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.
Posted 11:06 AM by Marty Lederman [link]