by Fiss, Owen
Bush’s Legacy
Soon after the terrorist attacks on September 11, President George W. Bush declared a “War on Terror” and gave concrete meaning to that declaration by launching a military campaign against al-Qaeda, the far-flung terrorist organization that was responsible for those attacks. He also invaded Afghanistan when that government, then controlled by the Taliban, refused to turn over Osama bin Laden and other leaders of al-Qaeda who were then harbored there.
In the context of this military campaign, President Bush, as commander in chief of the armed forces, issued a number of directives. Some of these orders reached far beyond the theater of armed conflict and had a direct and immediate impact on the quality of life in the United States. One of the most striking, issued in the fall of 2001, established the so-called Terrorist Surveillance Program, which directed the National Security Agency (NSA) to tap international telephone calls between persons in the United States and persons abroad who were suspected of having links to al-Qaeda or associated forces. The interception of these calls was not authorized by a warrant or any other form of judicial approval.
At its inception, the Terrorist Surveillance Program was hidden from public view, which, given that its purpose was to catch the unwary, is not all that surprising. On December 15, 2005, however, four years after it was instituted, the program was publicly disclosed by the New York Times and became the subject of a heated public controversy.4 Although many objections were raised to the program, the principal one arose from the failure of the president to abide by the requirements of the Foreign Intelligence Surveillance Act (FISA).5
FISA was adopted by Congress in 1978 in the wake of the revelations of a Senate committee, headed by Senator Frank Church, about the far-reaching and largely uncontrolled surveillance activities of American intelligence agencies. As originally enacted, the statute required the executive to obtain permission from a special court—the Foreign Intelligence Surveillance Court—before tapping the phones of agents or employees of a foreign power. The statute decreed that the membership of the court was to consist of eleven sitting federal judges specially designated for this assignment by the chief justice of the United States. Each was authorized to act alone.6 Their identities and their proceedings were both to be kept secret. The 1978 statute defined a foreign power to include not only a foreign nation but also a “group engaged in international terrorism.” The statute further provided that foreign intelligence information included information relating to “clandestine intelligence activities,” “sabotage,” “international terrorism,” and “the conduct of the foreign affairs of the United States.”7 The act declared that the procedures that it established were to be the exclusive avenue for gathering electronic foreign intelligence.
Bush’s attorney general Alberto Gonzales defended the president’s refusal to abide by the procedures of the 1978 statute.8 Gonzales claimed that the September 18, 2001, congressional resolution authorizing the use of military force against those responsible for the September 11 attacks had implicitly modified the provision of the 1978 statute that made it the exclusive procedure for intercepting the telephone calls of the agents of a foreign power. In Gonzales’s view, the 2001 resolution had removed any conflict between the Terrorist Surveillance Program and the 1978 FISA statute.
Gonzales did not stop at that point. He also denied that Congress had the power to interfere with the effort of the president to discharge his duties as commander in chief. Article II of the Constitution vests the president with the authority and responsibility to act as commander in chief, and he thus has, according to Gonzales, the authority to override the provisions of any statute that, in his judgment, unduly interfere with the discharge of these duties. Congress cannot tell the president how to deploy the armed forces, and similarly, Gonzales continued, Congress cannot instruct the president in his efforts to gather intelligence needed for the successful completion of the military campaign against al-Qaeda and its allies.
This argument was part of a larger strategy of the administration, spearheaded by Vice President Dick Cheney and his chief of staff, David Addington, to enlarge—or, in their view, recover—the constitutional prerogatives of the president to act on his own. In fact, the administration’s position on the Terrorist Surveillance Program paralleled the position it had taken on the methods that were to be used in interrogating suspected terrorists or persons accused of having links to al-Qaeda. In signing into law the Detainee Treatment Act of 2005, for example, Bush took issue with the portion of the act that banned torture.9 In his signing statement, Bush underscored the failure of the statute to provide a remedy to enforce the ban on torture and then went on to declare that he would not let it interfere with the proper discharge of his duties as commander in chief. He issued this statement on December 30, 2005, soon after the New York Times disclosed the existence of the secret wiretapping program. That coincidence lent further prominence to the attorney general’s argument that, notwithstanding the purported conflict with the 1978 FISA statute, the order establishing the Terrorist Surveillance Program constituted a lawful exercise of the president’s power as commander in chief.
On the issue of wiretapping, it is not clear who had the better of the argument in resolving the conflict between the president and Congress. Article II, which enumerates the powers of the president, declares that he is commander in chief of the armed forces, but the Constitution also grants Congress war powers. Article I gives Congress the authority to declare war, make general regulations governing the armed forces, and appropriate the funds for the military. In the domain of war, many of the powers of the president and Congress are shared or overlapping, and each branch can advance a claim for primacy when there is a conflict. The president speaks for the nation. Members of the Senate and the House of Representatives are more likely to feel the pull of the local constituencies that elect them, though those local ties may well enhance their accountability to electors and thus strengthen their authority to speak on behalf of the people.
