Terrorist Surveillance Program . . . Never Mind? Or New and Improved (and "Complex and Innovative")?

Marty Lederman

Hmmmmm . . . this is a twist. The President has "determined not to reauthorize the Terrorist Surveillance Program when the current authorization expires," and the Department of Justice will now submit its surveillance applications to the FISA Court for approval. Indeed, this volte-face apparently is the result of the fact that DOJ has convinced a FISA judge to issue "innovative and complex" orders in one precedential case already. So says a new letter from the AG to Senators Leahy and Specter.

According to the letter, the FISA court seems to have approved orders finding that at least part of the FISA statutory standard was [would be?] satisfied -- that "one of the communicants is a member or agent of Al Qaeda or an associated terrorist organization." (That's not quite the statutory standard, which requires that the target of the intercept be such an agent, and also that "each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power.") It apparently took "considerable time and work" for DOJ to persuade the FISA judge to go along with whatever this newfangled sort of approval is. (According to Tony Snow, the FISA Court has promulgated "guidelines" and "rules" to govern this new form of approval.)

The ACLU case challenging the legality of the TSP is, at least for now, scheduled to be argued before the U.S. Court of Appeals for the Sixth Circuit in two weeks. And a decision in a related case is pending before Judge Lynch in the Southern District of New York. Does this development moot those cases? [UPDATE: DOJ has informed the court of appeals that it intends to file both classified and public papers soon "addressing the implications of this development on the litigation."]

Is the FISA court being asked to determine whether partilcular instances of surveillance satisfy FISA's substantive standards? (Presumably, but who knows?) To somehow do so on a category-wide basis, issuing generalized rather than case-specific orders? (That would be "innovative," that's for sure! Hard to see how the statute would allow it.)

[UPDATE from the NYTimes:

Justice Department officials said that the FISA court orders, which were not made public, were not a broad approval of the surveillance program as a whole, an idea that was proposed last year in Congressional debate over the program. They strongly suggested that the orders secured from the court were for individual targets, but they refused to provide details of the process used to identify targets — or how court approval had been expedited — because they said it remained classified. . . .

Justice Department officials would not describe whether the court had agreed to new procedures to streamline the process of issuing orders or accepted new standards to make it easier for the government to get approval to monitor suspect e-mail and phone communications. But the officials suggested that the effort to obtain the court’s approval for orders on Jan. 10 was not easy. “These aren’t some sort of advisory rulings,” one official said. “These are orders issued by the FISA court, not some cookie-cutter order. These orders are complex. It took a long time to work on this.”

The officials said the new approach was based on evolving legal interpretations of the foreign surveillance law by the Justice Department, changes in the foreign surveillance statute in recent years and precedents set by the FISA court in approving specific requests to conduct electronic monitoring.

The transcript of the background conference call with DOJ officials is here. The officials there claimed that the new procedures "will comply in all respects with the requirements of the FISA statute," and that the FISA court is making probable cause findings pursuant to statutory standards. One official did stress, however, that the orders "take advantage of . . . developments in the law before the FISA court." In other words, the FISA court apparently has been persuaded that in some respects the FISA statute is more forgiving than previously understood -- that it demands less proof or proof of a different kind than what the court once required. Orin Kerr provocatively surmises that perhaps what's going on here is a form of anticipatory warrant. It's unlikely that we'll know the details of this secret new internal law of FISA anytime soon.]

Why didn't this happen years ago? Might it have something to do with the prospect of a possible big government triple-loss on (i) state secrets privilege; (ii) FISA; and (iii) its article II arguments -- a development that DOJ would understandably be eager to avoid?

Curiouser and curiouser . . .

[UPDATE: Without knowing anything more about it, my sense is that this is probably a beneficial development, whatever its impetus might have been. I find it very difficult to imagine that the FISA court would roll over and approve an "innovative" legal theory if it were dubious -- especially not in this context, where DOJ has many incentives to get the FISA court on-board and where the congressional and public spotlight is shining so brightly. Without the New York Times, and Judge Taylor, and the 2006 election, this would never have happened. Sunshine is the best disinfectant, and all . . . . Even though the public might never find out exactly what's up here, presumably Congress and the FISA court are now acting as some not-insignificant checks. And if so -- if the extreme and unilateral positions of the Executive are a thing of the past here, the system has worked.

But that's only a tentative judgment, of course.]

[QUESTION FOR OLD-SCHOOL FISA INSIDERS/OLD-TIMERS: Would we have gotten to this point, say, five years ago, and avoided the whole constitutional crisis, if Mary Lawton were still alive?]

ANOTHER GOOD SIGN:

This press release from the new Chair of the House Intelligence Committee, Silvestre Reyes:

For the past year, since the disclosure of the President's warrantless surveillance program, I have urged the Administration to seek warrants from the Foreign Intelligence Surveillance Court before eavesdropping on the American people. Today, the Director of National Intelligence informed me that the Administration has heeded this advice and will now seek court authorization for all surveillance conducted under this program.

This decision is welcome news, if long overdue. It proves that this surveillance has always been possible under the Foreign Intelligence Surveillance Act (FISA) and that there was never a good reason to evade the law. I commend our former Ranking Member Jane Harman, who pressed the Administration for months to bring this program under supervision of the FISA Court.

This announcement does not end our Committee’s interest in this matter. Until our Committee has the opportunity to review the Court orders and conduct in-depth oversight over this program, I am withholding judgment on whether it is effective and whether it protects the rights of the American people.

The President still insists that he has the inherent authority to conduct surveillance of Americans without court warrants. I strongly disagree and believe that FISA remains the exclusive way to conduct electronic surveillance of Americans.

I also recognize that the effort to bring this program under FISA required a great deal of work by the Attorney General and his team, and I am hopeful that the decision to comply with FISA will demonstrate a renewed commitment to the Constitution and the rule of law.

YET ANOTHER . . . apoplexy over at the National Review:

What is the White House thinking? Is there no principle subject to negotiation? Is there no course subject to reversal? For the Bush administration to argue for years that this program, as operated, was critical to our national security and fell within the president's Constitutional authority, to then turnaround and surrender presidential authority this way is disgraceful. The administration is repudiating all the arguments it has made in testimony, legal briefs, and public statements. This goes to the heart of the White House's credibility. How can it cast away such a fundamental position of principle and law like this?

Posted 2:17 PM by Marty Lederman [link]