Balkinization  

Friday, July 07, 2006

Hamdan and the NSA Domestic Surveillance Program: What Next?

Marty Lederman

As most of you probably know, I was from the outset not especially persuaded by the Justice Department's statutory defense of the NSA domestic surveillance program. Be that as it may, however, it seems to me that Jack, David Barron, and "Anonymous Liberal" are all correct that the Hamdan decision fairly decisively undermines whatever slight plausibility that argument might previously have enjoyed. (Orin Kerr intimates likewise.)

As David points out, if (as the Court held) the AUMF does not trump the limitations on military commissions that are only vaguely and implicitly lurking in 10 U.S.C. 821 and 836(b), surely that force authorization cannot supersede FISA's express provision that FISA and title 18 prescribe the "exclusive means" of engaging in electronic surveillance, and FISA's specific wartime surveillance provision, which authorized surveillance outside the FISA framework through December 3, 2001, but no later.

If we're all correct about this -- and I haven't seen any argument to the contrary -- then it raises two interesting questions:

1. What will OLC do when -- presumably within 45 days -- the NSA program must be reapproved? A.L. suggests that responsible lawyers, even those who are charged to push the legal envelope, should call a halt to the program. David recommends that Congress should tee up the question to DOJ. Stay tuned.

2. Will Cass Sunstein finally give up the ghost on his idiosyncratic view that the AUMF can be construed to authorize the NSA program?

I ask this not only because, as far as I know, no legislator has agreed with Sunstein and DOJ that the AUMF provided such authority. (One should be suspicious of any argument about congressional intent that doesn't reflect, well, any legislator's intent. Handy new canon of statutory construction: Interpretations that would come as a shock to all 518 legislators who voted for a bill are disfavored.) Nor even because Hamdan has so severely undermined the theory.

No, the main reason I'm curious about Professor Sunstein's current views is that he has just published an article in which he reads Hamdan to confirm the principle that "[i]f the president is acting in a way that threatens civil liberties, he will be probably lose unless Congress has explicitly authorized him to do that."

The Hamdan decision doesn't actually say that, and is not really about that question: The Court's holding does not depend on the absence of clear statutory authorization -- it turns instead on the fact that the President's commissions violated statutory limitations. But more to the point, even if Sunstein's characterization were apt, and clear stautory authorization is necessary in order for the Executive to infringe on personal freedoms, how can Sunstein adhere to his previous view that the vague and general authorization of the AUMF silently authorized the President to act in a way that would otherwise not only infringe on personal freedoms, but also transgress clear pre-existing statutory limitations?

Comments:

To conform to FISA, the program should be revised so that from this point forward the NSA (without agreeing that it ever has done such a thing) will not monitor international communications involving a US party where the communication is collected inside the US. This allows the program to continue but limits the source of data to those cases where FISA allows monitoring without a warrant (when the communication is collected outside the US). Remember, while the DOJ has clearly argued that the President had the right to collect communications without conforming to FISA, there has never been a government statement (or any other evidence from the NYT or any other source) that the program was ever actually in violation of FISA. This may require a change in the legal position, but no actual change to the program (assuming that the sources of intercept were always offshore but the government was unable to discuss "sources and methods" of intelligence).
 

there has never been a government statement (or any other evidence from the NYT or any other source) that the program was ever actually in violation of FISA.

But here's what Alberto Gonzales said just days after the story broke:

The President confirmed the existence of a highly classified program on Saturday. . . . The President has authorized a program to engage in electronic surveillance of a particular kind, and this would be the intercepts of contents of communications where one of the -- one party to the communication is outside the United States. . . . Now, in terms of legal authorities, the Foreign
Intelligence Surveillance Act provides -- requires a court order before engaging in this kind of surveillance that I've just discussed and the President announced on Saturday.


That sounds pretty definitive to me. Plus, if the administration wasn't actively violating FISA, while all the fuss? Why wouldn't they just say that what they are doing is not covered by FISA, but they can't go into specifics? They're clearly engaged in surveillance that violates FISA.
 

Seems to me that we should look at what the law says and not what the AG says it says. FISA covers "the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States". It also covers three other things, but they have nothing to do with the NSA program.
 

Howard: Do you have *any* reason to think that the NSA programs consist entirely of intercerptions that are effected outside the U.S.?
 

From the beginning the administration wanted to claim that it didn't have to follow FISA. If it admitted that the NSA program conformed to FISA (by collecting the data overseas and not monitoring domestic communication) that would have weaken their argument that they were legally authorized to break the law in the future. So the administration neither confirmed or denied that the NSA program violated FISA, and then launched this bizzare White Paper legal argument. Now that Hamdan calls the premise of that paper into question, we may ultimately have to fall back on the facts (or the complete lack of any facts) on the program itself.
 

