A War Like No Other
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Three individuals were charged with participating in a conspiracy to destroy government property. One of the three was also charged with blowing up a CIA office in Ann Arbor, Michigan. In response to a pretrial motion by this individual, the attorney general filed an affidavit in which he acknowledged that federal officials had intercepted telephone conversations in which the accused had participated. The attorney general also acknowledged that these wiretaps were not authorized by a warrant, although he went on to insist that the interception was a reasonable exercise of the president’s power to protect national security and that a warrant was not required for such interceptions.
Justice Powell began his analysis by putting Title III to one side. The proviso exempted the attorney general from the general requirements of the statute in national security cases but was not a grant of authority. According to Justice Powell, the proviso left the attorney general where it found him—that is, subject to the Fourth Amendment. Yet recall that the Court had declined in Katz to resolve how the Fourth Amendment applies to national security cases. Justice Powell offered a partial answer to this question by drawing a distinction—arguably suggested by the proviso in Title III—between threats to national security posed by “domestic organizations,” which he referred to throughout his opinion as “domestic security matters,” and threats to national security posed by “foreign powers or their agents.”31 He defined domestic organizations to refer to “a group or organization (whether formally or informally constituted) composed of citizens of the United States and which has no significant connection with a foreign power, its agents or agencies.”32 He then applied the Fourth Amendment warrant requirement to “domestic security matters,” as he characterized the case before him. In a manner reminiscent of Katz, however, he also declared that he was expressing no opinion “on the scope of the president’s surveillance powers with respect to the activities of foreign powers, within or without this country.”33
The original 1978 FISA statute sought to fill the decisional space left by the Court first in Katz and then narrowed in Keith. The statute established a procedure that required the attorney general to apply to a special court for permission or authorization to intercept telephone calls—both domestic and international—that were being transmitted through facilities located in the United States. This requirement of FISA for prior court approval should not, however, be confused with the warrant requirement that had been imposed by the Court in Katz and Keith. FISA did not require, as those two decisions had, the government to set forth reasons for believing that the target of the tap is guilty of a crime. The government need only set forth reasons for believing that the target of the surveillance is an agent or employee of a foreign power. The statute further requires the government to assure the court that there is no substantial likelihood that the interception will acquire the contents of communications to which U.S. citizens or persons admitted for permanent residence are parties. It also requires that the interception be likely to secure foreign intelligence, broadly defined by the statute as information that could (but need not) be related to criminal activity, such as sabotage or international terrorism. By the terms of the statute, foreign intelligence may also relate to alleged clandestine intelligence activities or the conduct of foreign affairs.
As a result of the 1978 statute, a dual structure emerged for wiretapping. Some taps required warrants based on probable cause; others, those specifically designed to gather foreign intelligence, did not. Remarkably, to this day—more than thirty-five years later—the Supreme Court has not ruled on the constitutionality of the FISA scheme or the dual structure it created. Yet a number of lower courts upheld the statute.34 Those courts then faced a new quandary: could the transcript of a telephone conversation obtained through the less demanding FISA procedures be admitted into evidence in criminal prosecutions?
These courts could have held that the probable cause requirement of Katz and Keith had to be satisfied whenever the result of a wiretap was to be introduced in a criminal prosecution. They chose a more permissive rule, however, and defined that rule in terms of the purpose of the interception. As long as the primary purpose of the tap was to gather foreign intelligence, the government could follow the less demanding FISA procedures for obtaining court permission and then use the results of that interception in a criminal prosecution against the target of that tap even though that permission was not based on a showing of probable cause as understood by Katz and Keith.35
This ruling lessened the force of the standards that the Supreme Court had enunciated in Katz and Keith, a trend that continued with a statute passed in the immediate wake of the September 11 attacks—the USA PATRIOT Act.36 That measure provided that the gathering of foreign intelligence had to be merely a significant, as opposed to a primary, purpose of the interception in order for the less demanding FISA procedures to govern. As a practical matter, this enabled the government to avoid the Fourth Amendment warrant requirement as understood by Katz and Keith whenever it could show a reason to believe that the target of the interception was an agent of a foreign power, that there was no significant likelihood of acquiring the contents of a communication to which an American was a party, and that foreign intelligence would be gathered by the interception. Gathering foreign intelligence could be a significant or a substantial purpose of the tap, and thus would be legitimate under the less demanding FISA procedures, even if the primary purpose of the interception was to gather evidence for a criminal prosecution.
The Terms of the 2008 FISA Amendments
The 2008 amendments preserved the changes to FISA effectuated by the USA PATRIOT Act. The government need only show that the gathering of foreign intelligence is a significant, as opposed to a primary, purpose of the wiretap. The 2008 statute also continued the original FISA requirements for authorizing wiretaps in which the target is not a citizen but is nonetheless a person located in the United States. In these cases, the government must, in addition to the showing of significant purpose, establish a reason for believing that the target is an agent or employee of a foreign power. However, the 2008 statute introduced a further complexity in the FISA structure by establishing, as the Bush administration proposed, a special set of rules to apply when the target of the tap is located outside the United States.
