.

The draft legislation isn't at all what Senator Specter has been talking about in recent weeks -- namely, a bill to facilitate judicial review of the legality of the current NSA docmestic surveillance program. This bill would appear to do absolutely nothing to address whether the current and ongoing program(s) is (are) permisisble under current law -- that is to say, it would not seek to facilitate judicial review of the AUMF and Article II arguments on which the Administration is relying.

As Glenn Greenwald notes, it is "disorientingly bizarre to hear about a proposed law requiring FISA warrants for eavesdropping because we already have a law in place which does exactly that. It's called FISA. That's the law the Administration has been deliberately breaking because they think they don't have to comply with it and that Congress has no power to make them."

But the Specter draft is even more alarming than Glenn suggests. According to Glenn, the Specter draft would "require[] (again) that the NSA program be conducted only within the FISA framework."

As I read the draft bill, however, this is wrong. It's not simply a a reenactment of the "FISA framework" -- instead, it's a wholesale dismantling of that framework, a substantive amendment to FISA that would vastly increase the surveillance authority of the President. It would give the Executive branch everything it has always wanted, and much more: The punishment for having broken the law with impunity would be a wholesale repeal of the law that has governed electronic surveillance for almost 30 years (and not only with respect to Al Qaeda or terrorism). In one fell swoop, the Specter legislation would undo the detailed regulatory scheme that both political branches have so carefully calibrated over more than a quarter-century.

A word of caution: I've barely had time to review the draft closely, and so perhaps I'm missing something significant. These comments are necessarily tentative and preliminary. But on first glance, this seems to be the major impact of the Specter bill:

Under FISA, in order for the federal government to engage in electronic surveillance targeted at someone here in the U.S. -- i.e., at phone calls and e-mails going out of the U.S. -- there must be probable cause that the person targeted is a foreign power or an agent of a foreign power. See 50 U.S.C. 1805(a)(3). The Specter bill would go much, much further. Under that bill, it would not be necessary for the NSA to show that either party to an intercepted phone call or e-mail has anything to do with Al Qaeda or any other terrorist organization. It would not even be necessary for the government to show probable cause -- or reason to believe, or any evidence -- that etiher party to the call or e-mail is a foreign power, an agent of a foreign power, or even associated with a foreign power.

Instead, the bill would permit domestic electronic surveillance targeted at U.S. persons merely upon a showing of "probable cause" that the surveillance program as a whole -- not even the particular targeted surveillance -- will intercept communications of anyone who has "had communication" with a foreign power or agent of a foreign power, as long as the government is seeking to monitor or detect that foreign power (or agent)! (See the new section 704: The standard for the FISA Court's review of the application is whether "there is probable cause to believe that the electronic surveillance program will intercept communications of the foreign power or agent of a foreign power specified in the application, or a person who has had communication with the foreign power or agent of a foreign power specified in the application.")

This is breathtakingly broad because the pre-existing definitions of "foreign power" and "agent of foreign power," which would not be changed, include not only terrorist organizations, but all components of a foreign government, all foreign-based political organizations, and all non-U.S. persons acting in the U.S. as agents of such govenrments and organizations.

Therefore, if I'm reading it correctly, if you've ever had any communication with a foreign government or organization, or its U.S. agents or employees -- that is to say, if there's "probable cause" that you live and breathe here in the U.S. -- this bill would permit the President to wiretap you indefinitely, without any showing that any of your phone calls have anything to do with a foreign entity, let alone Al Qaeda. [UPDATE: Not quite indefinitely. "Continuous" surveillance could only last 90 days, after which the NSA would have to obtain a traditional FISA order, or perhaps merely skip a day and start the surveillance anew, so that it's not "continuous" for more than 90 days.]

