by John Yoo
Recent history certainly has to make anyone wary of increased state police powers in any form. Yet it is also true that American law and politics have evolved since the days of the Alien and Sedition Acts, which prohibited criticism of the government during the 1798 Quasi-War with France, or the Palmer raids, which rounded up communists after World War I. Abuses that occur today are more likely to be isolated and individual acts--mistakes--rather than wholesale deprivations of civil liberties. And at the risk of seeming Pollyannaish, it is worth noting that our career government officials are, by and large, keenly respectful of law and the Bill of Rights--notwithstanding bad-cop stereotypes that stir media excitement. It is hard to imagine any President ordering the surveillance of political opponents today without numerous government officials reporting it to the press and to Congress.
Many legal academics have warned in books, articles, and hearings that the Patriot Act endangers civil liberties. Most of this criticism amounts to the valid but generalized point that any increase in national security might potentially infringe on civil liberties. The rhetoric intensified with the 2004 presidential campaign. Former Vice President Al Gore, calling for the Patriot Act's repeal, accused the Bush administration of using "fear as a political tool to consolidate its power and to escape any accountability for its use." Then-candidate Howard Dean denounced the Act as "morally wrong" and "shameful." In debate on the House floor Dennis Kucinich claimed that "it has become crystal clear that this administration is currently and will continue to abuse, attack and outright deny the civil liberties of the people of this country in defiance of our constitution."6 The American Civil Liberties Union convinced several city councils to pass symbolic resolutions to disobey the Act and some librarians to file lawsuits against its expanded surveillance powers.
For its part, the Bush administration defended the Patriot Act as a crucial expansion of executive authority to "detect terror cells, disrupt terrorist plots and save American lives."7 Actually, the Patriot Act provides limited tools with which to tackle this challenge. The truth is that we do not currently have all of the legal tools we need to fight the new war we have before us. While it has begun the job, the Patriot Act is inherently limited because its underlying structure addresses the war we faced thirty years ago. Our human intelligence in this war has been weak; the CIA has had little success in breaking into al Qaeda's inner circle. Our open society makes it difficult, if not impossible, to intercept every al Qaeda agent who attempts to sneak through our borders. We need to press one of our distinct advantages in this war, America's skill in technology and electronic war-fighting, by allowing our intelligence and military to creatively find, monitor, and attack al Qaeda. Rather than unleashing our cyber-warriors and spies, laws like the Patriot Act keep them trapped in the procedures and mind-set of the Cold War.
One set of Patriot Act amendments sought to give antiterrorism officers the same tools that police and FBI agents now use against drug dealers or organized crime. Section 213 allows law enforcement agencies to provide delayed notice of the execution of a search warrant so as not to alert potential terrorists that they are under investigation.8 When premises are searched and things seized, the normal rule is that the owner is immediately notified.9 "Delayed notification" has been used in the past, in drug and organized crime cases, and has been upheld by the Supreme Court.10 The Patriot Act extended this tool to wiretap terrorist targets, which makes perfect sense. What is the point of telling the target that you are placing a wiretap or bug on him? Federal agents had shown its usefulness by successfully breaking up, in one example, a money exchange used to funnel funds from the United States to terrorists in the Middle East.11 Still, some House Republicans thought it was a serious threat to the civil liberties of terror suspects and almost succeeded in cutting off funds for it in 2003.
Another area where the Patriot Act sought to bring our capabilities up to par--expansion of search powers over business records--sparked even more opposition. This time, librarians were convinced that their rights were at stake. Section 215 allows the government to obtain a FISA warrant for any business records and papers held by third parties, like credit card purchases, phone records, and travel reservation information. Such records are used to trace terrorists' movements, activities, and sources of support. Law enforcement authorities have been able to obtain them through grand jury subpoenas for years. Libraries have, for instance, been subpoenaed concerning a defendant who researched books on how to build an unusual detonator.12 If anything, the Patriot Act made it more difficult to obtain a warrant for records by routing the process through an independent federal judge.
