Judge Robertson, whom Clinton had appointed in 1994, had joined the FISA court as a dubious volunteer. “I was skeptical of the whole FISA process. I wanted to see how it went on,” he said. And until the disclosure of the NSA surveillance, “I thought the FISA process had a lot of integrity. People took it very seriously.” The Justice Department “had careful, dedicated, patriotic people. I felt good about the process. It had a lot of integrity.”
But it also had a lot of paperwork, he conceded, which may have made it an undesirable route for investigators, especially those in a hurry. “I think there’s some merit in that argument that FISA warrants have become too cumbersome,” he said. “The procedure could be leaner.” That was the view of senior intelligence officials, who regarded the process as “too cumbersome and time consuming to address the current threat,” according to the report by the five agencies’ inspectors general. “CIA officials stated that FISA required extensive paperwork and high-level reviews and approvals,” and complained that the FISA court “did not always approve FISA applications in a timely manner.”74
This seemed a product of the court’s reluctance to turn down requests—official records show hardly any rejections: Only 2 of 13,102 applications were modified in the first twenty-two years of the secret court’s existence; more were later, but still just 179 of 5,645 in 2003 and 2004, with at least 6 rejected. Subsequent years showed similar patterns: 86 of 2,370 applications modified in 2007, for example, but just 3 denied, and in 2008 just 1 rejection out of 2,095.75 Instead, judges apparently increased demands on applicants. “Over twenty, thirty years, as the court wasn’t comfortable with something, instead of saying no, they asked for more information,” said Stewart Baker, assistant secretary for policy at the Department of Homeland Security. Each application grew from a couple of pages until the thickness of “the paperwork required to get a FISA order now measures in inches.”
But that seemed sensible to Royce Lamberth, presiding judge of the FISA court from 1995 to 2002. “The judges have been approving these surveillances because, really, they’re so well scrubbed by the time the court sees them,” he told the American Library Association in 2007. “They are the kinds of things we ought to be doing for the good of our nation. They are the kinds of surveillances that are needed. You would expect if the government is doing its job right, we should be approving what they’re doing.… I have not seen any proposal for a better way of doing it. I have seen a worse way, and that’s what the president has been doing with the NSA program.”
The courts should have oversight, he argued. “There’s nothing wrong with letting the judges take a peek,” he said. “We’re only taking a peek, but we’re making sure there’s not some political shenanigans going on or some improper motive for the surveillance, but some valid purpose for it. Whether we’re approving ninety-nine percent or not, the fact they have to submit them to us makes them honest.”76
The approval system doesn’t have to move slowly, as Lamberth’s experience demonstrated. Even before the urgency following 9/11, Lamberth got calls in the middle of the night to sign orders. First a Justice Department lawyer and an agent—usually from the FBI but sometimes from the NSA or the CIA—would stop by the attorney general’s house to get a signature, then proceed to Lamberth’s home, where gaps that the judge might discern could be filled. “The agent’s before me,” Lamberth noted. “I can question the agent. I can read their tone. I can ask any question I want to ask, can modify anything, swear the agent first so they’re under oath. Then I rule. Almost always if I wanted more information, the agent had it.”
When two American embassies were bombed in Africa, Lamberth recalled, “We were pretty sure it was bin Laden from the beginning. We had five targets the FBI wanted to go up on that night. They reached my house at three o’clock in the morning, I signed the warrants for those applications. Those five wiretaps turned out to be very productive. One of them was bin Laden’s secretary, who was a car tire dealer in Texas—Arlington, Texas. He later went to trial in New York and was tried and convicted.”77
An emergency order was sought in 1999, when a would-be terrorist, Ahmed Ressam, was stopped by Customs as he drove from Canada into Washington State with a plan to attack the Los Angeles airport at the beginning of the new millennium. In his wallet agents found a scrap of paper with a phone number. “The FBI came to me the same night for a warrant for that number,” Lamberth said. “I gave it to them. It led to an apartment in New York, and a tap on that apartment led to a cell in Montreal.… That’s the kind of little thing that can lead to a real intelligence coup, and that was a real intelligence coup.”
Knowing that flurries of e-mail typically follow an attack, intelligence officials have to move quickly to pick up the traffic. That’s what they did on September 11, 2001.
Lamberth was driving that morning from the dentist to the federal courthouse to preside over an ongoing murder trial. He was near the Pentagon when the plane hit, enveloping his car in smoke. He couldn’t move. Federal marshals couldn’t reach him. But he had his cell phone, and he and other judges “started approving FISA coverages on everybody we could dream up who might know anything,” he said. “By the time the FBI got to me in my car, I had already approved five FISA coverages that morning. It was quite a day. By the time I went home that night, we had every hijacker identified.” And that was done according to law through the FISA court, before the new powers of the Patriot Act. “The courts can respond in times of emergency,” Lamberth declared, “and we did, we have.”