In other words, there would no longer be any meaningful substantive statutory restriction on the federal government's electronic domestic surveillance of U.S. persons -- the end of FISA as we know it. The only check would be an odd constitutional check: The FISA court would be required to certify that the program as a whole (again, not any particular surveillance) is "consistent with" the Fourth Amendment. This would, if I'm not mistaken, bring us right back to the pre-FISA days, when the Fourth Amendment was the only legal constraint on domestic electronic surveillance by the federal government. To be sure, under the Specter bill the Fourth Amemdent bona fides would have to be approved in advance, by the FISA court. But the proceedings would be secret, and ex parte. Moreover, the FISA Court could not possibly review the surveillance for, e.g., the "particularity" that the Fourth Amendment requires, because the FISA Court would be tasked not with determining whether any particular interception is constutitional, but somehow with making "wholesale" determinations that the program writ large is "consistent with" the Constitution. That seems untenable, at least on first glance.

If I'm reading this draft correctly, it goes far, far beyond what has been proposed by those, such as Richard Posner and Phillip Bobbitt, who think that FISA is outmoded and needs radical updating.

Moreover, the requirements of FISA Court approval in the Specter bill would be limited to the substance of communications -- and would expressly exclude interception of information identifying sender, recipient, date or time of the communication. See section 702(d)(2). Thus, I think it could be read to implicitly authorize all "data mining," without FISA court approval, of the latter category of information, which is currently covered by FISA at least some of the time. And it would appear not to include any of the prophylactic measures that Jack identified as necessary to ensure that such a data-mining program is constitutionally acceptable.

As Glenn describes it, reading of the Specter bill "is somewhat like hearing that a life-long, chronic bank-robber got arrested for robbing a bank over the weekend and, in response, a Senator introduces legislation to make it a crime to rob banks." I don't think that's quite right -- in fact, it's like hearing that a lifelong, chronic bankrobber was arrested for robbing a bank over the weekend and, in response, a Senator introduces legislation to make it lawful to rob banks. (Well, with all respect to Glenn, the bank-robbing analogy isn't the best, because the conduct in question here is not as inherently wrongful as grand theft. But the Specter initiative does respond to wanton illegality with a bill to make the conduct lawful.)

It may be that I'm misreading the bill. I hope so. I'd very much welcome comments showing why I'm wrong. (And I should note that the draft is said to be a work in progress -- it's possible that it does not currently reflect what Senator Specter wishes to accomplish.) [UPDATE: Glenn G. points out that the bill would give the FISA Court the authority not only to evaluate a "program" under the Fourth Amendment, but also to "consider the benefits" of the program "as reflected by the foreign intelligence information obtained." See proposed section 704(b)(3). That is a very odd provision. Insofar as it would give the FISA Court the power to reject surveillance because of the court's simple disagreement with the Administration that the "benefits" were worth the intrusion on privacy -- in Glenn's words, "vest[ing] the FISA court with rather broad discretion to approve or reject the eavesdropping programs submitted by the Administration" -- it would be of dubious constitutionality: It's not the role of an Article III court to be second-guessing the policy choices of the Executive branch. If, on the other hand, the FISA Court is to consider the "benefits" only as a component of its evaluation of the constitutional question -- e.g., considering an NSA "special needs" argument under the Fourth Amendment by looking, in part, at how necessary the surveillance is -- it's probably not unconstitutional; but in that case, the "consider the benefits" provision wouldn't provide the FISA Court with any discretionary authority to nix a surveillance program merely because it doesn't like the smell of it.]

So what's the alternative? How about this: A statute that facilitates prompt judicial review of the legality under current law of the NSA programs. Let's get a prompt Supreme Court evaluation of the current lay of the law and the land -- and only then should we begin the careful evaluation of how FISA might be amended to take account of the needs of the current conflict with Al Qaeda.

Comments:

If you're right, that's quite disappointing. On the other hand, I've had an extremely bleak view of Specter's independence and sincerity ever since this.
 

The new provisions authorizing FISC approval of entire "programs" of anti-terrorist surveillance are rather broad. If your primary concern is civil liberties, and you believe this tilt alters the balance too far away from civil liberties in favor of security, then I can see how you would not like this draft.

