Friday, October 10, 2008

Was NSA's Indiscriminate Wiretapping of Americans Overseas Illegal?

Marty Lederman

ABC News reports that the NSA has for years been engaged in what appears to be a fairly indiscriminate program of wiretapping hundreds of U.S. citizens' satellite communications to the United States from places overseas. This was done without any evidence that the targeted Americans had anything to do with terrorism, let alone al Qaeda and the Taliban. And one of the sources relates that he and others in his section of NSA "routinely shared salacious or tantalizing phone calls that had been intercepted."

I'm not sure this is really breaking news -- One of ABC's principal sources has been saying this for almost a year now.

More importantly, was this legal? An NSA spokesman says that "the law was followed assiduously."

Was it?

Two misimpressions to get out of the way at the outset:

First, this probably didn't violate FISA. When it enacted FISA in 1978, Congress decided that the statute would not cover surveillance that occurred abroad, especially via satellite -- even if that surveillance targeted U.S. persons overseas. It's not that Congress thought the NSA should be completely free to engage in overseas surveillance; indeed, the House Intelligence Committee specifically noted that the legislature's decision not to regulate surveillance abroad "should not be viewed as congressional authorization of such activities as they affect the privacy interests of Americans. The committee merely recognizes at this point that such overseas surveillance activities are not covered by this bill." The topic was thought to be more complex than domestic surveillance, and touching on more classified NSA programs, and so Congress committed to addressing it distinctly in future legislation -- something it did not get around to doing for 30 years. (The recent FISA amendments are the first statutory regulation of surveillance of U.S. persons overseas.)

Congress thought that it could put off legislation in 1978 because it could rely on regulatory restrictions already in place -- the Committee noted "with approval that electronic surveillance of American citizens while abroad has been limited in part both by the President's Executive Order applicable to the U.S. intelligence community and by procedures approved by the Attorney General." More on that below.

Second, because FISA didn't cover this surveillance, it probably was not part of the NSA's so-called "Terrorist Surveillance Program," as described by Attorney General Gonzales. Indeed, it appears to have been not nearly as tailored as even that very indiscriminate program.

So what law did regulate such surveillance? Two things:

1. Executive Order 12333. Executive Order 12333 is a follow-on Executive Order that replaced the one that was in place in 1978 (E.O. 12036) -- the E.O. that gave Congress assurance that surveillance of Americans overseas would be sufficiently regulated. Section 2.5 of E.O. 12333 provides:
The Attorney General hereby is delegated the power to approve the use for intelligence purposes, within the United States or against a United States person abroad, of any technique for which a warrant would be required if undertaken for law enforcement purposes, provided that such techniques shall not be undertaken unless the Attorney General has determined in each case that there is probable cause to believe that the technique is directed against a foreign power or an agent of a foreign power.
(The AG has subsequently authorized NSA to engage in such surveillance before obtaining the AG's sign-off in certain limited and time-bounded situations.)

In addition, United States Signals Intelligence Directive 18 imposes "minimization" requirements that almost certainly would prohibit the sort of uses of U.S. persons' communications that are described in the ABC story.

Therefore, if this story is true, it appears the NSA violated E.O. 12333 and USSID-18 -- assuming, of course, that President Bush did not secretly authorize the NSA to disregard such directives, something that Senator Sheldon Whitehouse has been suggesting. As I've explained earlier (see Point 3 here), that should be something that angers Congress, if it is true. This is probably the real, big news behind the ABC news story: If the President secretly undid E.O. 12333, this is precisely the sort of abuse that one would expect.

2. The Fourth Amendment. The leading -- indeed, virtually the only -- case on the question indicates that the E.O. 12333 requirement that the U.S.-person target of such overseas surveillance be an agent of a foreign power, is also a Fourth Amendment minimum. That court held that such surveillance of U.S. persons overseas can be done without a warrant only (i) when authorized by the President or the Attorney General; (ii) when conducted primarily for foreign intelligence purposes; and (iii) when targeted at foreign powers or their agents, including American citizens believed to be agents of a foreign power. See U.S. v. bin Laden, 126 F. Supp. 2d 264, 277 (S.D.N.Y. 2000).

Assuming that some or all of that holding is correct, then the NSA activity described by ABC News would appear to violate the Fourth Amendment, too, even if it did not violate FISA.