Ann Beeson is arguing one of these cases Monday July 10 in Detroit, the international consultants case where the judge evidently is looking favorably on the chilled speech complaint, though the government is seeking to force the entire proceeding in camera closing the doors to the public. See her post today on MyDD.

Sunstein seems to have turned a corner, though remaining protective of academia. He had an interesting statistical post last week examining the zero tolerance paradigm the vice president has proposed as the litmus for success of antiterror policy.

I, too, read Stevens' simple statement as pinning Congress to its inability to pass a revised AUMF to cover fourth amendment concerns.

I expect most of the datamining cases, though, to bog down in the courts; for example, the ATT case currently proceeding in San Francisco.

It seemed to me the supreme court was willing to see if the executive and legislative can return to the bargaining table on many of these issues.

The former WHC who has a column on Findlaw wrote an interesting commentary last Wednesday regarding mistrust between Supreme Court and congress, though some of the material there elicits a smile.
 

In other words, Howard, the answer to my question was "no."
 

Howard,

Even if the intercept does take place outside the United States, so long as the target of the intercept is a U.S. person, FISA applies. There is no exception just because another party to the communication is outside the country.

That is part of the definition of "three other things" you imagine do not apply.
 

Marty,

Once one is willing to render any opinion so long as it is "colorable," one is freed from paying any attention to precedent. One need only distinguish some facts from the precedent and imagine it away. Any 1L can do that.

So long as one does not actually have to make one's argument in a real court, and only has to convince oneself that it is plausible, any argument at all can suffice to meet this administration's standard of law.
 

Right, the first of the other three things is "the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person". The problem with applying this case is that the NSA program starts with phone number and Email addresses collected from the personal effects of killed or captured members of Al Qaeda in Afghanistan or Pakistan. It is true that you can easily determine who a phone number belongs to, but it is even easier to do nothing. If your are very careful not to lookup the owner of phone numbers in the US, and though willful inaction you have not turned that number into a name, then you do not have a "particular known US person". More precisely, we don't know if any US numbers were captured, since the reported NSA activity could describe intercepts that involved US Persons who called or were called by phones in Pakistan. In that case the US Person was certainly not the target.

To Marty: I have absolutely no evidence that this program was conducted legally. Nobody else has presented evidence that it was conducted illegally. There certainly are some cowboys at the WH that would like to press the envelope here, but ultimately the US is a lousy place to try and intercept calls to the Middle East and Pakistan.

If the NYT or anyone else told me that the only calls intercepted involved US parties, then that woul make me suspicious that the intercept was in the US. However, every description has indicated that some (or maybe just a few) of the intercepted calls involved US persons. Any call that did not involve a US party had to be intercepted outside the US (unless you think that Al Qaeda gets a bunch of calls from South America or Japan that route through the US). If some of the calls were intercepted outside the US, as appears to be implied by every description of the program I have read, then maybe all of them were.

You get a lot more data if you intercept the calls in Pakistan (where the government owns the phone company) or in England, where all the US phone calls switch from transatlantic cable to the big internation cable that goes to the MidEast and Pakistan (though really this cable is famous for the traffic it carries to Bangalore, India). Now I have absoultely no evidence that MI 6 is monitoring the same traffic in the C&W switching facility at Land's End that the NSA is supposed to have monitored here in the US. However, even before the London Subway bombings MI 5 desperately wanted to know if anyone in the UK was calling Al Qaeda. Then they got the same list of numbers we got. The British people expect Her Magesty's Secret Service to use signals intelligence to capture enemy spies today just as they did so successfully in WWII. What is illegal here under FISA is protected there by the Official Secrets Act.

The result would be exactly the same as was reported by the NYT. The NSA computers would process copies of intercepted communications involving the captured numbers, including some communications involving US parties. The government would not be able to comment on stories, not because it had done anything illegal, but because part of any agreement with Pakistan or England would be that we would not disclose the source of the communications we received. Again there is no evidence that MI 6 did the intercept, but it is a much more sensible and obvious arrangment for NSA to work out than some crazy idea that career bureaucrats break the law for no reason at all other than to break the law.

Again, I cannot prove anything. Its just that every other possible explanation makes more sense, is simpler, cheaper, gets more intercept data, is reliable, has better operational security, and even costs less. The NSA would have to have been the dumbest collection of clowns in the intelligence business to have stumbled into the one possible way to carry out the operation that broke US law. It's just bad luck that, if they did carry this thing off legally, they cannot tell anyone about it without violating agreements with their sources.
 