There does seem to be a lot of political support for such a tilt, however. One way or another, we likely will see enactment of some New and Improved Terrorist Surveillance Program beyond the confines of FISA as it exists today.

Personally, I am most worried about issues of executive power and the rule of law. In that respect, I think the bill does draw a line against further adventurism by the President -- including "programs" not yet revealed. It does this in two ways:

1) It requires each such program to be disclosed to the FISC court and to Congress.

2) It requires the court to pass on the constitutionality of any such program. (I do wish there were more explicit language describing remedies and appellate review in the event that the court disapproves.)
 

Three quick observations:

1) The proposed law does not seem to make any distinction between international and purely domestic communications. In other words, it would seem to allow a much broader warrantless surveillance program than the one we've been talking about for the last two months.

2) While the statute requires the Attorney General to explain in his application to the FISC why it is necessary to circumvent the normal FISA warrant procedure, it provides no standards for the court to use in judging whether the reason provided is a good one. What if the AG simply says that FISA's "probable cause" standard is too exacting? Is that a good enough reason?

3) I didn't see anything in the bill that would prevent information procured through these warrantless surveillance programs from being used in a subsequent application for a FISA warrant. As I understand it, the FISC has imposed that limitation on its own. If this legislation were passed, even that minimal protection would be called into question.
 

"In one fell swoop, the Specter legislation would undo the detailed regulatory scheme that both political branches have so carefully calibrated over more than a quarter-century." Yes, that's how the democratic process works. If Congress passes and the President signs the proposed legislation, then the political branches will have made the determination that a change to the "carefully calibrated" law enacted 25 years ago is necessary. It's one thing to argue that the substance of this proposed legislation is wrong, but to suggest that there is some kind of procedural irregularity here is a tad overwrought.
 

I am open to the idea that some form of automated monitoring, i.e. sophisticated version of keyword searching of communications, may be necessery. Though it is important that these keywords be narrowly tailored, i.e., you can't just search for any words found to be statistically associated with illicit activity but you could search for names, locations and other phrases known to be associated with Al Qaeda or other terrorist organizations/drug cartels.

However, the essential problem of passing any bill like this at the present is that it does nothing to prevent the president from simply disregarding this law in the future. Any such bill needs to be tied to at *least* a public presidential disavowal of the power to override such a bill (though impeachment proceedings and a resolution of censure are really what should be done this doesn't seem politically feasable)..
 

If I understand this correctly this bill will authorize a data mining of communications program since the definition of the "substance of communication" excludes identifying information (of the sender, or origin or recipient) and Spector contemplates that it is not feasible (701(5)(B) to name every person and location-- so much for describing with particularity of the place to be searched and items to be siezed.

Section 704 requires the FISA court has to issue an order authorizing the 45 day program as long as the court believes there is probable cause that the program will intercept a communication of the foreign power or foreign agent specified and the court believes the program is consistent with the court's duty to uphold the constitution.

The order is "limited" to 45 days but is renewable.

Another item of worry is the proposed law basically includes a backdoor finding that there is no expectation of privacy in telephone conversations if the conversation can be intercepted (701 (4)).

How can the FISA court deem an operation which cannot describe the communication to be searched and siezed with particularity to be consistent with the court's duty to uphold the constitution?

Thanks Arlen, try not to do us any more favors.
 

Yes, that's how the democratic process works. If Congress passes and the President signs the proposed legislation, then the political branches will have made the determination that a change to the "carefully calibrated" law enacted 25 years ago is necessary.

I think the point was that Specter's bill says and does nothing about the previous and continuing violations of existing law. It's one thing to change the law in the future, it's another altogether to reward the Administration for its felonies. And as logicnazi points out, why will Bush obey this law if he felt free to ignore the existing one?
 