Nonetheless, librarians filed suit against Section 215. They raised the specter of government agents armed with subpoenas rooting around in book borrowing records. "Many people are unaware that their library habits could become the target of government surveillance. In a free society, such monitoring is odious and unnecessary," the ACLU declared in July 2003. "The secrecy that surrounds section 215 leads us to a society where the thought police can target us for what we choose to read or what websites we visit."13 Librarians wanted an exemption for any government request for information, with a warrant or not. The only relationships that enjoy this kind of immunity are those with our lawyers, doctors, priests, and spouses, and some of these can be overridden by a sufficient danger to life and public safety. Librarians apparently wanted to raise their services to book borrowers to the same level of social importance.
Groups like the ACLU never mention why the government might need information from libraries. Justice Department officials were not sitting around a conference table thinking that librarians ought to be taken down a notch. Rather, experience identified libraries as places where terrorists believed they could operate freely. In the lead-up to September 11, the hijackers and their network used public computers in libraries for research and e-mails. Additional information from businesses allowed investigators to piece together the links between the September 11 hijackers--after the fact. To prevent another attack, our agents need the information ahead of time, not afterward.
Librarians seemed to think that Section 215 singled them out. The provision does not even mention libraries. It applies to all businesses that keep records, of which libraries are only one. Business records, unlike personal records at home, are not constitutionally protected, because individuals give up any Fourth Amendment rights when they transfer control of records to a third party.14 Excluding libraries from Section 215 would tell al Qaeda that libraries remain a safe haven where their activities would be free of government surveillance. In the end, librarians succeeded in winning an exemption from producing records solely on government request, but they must still turn over records upon a FISA warrant.
Obviously we do not want the government to have a free hand in examining any private citizen's library records, yet we know that the terrorists behind 9/11 used libraries to communicate. FISA represents a compromise that allows the government to examine a suspected terrorist's records without infringing on the civil liberties of ordinary citizens.
The Patriot Act also updated FISA to cover the technologies of today, as opposed to those of the mid-'70s, before the advent of cell phones, the Internet, e-mail, and the rapid transportation of people, goods, capital, and data. A FISA warrant covered only the district in which the court was located (there are ninety-four federal district courts, one for each state and major city). Cheap ground and air transport means one can lose track of a terrorist in minutes. Section 219 amended the rules to allow district courts to issue search warrants on a nationwide scope in terrorism investigations.15 Again, no warrant may issue without a federal judge's approval.
Another provision that expanded prior law was the "roving" wiretap. Its name misleadingly raised the specter of a government following individuals everywhere and listening in on their every communication. According to the ACLU, "These wiretaps pose a greater challenge to privacy because they are authorized secretly without a showing of pro
bable cause of a crime."16 Before the Patriot Act, a FISA warrant only permitted surveillance of one phone number at a time, despite terrorists' ability to rapidly switch e-mail accounts, cell phones, and locations. Section 206 of the Patriot Act creates a FISA warrant that is applicable to the suspected terrorist no matter what communication device he uses. While no one wants the government to randomly snoop on its citizens without reason, why force our counterterrorism agents to get a new warrant every time a suspected terrorist changes e-mail accounts and cell phones? The Patriot Act merely made our intelligence laws "technology-neutral"--no matter what technology terrorists use, our laws can keep step. Again, this may only happen with judicial approval.
These changes adapted FISA for terrorism. It was not the revolution bemoaned by civil libertarians. While it ushered in useful improvements, it is a mistake to believe that the Patriot Act marked any major change in the way the government fights terror. In fact, since the Act made only evolutionary changes, it can create the opposite of its desired effect by lulling Americans into an unwarranted sense of security.