Howard: The problem with applying this case is that the NSA program starts with phone number and Email addresses collected from the personal effects of killed or captured members of Al Qaeda in Afghanistan or Pakistan.

You know this how? I am aware of no authoritative statement that all intercepts originated this way, although the scenario has been mentioned as a possibility for some intercepts. The U.S. phone numbers may simply be harvested from traffic.

In any case, however the U.S. phone numbers or email addresses are known, even if the persons names are not known -- and the law does not say they have to be to qualify as "targeting" -- the only way they could not belong to a "United States person" would be if all such persons were illegal aliens. I cannot imagine any court accepting that fanciful and unreasonable assumption.
 

You have to use some historical perspective. FISA was passed in 1978 after it was discovered that the FBI used a pretense of "national security" to spy on political enemies. It was written to foreclose any possible means by which this abuse of power could be repeated. The purpose of this rule is so that the NSA cannot intercept all international calls to or from Jack Balkin at a point 12 miles off shore and say that its legal because its not in the US. The key phrases here are "a particular, known United States person" and "intentionally targeting that United States person". A requirement that the identity of the intercept target not be known insures that the program cannot be used against political enemies.

Obviously, if the Pakistani ISI broke into the room of Marty Lederman who was visiting Karachi and they dumped out the memory of his cell phone, then there is a good chance they would get Jack's phone number without having his name. If the NSA acted on this, it would violate the purpose of FISA. This is where the 45 day review and the professional analyst come in to ensure that the target of the investigation are overseas terrorists and not visiting professors.

However, as FISA is written there is nothing to prevent the NSA from unknowingly intercepting international calls to and from Jack's phone if that phone number appears (for whatever reason) on some papers carried by a captured terrorist. The key point here is that they can, under the law, listen in without a warrant only as long as they have absolutely no idea who they are listening to.

They can also listen to calls, even if they have Caller ID and know who is calling, provided that the clear target of the investigation is the guy overseas. So if I call Osama on my cell phone, it doesn't matter if they know who I am or not just as long as Osama is the target and not me.

You may not like this, but FISA was not written to protect privacy. It was written to prevent spying on political enemies. If you want something else you have to pass a different law.
 

Howard,

That is hogwash. By the plain language of FISA, the statute does not require the name of the target to be known. In fact, it explicitly contemplates the opposite in its warrant-application requirements, which include:

the identity, if known, or a description of the target of the electronic surveillance; 50 USC 1804(a)(3)

No court would accept your imaginary interpretation of the law. It does not permit fishing expeditions just because the government doesn't know the target's identity.
 

There are four criteria. One of them applies to international calls collected overseas and requires that a US party be a specific, known person who is the target of the investigation in order for a warrant to be needed. The other three do not require identity: installing bugs, monitoring domestic calls, or monitoring international calls when the point of the intercept is in the US. These last three require a warrant when you may not know the name of the target. Remember FISA is about national security intellegence operations, not criminal investigations. In this one specific case, the information is gathered overseas by a US government agency. This creates a special circumstance for any court, since normally even the Fourth Amendment doesn't extend to activities conducted entirely in Pakistan, possibly with the participation of the Pakistani government.
 

Howard,

You are just making up language and pretending that it is contained in FISA's definition. That definition does not require "that a US party be a specific, known person" at all.
 

The original post refered to "FISA's express provision that FISA and title 18 prescribe the 'exclusive means' of engaging in electronic surveillance". The problem with this oft quoted section is that FISA defines 'electronic surveillance' to mean four specific things, and every other form of electronic surveillance as you or I would define it is not covered by FISA's "exclusivity". It is the exclusive means by which four specifically enumerated things may be done. Leaving out the part on bugging offices, the rest are:

FISA § 1801. Definitions
(f) “Electronic surveillance” means—
(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;
(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511 (2)(i) of title 18;
(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States

So among other things, FISA does not cover intercepts of communication between two parties, no matter who they are, if both are outside the US. It does not cover intercepting an international phone call involving a US person if 1) the person is not the target of the investigation and 2) the communication is collected outside the US. That could describe the entire NSA program.
 

Didn't Bush say something like "If you are talking to al Qaeda, we want to know why?"

This comment seems to suggest that the purpose of the program was to identify US persons with ties to al Qaeda, and to figure out the reasons for these ties.

Howard's reasoning appears to be that FISA requires that you identify who you want to get a warrant to listen to, but because you don't know in advance exactly who you are listening to, FISA doesn't apply. So the specific person requirement, which is meant to ban fishing expeditions, is turned on its head: fishing expeditions are allowed, actually encouraged.

