an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
A bit of background. In January of this year, the Bush Administration, without conceding that its program was illegal, agreed to submit its surveillance program (modified or not, we do not know) to review by the FISA court under an innovative new theory for court orders. A judge on the FISA court approved it, but when a new judge was rotated on to the court, he or she said that parts were illegal.
Key issues apparently arose from the fact that the Administration wanted to target information coming through fiber optic cables routing to telecommunications switches inside the United States. By targeting these switches, the Administration hoped to gain access to foreign communications that had been routed into the U.S. even though both parties are outside the U.S.. If that was all that was at stake, it would be fairly easy to get Congress to agree to amend FISA to allow warrantless surveillance as long as no U.S. persons located in the U.S. were involved.
However, the federal judge apparently objected to more than this. Apparently, the court objected to a procedure in which the Administration sought a "basket warrant" for multiple targets (instead of individual targets as generally required by FISA) and tapped multiple conversations where one end was foreign and it did not know where the other end was located. In some substantial number of cases, the surveillance might route through the United States, or, even more seriously, involve calls with at least one party in the U.S.
Note that FISA actually permits electronic surveillance that runs through the U.S. or involves a person within the U.S. if a judge believes that FISA is otherwise satisfied and grants a FISA warrant. The government has to show probable cause that "(A)the target of the electronic surveillance is a foreign power or an agent of a foreign power . . . and (B)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."
So put two and two together: Neither of the judge's two objections to the program would be a problem if the above criteria were met. That suggests that the "basket warrant" program didn't satisfy one of requirements for warrants under FISA. And because the judge couldn't issue a FISA warrant, the judge had to review the program to the rules for warrantless surveillance.
Or to put the matter slightly differently: if the government actually had proof that one end of each phone call it sought to monitor always involved a foreign agent, courts would order FISA warrants regardless of where the calls traveled and regardless of who was on the other end or where they were located.
Why might the government not have such proof?
Here are two possible explanations (They are not the only ones). First, many or most of the targets in the basket were not identified so that there was an insufficient showing of probable cause with respect to each of them (or perhaps all of them).
Second, some of the targets of surveillance may not have been themselves Al Qaeda agents, but rather people whom the government believed (through pattern matching or other forms of data mining) were occasionally in contact with foreign agents. That is one way that the government's analysis of phone records might have led the government to pursue a program that was illegal under FISA.
If either of these is the case, then it suggests that the basket warrant program the Administration agreed to in January of this year never really complied with the standards for FISA warrants in the first place.
As a result of the secret opinion, Congress is considering a number of proposals. The easiest one to pass will state that where the call is routed does not matter as long as the ends of the call are outside the U.S.
But the Admininistration wants far more. One current proposal before Congress would allow courts to OK basket warrants where the FISA court determined that those being targeted are "likely" to be overseas. And if the number of communications to a person inside the U.S. turns out to be "significant" (a term that is undefined)-- the court would need to issue a new warrant based on probable cause as to each target within the U.S. The authority to issue basket warrants would have to be revisited every six months.
Republicans on the Hill have argued that the Attorney General should make the determination whether the targets are "likely" overseas (and perhaps whether there are a significant number of U.S. contacts-- this was not clear). This proposal is a nonstarter for the Democrats, for obvious reasons. It puts Alberto Gonzales in charge of making determinations that will increase or decrease the Administration's power to engage in surveillance. This would not be oversight. It would be undersight. Indeed, it would be deliberate blindness. Posted
by JB [link]
How much "oversight" did Congress have over the broken Japanese codes during WWII? You people have no idea how to defend a country, do you?
I'm just grateful these Dems were not in charge during WWII -- can you imagine, Bart, the damage they would have done? They would have prevented Yamamoto from being killed because no warrants were issued in that case either!!!
It is stunning to note the 180 degree difference between the icon Dem of last century - FDR - and a sample of today's castrati Dems - Obama.
When the Elephant President Bush adopts the tactics of FDR, he is called a fascist by Dems like Obama.
Professor Balkin: Republicans on the Hill have argued that the Attorney General should make the determination whether the targets are "likely" overseas (and perhaps whether there are a significant number of U.S. contacts-- this was not clear). This proposal is a nonstarter for the Democrats, for obvious reasons.
This should be a non-starter for both parties, which is to say, this shouldn't be a partisan issue. No responsible jurist or legislator would suggest changing the burden of proof in criminal cases to "preponderance of the evidence" nor undo the rebuttable presumption of innocence. Neither can any responsible legislator or executive or jurist argue for wholesale governmental intrusions into private communication of citizens, nor for a combination of sham burdens and presumptions which give the government a free pass for such intrusions. In all such cases the likelihood of eventual governmental abuse is too great, no matter which party happens to hold sway at the moment.
Those who don't fear eventual government abuse typically fall into one of two categories: a) The "it can't happen here" crowd, which believes we are categorically the "good guys" and which insists on viewing Nixon and cointelpro and the Red scares as isolated incidents from their history books, and b) the "if it happens here it'll only happen to 'them', those bad people who aren't like me" crowd. Neither position is tenable upon serious reflection.
From a political viewpoint, it looks like the Bushies were too cute by half.
It appears that Justice found a compliant FISA judge and thought that they had out maneuvered the civil suits seeking discovery on the TSP and the Dems in Congress by placing the NSA program under the FISC. However, another far more aggressive judge has rotated into the FISC and hamstrung parts of our NSA foreign intelligence gathering.
That is what happens when the President concedes his CiC power to direct foreign intelligence gathering to the courts. From a political standpoint, Bush cannot easily withdraw the TSP again from the FISC. NSA's only hope is that Mr. Bush can politically blackmail the congressional Dems into reversing this facially ridiculous FISC decision.
What should make this development at the FISC particularly galling for Justice is that they did not need to place the TSP under the FISC in the first instance to avoid the courts ordering disclosure of top secret materials in civil suit discovery because the 6th Circuit threw out the only adverse decision on standing grounds.
The Executive should have stood by its original principles. Now the country is paying the price.