Yet the Bush administration thought otherwise and stretched quite far to reach legal justifications for using NSA surveillance to evade FISA judges. Perhaps mirroring John Yoo’s classified memo, administration lawyers fell back, first, on an old constitutional argument used prior to FISA’s enactment: that Article II, Section 2, designating the president as commander in chief, gave him “inherent authority,” in the Justice Department’s words, “to conduct warrantless surveillance of enemy forces for intelligence purposes to detect and disrupt armed attacks on the United States.”78 The concept was endorsed almost verbatim by the three-judge Foreign Intelligence Surveillance Court of Review, which had never sat until November 2002, when its initial ruling cited “the president’s inherent constitutional authority to conduct warrantless foreign intelligence surveillance.”
Second, the administration relied on the Authorization for Use of Military Force, passed by Congress one week after 9/11, which permitted the president to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorist attacks.”79 Officials observed that electronic intercepts, known in the business as “signals intelligence,” were fundamental to conducting any war.
The Justice Department claimed that this combination of constitutional and congressional authorities put the president at “the zenith of his powers” according to the formula devised by Justice Robert Jackson in 1952. But it seemed a perverse argument, since Jackson was going the opposite way, against expansive presidential authority. He was concurring in the Supreme Court’s rejection of President Truman’s attempt during the Korean War to seize the nation’s steel mills on the eve of a planned strike.80 No congressional authorization existed for such seizure, Jackson found, only three statutes on taking private property that were not cited by Truman and contradicted his actions. “When the President takes measures incompatible with the expressed or implied will of Congress,” Jackson wrote, “his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.”
And those were the precise circumstances of the NSA surveillance, argued fourteen eminent constitutional scholars—“circumstances,” quoting Jackson’s words, “which leave presidential power most vulnerable to attack and in the least favorable of possible constitutional postures.” Far from authorizing warrantless domestic eavesdropping, the scholars said
in an open letter, Congress had explicitly banned it when passing FISA in 1978.81 “In the years before FISA was enacted,” they wrote,
the federal law involving wiretapping specifically provided that “nothing contained in this chapter or in section 605 of the Communications Act of 1934 shall limit the constitutional power of the President … to obtain foreign intelligence information deemed essential to the security of the United States.”82 But FISA specifically repealed that provision and replaced it with language dictating that FISA and the criminal code are the “exclusive means” of conducting electronic surveillance.83 In doing so, Congress did not deny that the President has constitutional power to conduct electronic surveillance for national security purposes; rather, Congress properly concluded that “even if the President has the inherent authority in the absence of legislation to authorize warrantless electronic surveillance for foreign intelligence purposes, Congress has the power to regulate the conduct of such surveillance by legislating a reasonable procedure, which then becomes the exclusive means by which such surveillance may be conducted.” … [Since 1967] the Supreme Court has never upheld warrantless wiretapping within the United States.
As a general principle, the scholars noted, constitutional authority can be regulated by Congress, as it had done in FISA, which “specifically allows for warrantless wartime domestic electronic surveillance—but only for the first fifteen days of a war.”84
Bush sought neither judicial review nor a change in the law until the secret surveillance program was exposed by the Times. Then, in January 2007, faced with the possibility of congressional action, he volunteered to get blanket authorizations from the FISA court for the NSA eavesdropping. How that worked—whether the court required particular and targeted surveillance or permitted broad sweeps for long periods—was kept secret. But Attorney General Alberto Gonzales indicated that a general authorization was provided, writing that “on January 10, 2007, a Judge of the Foreign Intelligence Surveillance Court issued orders authorizing the Government to target for collection international communications into or out of the United States where there is probable cause to believe that one of the communicants is a member or agent of al Qaeda or an associated terrorist organization.”85 The court reportedly narrowed its authorization that spring.
That dissatisfied intelligence gatherers, who wanted carte blanche to avoid the FISA court when both parties were abroad, even if their conversations or messages passed through the United States. The issue arose because of a change in technology. A great deal of the global communications traffic among foreign countries is relayed by equipment in the United States, where FISA applies.