I wonder if there is a nontrivial separation of powers problem here. Congress is basically passing the buck because it doesn't want to take a stand on the administration's program one way or another, presumably for political reasons. So instead, it creates a court and delegates the authority to review the program.

Is Congress engaging in improper delegation, or is it clear that the functions being delegated are purely judicial in the first instance?
 

I'm a PA resident. Here's what I emailed him:

http://specter.senate.gov/index.cfm?FuseAction=ContactInfo.Home

I am a constituent.

I am writing out of concern that Senator Specter's proposed amendment to the Foreign Intelligence Surveillance Act ("FISA") (1) will not address questions about the constitutionality of the current NSA program and (2) will weaken judicial protection of our constitutional rights.

My attention was brought to this matter by a post by Marty Lederman to the weblog of Jack Balkin, a professor at Yale Law, that I recommend the Senator reads, available here:
http://balkin.blogspot.com/2006/02/mother-of-mercy-is-this-en_114098414956416326.html

Senator Specter is in his seat not due to support from conservatives, who attempted to removed him, but because of support from moderates and acceptance by liberals, both of whom defended him in the primary and did not mount a strong challenge in the election. As should come as no surprise, Senator Specter is perceived in Pennsylvania as a "centrist" Senator, and it is through this perception that he has retained office.

Polls show unambiguously that the American public believes their civil liberties should be protected at least as strongly as is required under the current FISA. In fact, a majority of Americans would go beyond the FISA and not even allow retroactive issuing of warrants, as the FISA allows. I doubt Senator Specter's constituents in Pennsylvania hold radically different beliefs. As Robert Reinstein, the Dean of Temple Law (in Philadelphia, from which the Senator hails), said, the NSA program is "a pretty straightforward case" of the President acting illegally.

If Senator Specter (1) allows the current and previous illegal and unconstitutional spying to go unchecked and unreviewed or (2) permits the current legislative safeguards to be weakened, then he will not only do a disservice to the nation's Constitution, but he will betray the individual men and women of Pennsylvania who trusted him to represent their views, not the views of a handful of lawyers and political operatives in the White House.

If the Senator has settled upon a position, I ask that he make this position clear to constituents like me so that we may participate in the process and let our thoughts be known. As the bill has not yet been passed, I urge him in the process to hold our liberties and our Constitution in the highest regard.
 

And Specter replies. Here's the substantive part:

Law enforcement officials must be provided with as much information and as many tools as possible to ensure the protection of our country, but those resources cannot come at the expense of citizens' civil liberties. I believe that it was wise for the President to be candid with the American people concerning his surveillance program. It is important at this point that the matter does not become politicized, because this is a time for analysis and oversight, not attacks.

The U.S. Constitution limits the President's ability to conduct surveillance or searches of United States persons while residing within the United States . In 1978, Congress enacted the Foreign Intelligence Surveillance Act ("FISA") which permits federal agents to conduct electronic surveillance on United States persons in order to acquire foreign intelligence without obtaining a traditional Title III search warrant. FISA does, however, require a FISA court order approving the surveillance. In so doing, the Congress sought to strike a delicate balance between national security interests and personal privacy rights within the United States . I have scheduled Congressional oversight hearings in order to make sure that we are able to maintain this delicate balance.

 

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Specter is providing congress titular oversight with more coming into its purview under his draft legislation, ostensibly, though I have not found that the draft is available yet outside executive consulting circles; it certainly is absent from his website, nor is there any mention of it there; however, Specter has posted to his website news of the roster of officials and others who are to appear before the Senate Judiciary Committee on the topic war powers and NSA tomorrow, among them are Ex DI Woolsey, Doug Kmiec, Dean Koh, and a few others.

I think ML is right that one segment of Specter's proposed reconstituted FISA law, as described, is a retroactive hold harmless for the program(s) already underway; both congress chambers held closed door briefings on these in their intelligence and government ops oversight committees in the past two weeks. Specter also seems to be tossing it to Congress to add protections such as identifying how Congress will oversee officials who design and utilize templates overlain on the data during datamining; I can imaging the AG demurring that this would be to micromanage, cumbersomely.