We needed a sea change in how we could deal with terrorist information. I was asked to study Patriot Act provisions that raised constitutional issues. Our ability to counter terrorism had been sorely hampered by the Wall between intelligence and law enforcement. It was such an impediment that we began to wonder if it unconstitutionally intruded on the executive branch's national security responsibilities. I worked on bringing down the Wall so that the government could pool its information on al Qaeda. This became Section 218 of the Patriot Act, which changed the legal standard for a FISA warrant from one whose primary "purpose" was to gather foreign intelligence to one that needed only a "significant purpose." This implicitly took down the Wall by making it clear that information on terrorist activities, whether it derived from foreign intelligence wiretaps or criminal investigation, could be shared throughout the government to protect national security. It was a change of only one word, but an important one.
The Wall had clearly delayed the FBI from exploiting an important lead in the days before the September 11 attacks. In August 2001, the FBI's Minneapolis field office opened an investigation into Zacarias Moussaoui. Moussaoui had entered the United States in February 2001 to take lessons at a flight school in Oklahoma. In August he moved to another school in Minnesota.17 He had no prior flight experience and no apparent interest in becoming a pilot. He held $32,000 in his bank account with no explanation of its source, had traveled to Pakistan, and apparently held jihadist beliefs. After 9/11, we learned from French intelligence that he had connections to extreme Islamic groups. We also learned that Moussaoui had met with and received funds from Ramzi bin al Shibh, one of al Qaeda's facilitators. Immigration and Naturalization Service (INS) officials detained him on the ground that he had overstayed his visa. But FBI headquarters turned down the Minneapolis field office's request for a warrant to search his laptop computer and belongings, which had information that could have led to the discovery of the 9/11 plot--all because of concerns about the Wall.
Strict enforcement of the Wall between law enforcement and foreign intelligence blocked yet another lead that might have led to the capture of one of the 9/11 pilots. In 2000, the CIA had begun tracking Khalid al Mihdhar after he had attended a critical meeting of al Qaeda operatives in Kuala Lumpur. Mihdhar flew to Los Angeles in January of that year with another future 9/11 hijacker, Nawar al Hazmi.18 The CIA had photographs of Mihdhar in Kuala Lumpur with an al Qaeda planner who was involved in the bombing of the USS Cole.19 But because of the Wall, the CIA wouldn't share those photographs with the FBI agents working on the USS Cole bombing, which was considered a criminal investigation and not a foreign intelligence operation.20
INS records showed that Mihdhar entered the United States again on July 4, 2001, at New York City. CIA and FBI counterterror agents realized Mihdhar's significance and tried to find him in August 2001, but refused to tell FBI agents in New York because of regulations enforcing the Wall. The FBI agents working on the Cole case were clearly upset, and said in an e-mail that "whatever has happened to this--someday someone will die--and wall or not--the public will not understand why we were not more effective and throwing every resource we had at certain problems."21 As the 9/11 Commission observed, "The criminal agents who were knowledgeable about al Qaeda and experienced with criminal investigative techniques, including finding suspects and possible criminal charges, were excluded from the search."22 Both Mihdhar and Hazmi had used their real names while in the United States, and might well have been found. Instead, they joined the teams that hijacked the planes on September 11.
Before the Patriot Act, a FISA warrant required that "the purpose" of the surveillance be to gather foreign intelligence.23 FISA does not permit searches whose only purpose would be to gather evidence for a criminal prosecution.24 In 1995, the Reno Justice Department issued guidelines that FISA information could almost never be shared with criminal investigators.25 This addressed concerns about the DOJ using national security as a pretext to conduct searches without having to meet full Fourth Amendment standards. The Wall prevented information gathered in the realm of foreign intelligence from finding its way into the criminal justice system. A more natural reading would have found simply that "the purpose" of the surveillance must be to collect foreign intelligence, and that this said nothing about other uses to which the information might be put. In other words, if the executive branch wanted to gather intelligence on a foreign threat to national security, it could do so, under FISA, regardless of whether a criminal prosecution might use the information.