In the end, the nation was saved from the difficulties inherent in resolving the conflict between the president and Congress. In January 2007, after a yearlong public debate about the Terrorist Surveillance Program, Attorney General Gonzales changed his strategy. He turned to the FISA court and got what he wanted. In a letter to the chairman and the ranking minority member of the Senate Judiciary Committee, Gonzales reported that on January 10, 2007, a judge on the FISA court had issued orders—arguably, ones that might be characterized as “blanket” orders—authorizing the wiretapping covered by the Terrorist Surveillance Program. As Gonzales put it, a FISA judge had 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.”10 Gonzales also said that, in light of this turn of events, the president had determined that there was no need to continue the Terrorist Surveillance Program, although he affirmed his belief that the program “fully complies with the law.”
Factions within the administration soon grew uneasy with this newly announced willingness of the attorney general to submit to the FISA requirements. Some objected to FISA’s scope, which had been construed to cover any communication routed through the United States, even telephone calls between two foreigners located abroad.11 Others objected to the need to obtain court approval when people in the United States were parties to the conversation but when the target of the interception was a foreigner located abroad.12 Still others were troubled by a decision by another FISA judge, who in March 2007, when considering a renewal of the original January 10 orders, took the view that applications for authorization to wiretap under FISA had to be made on a particularized or person-to-person basis.13 On April 13, 2007, only months after Gonzales’s compliant letter to the Senate Judiciary Committee, the administration gave expression to this backlash and introduced legislation that would modernize FISA—or, put otherwise, give the int
elligence agencies all the power they thought they needed.14
Congress responded favorably to the Bush administration’s overtures, first on August 5, 2007, when it passed the Protect America Act.15 That law was conceived as a temporary measure. By its very terms it was scheduled to expire in six months, and, in fact, it expired, after a short reprieve, on February 16, 2008. But on July 10, 2008, Congress enacted a replacement statute. It was presented as an amendment of the 1978 statute and thus was appropriately named the FISA Amendments Act of 2008.16 The 2008 act essentially allowed FISA judges to authorize wiretaps on the terms and conditions proposed by the administration. This statute was originally scheduled to expire at the end of 2012, but, unsurprisingly, it was renewed until 2017—which will be more than fifteen years after the Terrorist Surveillance Program was first instituted.17
Obama and the 2008 FISA Amendments
Although the 2008 statute was sponsored by President Bush and is historically connected to the Terrorist Surveillance Program he instituted, it has been thoroughly endorsed by President Obama. Obama signed the 2012 renewal into law, but he supported the measure even before that. As a senator, Obama opposed a provision of the 2008 statute that gave immunity from civil suits to the telephone carriers that had participated in the original Terrorist Surveillance Program by giving the NSA access to their facilities. Yet once he lost that fight, he voted for the 2008 statute. His attorney general, Eric Holder, subsequently declared at his confirmation hearing in January 2009 that he would fully defend the constitutionality of the statute.18 He was true to his word.
In July 2008, immediately after the FISA Amendments were signed into law, a lawsuit was filed challenging that measure and seeking to enjoin its enforcement. As the initial line of defense, the government—first under Bush’s directive and then under Obama’s—sought to block judicial review of the statute by denying that the plaintiffs had standing to challenge it. The plaintiffs consisted of a group of lawyers, journalists, and human rights researchers who have professional interests in the Middle East and who have regularly been in touch with persons in the region who might be thought to be terrorists. In fact, one of the lawyers represented Khalid Sheikh Mohammed, the alleged mastermind of the September 11 attacks, who is, as of this writing, being tried before a military commission at Guantánamo.
The plaintiffs in this injunctive suit maintained that there was a substantial risk their telephone calls would be intercepted under the authority of the 2008 statute and that, as a result, they would have to adjust their action accordingly to avoid that risk, for example, by speaking in more guarded ways or traveling to the region to have face-to-face conversations with possible witnesses or sources of information. To insist on more—namely, that the plaintiffs show that their telephone calls are in fact being intercepted or will be intercepted—would, given the clandestine nature of such surveillance, mean that virtually no one would have standing to challenge the validity of the statute. Although the target of a tap might be notified of the interception if he or she later became the subject of a criminal prosecution, such notice would hardly avoid the risk of interception to the entire group of plaintiffs, nor would it avoid the harm of which they complained—the very fear of having their telephone calls intercepted under this grant of authority. The government also pointed to provisions in the 2008 statute that gave telephone companies standing to test its validity, but the plaintiffs insisted that those provisions were not adequate to protect their distinct interests.
In late 2011, the Court of Appeals for the Second Circuit affirmed the standing of the plaintiffs.19 But the Supreme Court would have none of it. On February 26, 2013, the Court ruled that the plaintiffs lacked standing and thus could not obtain a ruling on their claim.20 The Court was sharply divided, 5–4. In this essay, I put the standing issue to one side and consider instead the validity of the 2008 FISA Amendments. The assumption is not that the Court will reverse itself anytime soon on the standings issue and rule on the validity of the measure. Rather, my purpose is to describe the surveillance power that was created by the 2008 statute and that is, in effect, now insulated from judicial examination.