Mike McConnell, the director of national intelligence, stood at a map and demonstrated the problem for Lawrence Wright of The New Yorker:
“Terrorist on a cell phone, right here”—he pointed at Iraq—“talking to a tower, happens all the time, no warrant. Tower goes up to a microwave tower, no warrant. Goes up to a satellite, back to the ground station, no warrant. Now, let us suppose that it goes up to a satellite, and in the process it does this”—his finger darted to the U.S. before angling back to Pakistan. “Gotta have a warrant! So it was crazy.”86
So, the White House proposed revising FISA to legalize its own evasion—and essentially won. First it got the Protect America Act to remove protections by sanctioning the warrantless surveillance from August 2007 to February 2008.87 Then the shock and outrage that had erupted in Congress over the program evaporated in the hot political summer of 2008, when most candidates (Barack Obama included) were unwilling to be demonized as soft on terrorism, and few Americans agitated on behalf of personal privacy. The Democratic-led Congress severely undermined FISA by passing amendments containing the thinnest possible oversight by the FISA court. Bush was understandably delighted, declaring at the signing ceremony, “The bill will allow our intelligence professionals to quickly and effectively monitor the communications of terrorists abroad while respecting the liberties of Americans here at home.”88 The law had no requirement that the monitoring be limited to terrorists, however, and Americans at home had a good deal to worry about.
Public discussion was fixated on a provision immunizing the telecommunications companies retroactively from lawsuits for violating customers’ privacy. The firms’ only legal motive to guard personal information is now gone. But far more significant is the virtual free hand given the government to collect and monitor communications that appear international (but might be domestic) without individualized warrants meeting any of the Fourth Amendment’s key requirements. As long as the targets are “reasonably believed” to be outside the country and not “United States persons” (American citizens and “aliens lawfully admitted for permanent residence”), the FISA court is required to approve eavesdropping applications containing minimal information. No particular individuals, groups, phone numbers, e-mail addresses, or other limiting details have to be specified, and no probable cause has to be shown that the targets are foreign agents, criminal suspects, or associates of terrorist organizations. The rationale for monitoring is broad and vague, merely “to acquire foreign intelligence information,” which can include not just classified military matters but anything that might interest journalists, scholars, or human rights advocates about a country’s political, economic, legal, and cultural issues.
Taken together, all of the loose requirements allow “mass acquisition orders” that can sweep up communications, albeit inadvertently, from Americans inside and outside the United States. The law says only that the government “may not intentionally target” such parties. If it accidentally does so, or if the parties on U.S. soil are not the true targets but only ancillary to the focus of the surveillance, no more demanding FISA warrant is required. And the FISA court has a role only at the outset, with no continuing oversight to make sure the surveillance ceases, as the law requires, if a U.S. person or anyone inside the country turns up in the communications.
The court’s power is further undermined by a provision allowing emergency eavesdropping without a court order for up to seven days before going to the judges; if it’s denied on procedural or even constitutional grounds, or in the unlikely event that a telecom company appeals, the surveillance “may continue” until the appeal is exhausted, which could take years. (The target does not know that he’s being monitored, of course, so has no opportunity to file a challenge.) Nor does the law authorize the court to enforce the statute’s so-called minimization procedures, which are vague restrictions on the dissemination of information and could lead to the storage of vast databases for later use against law-abiding people whose communications happen to be swept up in the net.89
Indeed, it’s hard to see how any of the mild limitations are truly enforceable, given that nobody can seriously watch what the NSA and other agencies are doing. Congress has given them the power to snoop pretty much as they see fit. The five inspectors general concluded that the 2008 law “gave the government even broader authority to intercept international communications” than the “Terrorist Surveillance Program” that Bush had secretly launched in 2001.90
If lawmakers had intended to be satirical, they couldn’t have done better than the provision that the surveillance “shall be conducted in a manner consistent with the Fourth Amendment to the Constitution of the United States.”91 There is practically nothing in the statute consistent with the Fourth Amendment’s requirements for probable cause, particularity, and individualized warrants.
Secret government behavior is like black ice: You can’t see it, and it’s hard to get enough traction to fight it. It’s impossible to find anyone who knows he’s being monitored. Therefore, while a group of organizations, scholars, and writers who communicate frequently overseas won in federal district court against the warrantless surveillance program before it was codified in law,92 a panel of the Sixth Circuit ruled two to one that they had no standing to sue, because they couldn’t prove that they were targets of eavesdropping.93 You don’t get to fil
e a lawsuit unless you’ve been harmed, and if the government prevents you from knowing that you’ve been injured, too bad.
Undaunted, however, a collection of lawyers, writers, and human rights organizations represented by the ACLU challenged the 2008 FISA amendment, arguing that they could not effectively gather information from persecuted dissidents, abused women, tortured inmates, and others overseas who would assume and fear that their e-mails were being read, that their phone calls were being heard, and that they could suffer as a result. Human Rights Watch, Amnesty International, and others predicted that the law would require employees “to travel long distances to collect information … and in some circumstances to forgo particularly sensitive communications altogether.” A federal judge dismissed it on the same grounds—no standing, since they couldn’t show that they’d been under surveillance. But their suit was reinstated on appeal.94
At least Bush found something to laugh about. “Half the time they say I’m isolated and don’t listen,” he remarked. “Then when I do listen, they say I need a warrant.”95
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