The Wall erected by DOJ's interpretive guidelines was dangerously mistaken. Obviously, terrorists operate both outside and inside the United States. We were aware long before 9/11 that al Qaeda wanted to launch a spectacular attack inside our country. Terrorists had already attacked the World Trade Center, struck the Cole, and bombed our embassies and military personnel abroad. Only good intelligence and law enforcement work had stopped attacks on American-bound airliners over the Pacific and millennium bombings in the United States. The whole idea of the Wall had been an overreaction to the events of the Nixon era, but as it percolated into law and practice it had weakened our country against real threats. Pooling intelligence was the only way to obtain a full picture, the "mosaic" of all available information about terrorist plans. Judge Richard Posner argues that we should allow our multiple agencies to compete in analyzing available data in a sort of market-based approach to intelligence.26 But there is no benefit to segregating--or "stovepiping," to use a word one often hears in the government--the actual data that the government collects. Only when information is shared can intelligence and law enforcement agents follow new leads from new sources, or spot broader patterns and threats whose significance can't be understood without context.
Changing the "purpose" standard to one of "significant purpose" would bring down the Wall. This was a small change, but one that responded to the muddleheaded logic that had produced the Wall in the first place. To make clear to the courts and the bureaucracy that information-sharing was legal, Congress needed to change the standard, even though at first glance the language had little to do with sharing information.
But we also had to be careful not to run afoul of the Fourth Amendment. Diluting the "primary" purpose standard, DOJ and the courts had thought, would cast the FISA net unconstitutionally beyond the narrow zone of national security. This issue had tied the Justice Department up in knots for years. It was clear to me that the Fourth Amendment's warrant requirement for searches and seizures did not apply to actions taken to defend the country from foreign threats. There were two distinct legal regimes. The first was the regular criminal justice system. The second was war. Regular criminal warrants could issue on probable cause against organized crime groups, drug cartels, or terrorists who appeared to be violating federal laws.27 This was the approach to terrorism up to September 11. In war, the military searches for and, indeed, kills the
enemy without any warrants at all.28 Geography alone should not alter the powers of the government to protect the nation from attack. If enemy forces invaded our territory, the Constitution would not require a search warrant before the military could monitor, capture, or kill enemy soldiers. After all, seizing or searching Confederate soldiers during the Civil War did not require a warrant.
If al Qaeda organizes missions within the United States, our surveillance simply cannot be limited to law enforcement. The Fourth Amendment's warrant requirement should not apply, because it is concerned with regulating searches to stop crime, not with military attacks.29 This principle has been recognized by the lower federal courts, though not yet by the Supreme Court,30 which has specifically refused to address whether the warrant requirement covers domestic searches conducted for national security purposes.31 It has applied the Fourth Amendment's warrant requirement to cases of terrorism by purely domestic groups, out of concern that the government might suppress political liberties. Yet the Court has, so far, explicitly refused to consider whether the warrant requirement also limits the scope of the President's power to protect against foreign national-security threats.32
Since the Supreme Court's ruling, every lower court to examine the question has found that when the government conducts a search of a foreign power or its agents, it need not meet the requirements that apply to criminal law enforcement. In the leading case on the subject, a Virginia federal appeals court observed in 1980 that "the needs of the executive are so compelling in the area of foreign intelligence, unlike the area of domestic security, that a uniform warrant requirement would 'unduly frustrate' the President in carrying out his foreign affairs responsibilities."33 A warrant for national security searches would reduce the flexibility of the executive branch, which possessed "unparalleled expertise to make the decision whether to conduct foreign intelligence surveillance" and was "constitutionally designated as the pre-eminent authority in foreign affairs." It would place the decision whether to conduct the search on the judiciary, which "is largely inexperienced in making the delicate and complex decisions that lie behind foreign intelligence surveillance."34 Several other appeals courts have employed a similar logic, and no others have taken a different view.35