The Origins of the Concept of “Foreign Intelligence Gathering”
The 2008 statute is unconnected to warfare. It was enacted during an era defined by the initiation of a War on Terror, but, unlike the Terrorist Surveillance Program, it has no analytic connection to the fight against al-Qaeda or any other military operation launched in response to the events of September 11. As an amendment of the 1978 FISA statute, the 2008 act is not linked to war but to the process governed by that statute—gathering foreign intelligence.
The concept of “foreign intelligence gathering” emerged as a distinct legal category in a rather odd manner—in the crevices of a back-and-forth between Congress and the Supreme Court on the rules that should govern wiretapping. The Supreme Court took the initiative in 1967, during the halcyon days of the Warren Court, when it ruled in Katz v. United States21 that the Fourth Amendment required that government wiretapping be authorized by a judicial warrant.
In taking this step, the Supreme Court rejected an approach to the Fourth Amendment, crafted by Chief Justice William Howard Taft in the late 1920s in Olmstead v. United States,22 which had placed wiretapping beyond the Fourth Amendment on the theory that it was neither a “search” nor a “seizure.” For the Court in Katz, these two words were not to be treated as Taft imagined—narrow pigeonholes into which the Court had to fit the contested executive activity. They were part of the initial phrase of the amendment (“the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures”), and this phrase, taken as a whole, should be understood as indicative of a purpose to protect the privacy of ordinary citizens. In the words of Justice John Harlan’s concurrence, often thought of as the authoritative gloss on what the Court had decided in Katz, the applicability of the Fourth Amendment, now seen in part as a protection of privacy, depends on two conditions: first, a person must “have exhibited an actual (subjective) expectation of privacy and, second, . . . the expectation [must] be one that society is prepared to recognize as ‘reasonable.’”23
As a purely technical matter—of no interest to the Court in Katz or, for that matter, in any of its progeny—the case before the Court did not involve wiretapping but something closer to eavesdropping. Agents of the FBI had attached a listening device to the outside of a public telephone booth. The Court fully acknowledged the limited and circumspect character of the executive’s action. The FBI agents had confined their eavesdropping to only six occasions when the accused was using the telephone booth and also had confined their eavesdropping to a short period of time (an average of three minutes). Still, the Court ruled that this action by the executive required prior judicial authorization—the issuance of a warrant by a detached and neutral magistrate.24
In insisting on a warrant, the Court was driven by an understanding that conceived of the diffusion of powers among the various branches of government as a way of protecting freedom. It also drew on the established rules governing intrusions into the home, long thought of as the citadel of privacy. The warrant had to identify the target of the tap with particularity. It also had to be based on an application that gave, under oath, the reasons for believing that the individual had committed, was committing, or was about to commit a crime.25
The Court in Katz carefully noted the banal character of the case under consideration. The case arose from the prosecution of an individual who was charged with participating in a gambling ring. The Court distinguished such a case from one involving issues of national security and specifically declined, in the penultimate footnote, to say whether warrants would be necessary in such cases. As the Court put it, “Whether safeguards other than prior authorization by a magistrate would satisfy the Fourth Amendment in a situation involving the national security is a question not presented by this case.”26
In 1968, soon aft
er the Katz decision, Congress, moved by a spirited public campaign to get tough on crime, passed the Omnibus Crime Control and Safe Streets Act.27 In Title III of that measure, Congress established rules governing wiretapping. It faithfully endorsed the Katz requirements and prescribed the procedures for obtaining warrants for wiretapping. Yet it ended with a proviso—similar to the Katz footnote—that declared that nothing in the measure should be read as requiring a warrant in national security cases.28 The proviso specifically identified two situations that were exempted by the warrant requirements of the statute. One such situation arises when the president is seeking to protect against attack or other hostile acts of a foreign power, safeguard national security information against foreign intelligence activities, or obtain foreign intelligence information deemed essential to the security of the United States. The other situation covered by the proviso arises when the president is trying to protect against clear and present dangers to the structure or existence of the government.
The dialectic between the Court and Congress took yet another turn in 1972 when, in the so-called Keith case,29 the Court was called upon to consider this proviso of the 1968 act. By this time, the Warren Court had begun to disintegrate, although a new institution had not fully come into being. The majority decision was written by Justice Lewis Powell, who had recently been appointed to the Court by President Richard Nixon. Another new Nixon appointee, Justice Harry Blackmun, joined his opinion, as did four who had supported Katz—Justices William O. Douglas, William Brennan, Thurgood Marshall, and Potter Stewart, who had written the majority opinion in Katz. The case arose from the radical politics engendered by widespread opposition to the Vietnam War and appeared on the Court’s docket “at a time,” as Justice Powell observed, “of worldwide ferment and . . . civil disorders.”30