Some of these persons abroad may be Americans or, in the language of the statute, “United States persons,” a category defined to consist of United States citizens and persons lawfully admitted for permanent residence in the United States.37 With respect to them, the requirements for surveillance are roughly the same as those provided by the original FISA statute as amended by the USA PATRIOT Act. The government must establish that a significant purpose of the tap is to gather foreign intelligence and that the individual is an agent or employee of a foreign power. These requirements apply regardless of whether the interception is effectuated through facilities located in the United States or through facilities located abroad.
However, in the case of non-U.S. persons—in my terms, foreigners—who are located abroad, the 2008 statute radically departs from the original FISA standards. As under the original statute, there is no need to obtain authorization of any kind from a FISA judge when the wiretap does not require access to facilities located in the United States.38 When, however, the tap aimed at foreigners abroad requires access to facilities in the United States, permission by a FISA judge is required, but the traditional FISA standard is drastically lowered. Although the government must state that a significant purpose of the tap is to gather foreign intelligence, little more is required. The government need not have reason to suspect that the targets of the tap are agents or employees of a foreign power, only that they are foreigners and that they are located outside the United States.39
The 2008 statute not only lowers the standards for authorizing wiretaps aimed at specific or individual foreigners abroad, it facilitates the issuance of “blanket” authorizations for taps of such persons, as the original Terrorist Surveillan
ce Program did.40 Even though the entire FISA procedure is secretive, the 2008 statute relieves the government of the need to disclose to a FISA judge the identity of each individual to be targeted. It requires only that the government describe and employ procedures reasonably designed to ensure that its proposed surveillance activity will be limited to foreigners located abroad.41 Arguably, this might permit the government to obtain authorization from a FISA judge to tap the telephone calls of an entire group of foreigners abroad (for example, “persons suspected of links with al-Qaeda” or “high-ranking officers of the Pakistani army”).
All applications for warrants, even those required by Katz and Keith, are considered by a judge without notice to the target. The hope is that a judge, acting on his own, will scrutinize the factual basis of the application. This hope arguably persisted even under the original FISA scheme, though two of its features lessened the likelihood of that hope ever being realized—the judges on the FISA court are handpicked by the chief justice, and they are assured of a degree of anonymity. But the 2008 statute went further: it sought to eliminate the powers of a FISA judge to challenge the factual predicates of the government’s application for authorization for a wiretap where the target is a foreigner abroad.
In 2004, Congress passed a statute establishing the Office of the Director of National Intelligence to coordinate and oversee the work of all of the intelligence-gathering agencies of the United States.42 This statute also amended the original FISA statute to require that those applications that had to be jointly authorized by the director of the CIA and the attorney general now had to be authorized by the director of national intelligence and the attorney general.43 The 2008 FISA Amendments continued this requirement of joint authorization by the attorney general and the director of national intelligence.44 These officials must jointly establish a plan for governing these surveillance activities aimed at foreigners abroad, submit that plan to the FISA judge, and certify that the new FISA requirements for such targets are met.45 In another radical departure from the original FISA scheme, the 2008 statute goes on to provide that the judge must approve the application if the certification “contains all the required elements.”46 There is no room for the judge to scrutinize, as he or she might or should have done in the past, the factual predicates of the government’s FISA application. The 2008 statute also places a strict limit—thirty days—on the time the FISA judge has to consider the application.47
Having minimized the role of the judiciary, the 2008 statute provides for a measure of after-the-fact review of the surveillance activities of the Department of Justice and the various intelligence agencies that might be engaged in wiretapping. This review power was entrusted to a bevy of inspectors general, who on any account are administrative officials, not detached and impartial magistrates. Inspectors general are appointed by the president and are subject to removal by him. The Senate must confirm their appointment and be given thirty days’ notice of their removal.48 They were created by a 1978 statute, also a response to the disclosures of the Church committee, and are charged with reporting to Congress and the executive on the practices of the administrative agencies to which they are assigned. The 2008 FISA Amendments specifically instructed the inspector general of the Department of Justice and his or her counterpart in each of the intelligence agencies involved in the surveillance to review and report on the extent to which the surveillance targets persons ultimately determined to have been located in the country, and the extent to which the surveillance produces intelligence reports that identify Americans.49
The Conflict with the Fourth Amendment
The constitutional protection of privacy is not absolute. The Fourth Amendment does not altogether deny the government access to the information that it needs to discharge its elemental duty to secure the land. Rather, it seeks to minimize or avoid the dangers inherent in surveillance by restricting the techniques and methods that the government may employ to acquire that information. It places a zone around certain domains and activities of the individual—those endowed with a “reasonable expectation of privacy”50—and then constructs a barrier to protect this zone. This barrier is reinforced by the understanding that each intrusion not only impairs the individual’s interest in privacy and thus undermines the conditions necessary for human flourishing but may, given the particular circumstances of the intrusion and the reasons for it, threaten a multitude of other interests, including those protected by the constitutional guarantees of free speech, a fair trial, and equal treatment.