It is more likely that FISA says that if you spy on a US person who is in the USA, you have to know who the person is, and then you have to get a warrant signed by a judge, then you can spy on them.
 

Howard,

That language about "any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States" defines a point-to-point communication -- that is, a phone call or email, as distinct from a radio broadcast or web site, for example. The identity of that recipient is known to the sender, whose intent to communicate with a particular party is what is referenced. That definition describes, in part, the type of communications covered by FISA.

The language does not require that the government know the identity of such a person in order for that person to be considered a target in a covered intercept. In fact, the context of 50 USC 1804(a)(3), which I quoted above, clearly shows that a person can be considered a "target" even if his identity is not known to the government. The government in its warrant application instead can provide a "description" of the person, such as "the man who makes and receives calls at the phone number 212-555-1111." Of course, the warrant application also would have to include evidence establishing probable cause that that described person is an agent of a foreign power. Such evidence likely does not exist at the time of the intercept, but that is another issue.

The FISA definitions do not provide a blanket loophole allowing warrantless wiretaps just because the U.S. targets have not yet been identified by name. It is not legal, for example, for the government to intecept without a warrant all international calls from a U.S phone booth, because each of the callers still has a reasonable expectation of privacy. Each of them is being targeted when the phone booth is tapped.
 

Marty:

Any reaction to the NYTimes report that in response to a question at a Chicago press gagle, the president said about Hamdan:

"I am willing to abide by the ruling of the Supreme Court," the president said.

Doesn't sound as though he believes he's "bound" to follow SCOTUS.
 

"defines a point-to-point communication -- that is, a phone call or email, as distinct from a radio broadcast or web site, for example"

Much as I might be reassured by the idea that even US law is not stupid enough to require a government agency to get a warrant to watch Desperate Housewives or read cnn.com, I am not aware of any large body of case law suggesting the contrary.

Also, in order to apply this interpretation of the law, we have to know whether the person placing the call actually knows the identity of the person he is calling, or just has a phone number he is supposed to call to trigger the operation. One gets images of the 1977 Charles Bronson movie Telefon where the bad guy calls the phone number of sleeper agents and then quotes a piece of Robert Frost. Did Dalchimsky know or need to know the identity of the people he was calling? Is this really what FISA is about?

The law doesn't say "a particular US person known to the caller". Neither does the Fourth Amendment say that the search has to be reasonable "to your next door neighbor".

Another post got it right. This is a law that favors fishing expeditions based on vague criteria. The more specific you get, the more hoops you have to jump through. This makes absoultely no sense if you continue to believe that FISA is about protecting privacy. Instead, it is about preventing the goverment from abusing its enormous power to target political enemies. Under FISA the NSA is free to set up a station overseas to listen in on all calls from New Haven to Karachi (assuming there is reason to believe that this will help stop an attack). What make this legal is the very high probability that it will intercept phone calls between the guys who run the Indian food cart next to the School of Management, and the very low probabiliy that it will pick up a call from Al Gore. In the calculus of National Security, if they have to sift through a thousand personal calls to family and find one Al Qaeda operative about to trigger a bomb, this is a perfectly legal operation, even under FISA. You may disagree with the calculus, but FISA wasn't written to do what you want it to do.
 

Howard,

Your interpretation of FISA is so specious that even the administration does not adopt it. DOJ has never claimed that FISA itself allows warrantless fishing/eavsdropping such as you describe. AFAIK, your far-fetched statutory theory is held uniquely by yourself.

Of course, your theory breaks down anyway as soon as the NSA actually learns who is on the phone or owns the phone account. You would have us believe that the government never cares, which rather begs the question about what the surveillance is for.

Another problem of legal construction is that FISA is one large exception carved out of Title III. So any surveillance of communications in interstate or foreign commerce that fails to meet FISA's technical definition of "electronic surveillance" -- as you claim is the case -- then falls through and is governed by the overall requirements of Title III, which broadly forbid warrantless surveillance.
 

A lot of background material can be found in a study which has been broadly critical of the DOJ legal position:

Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information
Congressional Research Service - Jan 5, 2006

With regard to the Title III - FISA fallthough they point out that the law says in § 1511(2)(f)
"Nothing contained in [chapters 119 (Title III), 121 (stored wire or electronic surveillance or access to transactional records) or 206 (pen registers and trap and trace devices) of title 18, U.S. Code], or section 705 of the Communications Act of 1934,61 shall be deemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, and procedures in this chapter [119] or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted."

[So while it may be true that any form of domestic wiretapping falls through to Title III, any form of foreign intelligence wiretapping that occurs overseas is excluded from Title III unless it falls under the four part definition in FISA. If you doubt this, then answer the question: Which US District Court has jurisdiction to issue a warrant to wiretap a phone in Karachi Pakistan?]