And, as JkB observed in the linked article here in December, there will need to be protections of archived data, though it is unspecified whether Specter has included such provisions in his draft.

The ex parte briefings present in the Specter draft continue to be a worrisome construct; I had the impression that the DeWine measure might add conceptually to that component; and I would expect DeWine to have coordinated in the caucus with Specter to plan which elements each senator would emphasize; and, as JkB's worrisome post on this site a week ago observed, perhaps going so far as to include a conference committee strategy whereby the safeguards would be stripped before voting the final measure out of committee. Basically the plan seems to be Specter's plenary forgiveness and loosening of control, the essence being the administration must believe whatever Specter proposes is going to pass fairly intact.
 

How odd. One might imagine that Marty believes that the almost academic question of whose reading of the law is right is the paramount question facing the nation.

What is interesting is that Specter's draft suggests that some early reports were right to suggest the unusual nature of the NSA program, and the difficulty in bringing the program under FISA. If Specter thought it possible to provide for the particularized determinations required under FISA (as opposed to the wholesale program-wide determinations made under his proposal), presumably he would have drafted accordingly.

Two things to note:

Marty has all along suggested that the disagreement on this issue was on the legal merits, and not on the underlying policy. That's clearly not indicative of his real position.

Marty isn't, despite the additional context we've been given, ever going to reconsider the weight of the arguments on the NSA program. We're now seeing more clearly that a) this program is essential to the war with al Qaeda (and is seen as such by a majority of the Congress, even if Marty disagrees) and b) this program doesn't fit under FISA procedurally (for the reasons that Specter provides for a wholesale and not an individualized determination). If the program is essential and if FISA blocks it, one might think there'd be an explanation forthcoming for why we should think that, in these particular circumstances, FISA is a reasonable regulation of the president's Article II powers. But Marty'd rather assert that it's reasonable than provide an argument.
 

I think Thomas' criticisms are most apt. What strikes me is not only the overwroght nature of Marty's header "Mother of Mercy, is this the End of FISA?!*", but also his unwillingness to even admit the possibility that, as Congresswoman Harmon for one has stated, this program may be essential to national security. Indeed, given the movement away from oversight hearings and towards amending the FISA after members of Congress have been given classified briefings, this appears more and more to be the case. Yet Marty suggests that this step should be delayed indefinitely until we have litigation over whether the program is lawful, which could take years.

So I have two question. Marty, do you admit the possibility that this program may be essential to national security, as Congresswoman Harmon has stated? And, if so, do you still believe it is more important to litigate the legality of the status quo rather than amend FISA?
 

So I have two question. Marty, do you admit the possibility that this program may be essential to national security, as Congresswoman Harmon has stated? And, if so, do you still believe it is more important to litigate the legality of the status quo rather than amend FISA?

I can only answer for myself, but I think it's pretty easy to separate your 2 questions. The program may or may not be important to national security -- there aren't enough public details to know if it is or isn't -- but I certainly wouldn't take Jane Harman's word for it. If it IS that important, and if it's consistent with the 4th A, then I don't have any problem amending FISA. Assuming, of course, that any amendment protects against abuses.

To me, though, the whole "this is an important program" rhetoric misses the salient point: that the Administration not only broke the law for 4 years, but lied about that fact to conceal the violations. Adherence to the rule of law is so vitally important to the US system of government that the national security issue pales in comparison. It is far more important to affirm the rule of law than to pass any particular amendment to FISA.

In fact, the current rush to amend FISA makes the Administration's actions to date even more reprehensible. It discouraged previous amendments on the ground that they were unnecessary. It claimed that Congress would not agree to amendments. If amendments are necessary, and if Congress does agree to them, then the previous felonies become even more disturbing, if that's possible.