The reported surveillance likely falls outside the EO and the 4th Amendment for two reasons:

1) There is no 4th Amendment requirement for a warrant for the military to surveil its own telecommunications because the users of such telecommunications do not have a reasonable expectation of privacy. This would especially be true in a foreign battlefield environment such as the Green Zone. The military has routinely monitored its own telecommunications for operational security from the beginning of such communications.

2) Blanket surveillance of foreign telecommunications of the sort that NSA was created to perform, with the purpose of intercepting foreign enemy communications and not specifically targeting Americans who enjoy 4th Amendment protections, should not require a warrant even if Americans happen to enter into these telecommunications. To hold otherwise would require a warrant for any ELINT anywhere around the world where an American might enter.

3) To the extent that the reported intelligence gathering violated a minimization order, it is a matter of discretion by the chain of command to impose UCMJ discipline for violating such an order. This is not a civilian criminal or a constitutional matter.

U.S. v. Bin Laden, 126 F.Supp.2d 264, 277 (S.D.N.Y. Dec. 5, 2000):

B. Adoption of the Foreign Intelligence Exception to the Warrant Requirement

[47] In light of the concerns outlined here, the Court finds that the power of the Executive to conduct foreign intelligence collection would be significantly frustrated by the imposition of
a warrant requirement in this context. Therefore, this Court adopts the foreign intelligence exception to the warrant requirement for searches targeting foreign powers (or their agents) which are conducted abroad. As has been outlined, no
court, prior to FISA, that was faced with the choice, imposed a warrant requirement for foreign intelligence searches undertaken within the United States. With those precedents as guidance, it
certainly does not appear to be unreasonable for this Court to refuse to apply a warrant requirement for foreign intelligence searches conducted abroad.

[48] At the same time, the Court is mindful of the importance of the Fourth Amendment interests at stake. In keeping with the precedents reviewed above, the warrant exception adopted by this
Court is narrowly drawn to include only those overseas searches, authorized by the President (or his delegate, the Attorney General), which are conducted primarily for foreign intelligence
purposes and which target foreign powers or their agents. See Truong, 629 F.2d at 915-17. The protection of individual rights in this context is not a significant departure from that which is envisioned by the Fourth Amendment. All warrantless searches are still governed by the reasonableness requirement and can be
challenged in ex post criminal or civil proceedings.

I do not see the evidence that the reported surveillance was targeting innocent Americans for for something other than foreign intelligence purposes. These appear to blanket surveillance of overseas military and/or foreign civilian telecommunications nets to gather foreign intelligence.

Ah, but there are the representations made about privacy.

We can reconcile that, however. All of those representations were simply lies and/or misleading the American people by our President, an act for which there will be no accountability. Now everything is reconciled. Feel better?


Doesn't your point (1) make a big assumption, namely that these communications were made using military resources? I would buy that for the surveillance of servicemembers (who are subject to monitoring to enforce OPSEC restrictions and who usually use military communications networks), but what about the journalists and NGO employees? They probably (hopefully) don't rely on the military to provide communications.

"These were just really everyday, average, ordinary Americans who happened to be in the Middle East, in our area of intercept and happened to be making these phone calls on satellite phones," said Adrienne Kinne, a 31-year old US Army Reserves Arab linguist assigned to a special military program at the NSA's Back Hall at Fort Gordon from November 2001 to 2003.

The key words here are "happened to be in the Middle East, in our area of intercept..." Americans are not being targeted. The NSA conducts massive blanket surveillance of overseas telecommunications for foreign intelligence purposes. That is the primary purpose for which Congress created this agency. To the extent that Americans use foreign telecommunications, they have always and will continue to incidentally fall under this surveillance.

As the SDNY court acknowledged, "[T]he power of the Executive to conduct foreign intelligence collection would be significantly frustrated by the imposition of a warrant requirement in this context." This is actually an understatement. NSA would literally be out of business if it was required to obtain a warrant to perform blanket surveillance of foreign telecommunications because an American might happen to use them.

Nothing here is new. For those who were ignorant of this fact before, when you are overseas and make a telephone call, fax or email, the NSA and dozens of foreign intelligence agencies could be listening in. If you want your telecommunications to be private, use a good encryption device or program.

dm said...