The report also point out many comments by Congressional committees about the limits of the FISA definitons as they were writing the legislation:

79 For example, in discussing the definition of “electronic surveillance,” in H.R. 7308, the House Permanent Select Committee on Intelligence stated,

"Therefore, this bill does not afford protections to U.S. persons who are abroad, nor does it regulate the acquisition of the contents of international communications of U.S. persons who are in the United States, where the contents are acquired unintentionally. The committee does not believe that this bill is the appropriate vehicle for addressing this area. The standards and procedures for overseas surveillance may have to be different than those provided in this bill for electronic surveillance within the United States or targeted against U.S. persons who are in the United States."

[The quote goes on to suggest that some legislation may be in order and that the decision not to cover this in FISA was not an endorsement of every possible foreign surveillance, but no other bill was ever passed.]

80 The House Permanent Select Committee on Intelligence described the import of “intentionally targeting” in the context of subsection (1) of the definition of “electronic surveillance” as follows:
"... The term “intentionally targeting” a particular, known U.S. person who is in the United States includes the deliberate use of a surveillance device to monitor a specific channel of communication which would not be surveilled but for the purpose of acquiring information about a party who is a particular, named U.S. person located within the United States."

[So the authors even added in their comments the "particular, named" constraint even though "named" never made it into the language of the law.]

My purpose here is not to argue "legislative intent" which has few adherents these days. It is to point out that, far from me making these questions up, the questions were placed on the table from the very beginning by the authors of FISA themselves. The administration isn't arguing my points because they state instead that they can ignore the law completely. If you take that position, you certainly don't get bogged down in the fine points of definitions.
 

Howard,

I confess that I now find your theory interesting if not finally persuasive. It does seem to be limited to the narrow special case before the government knows anything about the identity of the U.S. person being intercepted, even when it knows and targets his phone number. Once the government knows that identity -- or possibily even when it is readily knowable from open sources such as phone directories -- the rationale for the loophole evaporates.

I am interested enough to explore the possibility that such a loophole has been exploited all along in practice since 1978. Are you aware of any reputable reportage, such as in Bamford's books, to that effect? It has been no secret that U.S. based international traffic has been legally intercepted abroad when the target is abroad; I am interested in examples where the U.S. phone number was actually targeted while the U.S. person's identity was technically not known.
 

It has been generally reported that from 1978 until 9/11, the NSA operated under Presidential Directives that were more strict than the limits of FISA. They ordered that conversations not be collected if there was a US party on the line. It may just be a joke, but the story goes that when Osama wanted privacy he conferenced in some guy in the US, to force the NSA to stop listening in. So I don't think there are any older cases where this question was tested.

The only actual news in the NYT story last Dec is that after 9/11 the President issued a new directive ordering that monitoring continue even though a US person may be a party to the conversation. In other words, an older "conservative" (not in the political sense) policy to avoid any adverse political fallout was replaced by an agressive policy to, depending on your point of view, either bump right up against the line of what is legal, or else to cross it, and either way damn the consequences.

Do not forget my earlier hypothesis. There are pubished sources that say that the US and MI 6 have agreed in the past that we will do things that are illegal for them, and in exchange they will do things that are illegal for us. Since all the traffic between the US and the Middle East routes through the Land's End switches, the really safe strategy would have been to let MI 6 do the intercept and then send us a copy of the traffic. There is no interpretation of FISA that covers such an operation, since FISA covers only the intercept and not what the NSA can do with their computers and data collected by another government.

We can not say based on what we know if the NSA operation did or did not fall within the scope of FISA. Even if we were to agree what the FISA bounds are, nobody who knows how the NSA operation was run is talking. However, there appears to be enough slop both in the FISA boundaries and in the many ways the operation could have proceeded that we should be able to agree that the NSA could have done everything it did legally (with the MI 6 trick as proof that there is a way completely around the law).

So if you don't like what the NSA did, you have to create some new law. That is what the Congressional Committee said was needed in 1978, and that is what various Senators are trying to do today. Rather than making the NSA operation retroactively legal, almost every bill proposed actually fills in some part of the massive omissions originally designed into FISA.

If you accept the myth that FISA protects privacy, then you also accept the claim that the Senate's proposed changes relax rather than tighten the FISA regulatory system. Then you start to work against the only hope that there will actually be at least programmatic oversight of foreign communications intercepts by the FISA court. Congress loves to do nothing, and in this case if both the liberals and the conservatives decide, for entirely different reasons, to block reform I am sure all the Senators will be happy to go back to earmarking pork.
 

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