You present a false dichotomy when you talk about litigating the status quo instead of amending FISA. It's possible to do both at once. But if Congress amends FISA without enforcing penalties for the previous violations, it will do far more damage to our country than Osama bin Laden did or can.
 

Mark, of course we can both amend FISA and litigate whether the Administration was violating the law. I was critiquing Marty's point that we should not -- "Let's get a prompt Supreme Court evaluation of the current lay of the law and the land -- and only then should we begin the careful evaluation of how FISA might be amended to take account of the needs of the current conflict with Al Qaeda."

You also state that "if Congress amends FISA without enforcing penalties for the previous violations, it will do far more damage to our country than Osama bin Laden did or can." I'll chalk that one up to hyperbole, as you can't seriously believe that.
 

I was critiquing Marty's point that we should not -- "Let's get a prompt Supreme Court evaluation of the current lay of the law and the land -- and only then should we begin the careful evaluation of how FISA might be amended to take account of the needs of the current conflict with Al Qaeda."

I think it's important to deal with the violations first, if only because that reaffirms what I consider the crucial principle. If Congress changes the law as the first step, the risk is that the violations will be overlooked or even considered retroactively approved. It's not logically necessary to proceed that way, but it probably is psychologically necessary.

I'll chalk that one up to hyperbole, as you can't seriously believe that.

I absolutely do believe it. The rule of law is on the VERY short list of bedrock principles for this country. Bush's contempt for that principle subtantially undermines a core American value. Bin Laden can't do that.
 

So, let me get this straight. You believe that if Congress chooses to amend the FISA -- a decision which would be reached by the political branches within the democratic process, mind you -- that would do far more damage to the country (your words) than someone who has slaughtered almost 3000 of our fellow citizens, and has declared his intention to kill even more. However much you may despise President Bush, all I can say is "wow."
 

So, let me get this straight. You believe that if Congress chooses to amend the FISA -- a decision which would be reached by the political branches within the democratic process, mind you -- that would do far more damage to the country (your words) than someone who has slaughtered almost 3000 of our fellow citizens, and has declared his intention to kill even more.

I have no idea how you could reach that conclusion from my posts. In a word, no.

My view is that if Congress fails to address the Administration's repeated and continuing violations of FISA, then that failure will do more damage to America than bin Laden. I say that because the Administration's contempt for the rule of law undercuts a core American value.

As for amending FISA, I don't have enough information to know if that's a good idea or not. Assuming it is, I'd prefer the amendment to come after the Administration pays a political price for its felonies. That, however, is less important to me than the fact that it pay such a price.
 

Mark, let's just say we respectfully disagree. Indeed, I think our point of departure is this: where you seem to believe that the highest priority is that Adminstration "pay[] a political price for its felonies," I am more interested in learning whether the NSA program is, indeed, essential to national security. When I hear members of both parties who have received classified briefings make such comments -- Senator Schumer, for example, while critical of the Administration for not revealing more about the NSA program, was specific after Senate hearings today in saying, "I do not want to have it ended; I’ve never wanted to have it ended, I just want to make sure that somebody is overseeing it" -- I think the far greater priority is to amend FISA, if need be, so that the program can continue.
 

where you seem to believe that the highest priority is that Adminstration "pay[] a political price for its felonies,"

Let me just restate this to say that my highest priority is to affirm the rule of law against what I perceive to be a deliberate flouting of that. IMO, standing for certain values, this among them, takes precedence.
 

What Bush & Co and their water carriers (Specter, DeWine, Roberts, et al) are attempting with regard to their illegal domestic eavesdropping is yet another end run around the Constitution:

Article 1, Section 9 reads: No Bill of Attainder or ex post facto Law shall be passed.

Beyond the fundamentally criminal nature of these activities -- they crossed that line a long time ago -- what about the scope of their "listening in?" Rove, Cheney, Hadley, Cambone, Bolton, and the rest . . . Does anyone truly believe these boys are strictly targeting "known terrorists and their asssociates?" Please!
 

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