Doesn't your point (1) make a big assumption, namely that these communications were made using military resources?

Not all of them. Green Zone landlines from US controlled phones are most likely controlled by the military. Satellite and local telecommunications are not. Most likely NSA or DIA ELINT assets are monitoring these lines as part of their mandate to conduct foreign intelligence gathering.

It is not "incidental" to not only pick up, but transcribe and preserve known US citizen to US citizen communications, with knowlege that one half of the communication was a US citizen on US soil, whose communications were being surveilled by US gov agents ALSO on US Soil.

All with no probable cause of any kind to believe that the US persons, in the US, whose communications were being the target of full transcription and circulation and retention, were agents of a foreign power.

"Blanket" sureveillance that inadvertently picks up a US citizen on US soil communication is required to black it out, not include it in transcriptions, and not retain it in order to comply with the Fourth Amendment and these are the types of procedures taht existed, once up on a time.

I don't believe there is any valid argument that the NSA was "created to perform" blanket vacuuming or driftnetting of all communications, including US citizen on US soil communications, with that somehow being ane elemnet of fulfilling the "purpose of intercepting foreign enemy communications"

Supervisor were specifically told of US citizen to US citizen on US soil calls involving aide workers for NGOs and their friends and family in the US and the illegal surveillance was order to continue with the same effect as if they were targets and with full transcription.

To the extent that US citizens on US soil were being subjected to violations of the 4th amendment by agents of the US gov on US soil - uh, yeah, it is a "civilian criminal or constitutional" matter and if the orders being violated were issued by domestic courts, that much more so. Whether or not the agency involved also took administrative action via an option available to it - such as the UCMJ if applicable (and with surveillance of US doctors and their US families being so ultra vires to nay military function I don't buy that) that still doesn't address the redress available to the US citizens vis a vis the civilian portions of the chain of command (and possibly even the direct actors) conspiring to bring about and ordering the unconstitutional surveillance.

OTOH, I guess with both Presidential candidates being big proponents of amnesty for Presidentially ordered crimes, it's not like it matters much.

The fact that Bart's arguments are the same vapid gibberish you would get from an Aryan Nationalist doesn't really, in the end, mean much. Bc the truth is that no matter how flat out stupid, vain, depraved and unwise and no matter how much "law" is aligned against the Philbin and Flanigan and Yoo and Goldsmith (his "improved" version was the one tossed as unconstitutional by the only court to review it on the merits) make believe, the stain is and it will remain.

Everyone who thought that depravity should be met with polite discourse, and in particular the completely useless and worthless Congress, lost the war, even while patting themselves on the back for "winning" the battles.

The fact that through the whole of the DOJ, not one person did what JAG and state dept employees did - publically resign and rebuke - that shows the depth and breadth of the loss right there.

People like Bart handed took the United States Constitution from the puzzled and perplexed criminals and said, "hey, you want to destroy this, let me do that for you"

And they were not only allowed, but encouraged and later given sinecures and the backhanded approval of being treated as if they could still be allowed to argue as to the meaning of what they were actively destroying.

The reason that Bart and Yoo et al can ramble on and on is because the country forfeited the match to them and the polite "left" and Obama and in particular the instituations of Congress and the DOJ failed.

With enough time and money and effort you can raise what's left of the Titanic, but why? To prove that, "intellectuallY" it couldn't have actually sank?

We sank. Congress and the DOJ were just the anchors they chose to wrap around the few survivors before sending them down too.

So it doesn't matter that Bart always loses the arguments.

Siddiqi's children, KSM's children, the "young detainee" deliberately frozen to death, the million plus Iraqi refugees, the rows of coffins at Arlington, and the smug and unrepentant Bush, Cheney, Addington, Yoo, Flanigan, Philbin, Goldmsith, Comey, Thompson, Gonzales and in particular, Ashcroft.

There's a reason Bart doesn't care about losing all the battles. Congress and the DOJ forfeited the war. It is what it is.

Well gee Mary, I understand your bitterness but I have to point out...

1) Some of us have been fighting these gangsters from day one.

2) The war isn't over. Indeed, though I don't talk about it much because it's such a huge and difficult topic, this war started well over 4,000 years ago.

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