The 2008 FISA Amendments are a grant of authority. They allow the government to intercept telephone conversations and thus to interfere with an activity most certainly endowed with a reasonable expectation of privacy. The validity of the statute turns on the conditions it imposes on the exercise of this authority and whether those conditions are stringent enough to comport with the Fourth Amendment and the barriers it interposes against such intrusions of privacy. Typically, the Fourth Amendment has been used to review criminal convictions, and in that context constitutes a standard to measure, after the fact, the investigatory activity of law enforcement officials. It also has been held to establish a standard to measure prospectively legislative grants of investigative authority and the power of government officials to engage in various forms of surveillance, including wiretapping.51
A. The Probable Cause Requirement. The barrier constructed by Katz and Keith has two features. It requires court approval prior to the interception and it conditions that approval upon a showing of probable cause. FISA—as originally enacted and as amended—satisfies the first requirement of prior court approval. But it qualifies in important ways the second—the need to show probable cause.52
The Fourth Amendment does not elaborate on the meaning of probable cause, but, as Katz and Keith and countless other cases declared, probable cause is, as used in the Fourth Amendment, a technical term linked to criminality. It is, as Justice Ruth Bader Ginsburg recently observed, “a term in the legal argot.”53 Probable cause does not simply mean reason to believe or suspect that something is the fact, but rather reason to believe or suspect that the person whose calls are being intercepted had committed a crime, is committing a crime, or is about to commit a crime.
The burden of showing probable cause may weigh heavily on the government. The government may sometimes need to wiretap in order to acquire the information that will enable it to identify a criminal or give it reason to believe that an individual is about to commit a crime. The same could be said about intrusions into the home: they may be needed to establish probable cause. However, under the Fourth Amendment, that information must be secured by means that do not entail intercepting a conversation or intruding into a domain that is endowed with a reasonable expectation of privacy. In Katz and again in Keith, the Supreme Court stopped short of applying this understanding of probable cause to wiretapping aimed at gathering foreign intelligence and reserved that question for another day—a day that has not yet come.
The 2008 statute varies the conditions for obtaining court approval depending on the purpose of the surveillance and the citizenship and location of the target. In no instance does it require the suspicion of criminality that is the essence of probable cause. In all FISA wiretaps, the government must show that a significant purpose—not the only purpose or even the primary purpose—of the interception is to gather foreign intelligence, which, of course, may have no connection to any suspected criminal activity.54 The statute imposes a further condition on obtaining court approval when the target of the tap is an American citizen or a person who is lawfully in the United States: the government must show that the target is an employee or agent of a foreign power.55 If the foreign power is an international terrorist organization, it can be fairly assumed that there is reason to believe that the target is a terrorist and thus that the probable cause requirement has been satisfied. But wiretapping is allowed under FISA even if the foreign power is another nation, for example the United Kingdom or Saudi Arab
ia, and there is thus no reason to suspect the target of criminal activity.
There is an even more striking departure from the requirements of probable cause when the target is a foreigner abroad. In those cases, there is no need to show even that the target is an employee or an agent of a foreign power, only that he or she is a foreigner abroad. Moreover, in these cases, the FISA judge is denied the capacity, present in any probable cause hearing, of scrutinizing the factual basis of the government’s application. On top of that, the 2008 amendments authorize a FISA judge to approve “blanket” wiretaps aimed at groups or categories of persons consisting of foreigners abroad—once again, sharply at variance with the constitutional concept of probable cause, which requires suspicion of criminality and thus must, of necessity, proceed on an individual or person-by-person basis.
The provisions broadening the surveillance power of the government when it is aimed at foreigners abroad may have been based on a reading of United States v. Verdugo-Urquidez.56 In that case, Chief Justice William Rehnquist placed foreigners abroad into something of a constitutional free fall. He denied the protection of the Fourth Amendment—or maybe the entire Bill of Rights—to persons lacking a voluntary connection to the United States and for that reason did not govern in any way the search of a Mexican citizen’s home in Mexico.57
Although Rehnquist’s opinion was denominated the “Opinion of the Court,” it needed Justice Kennedy’s support to achieve that status. Justice Anthony Kennedy, then a relatively new appointee, wrote a separate opinion, in which he said that he joined the chief justice’s opinion but, in fact, advanced a more cosmopolitan conception of the Constitution.58 He brushed to one side Rehnquist’s emphasis on the prefatory words of the Fourth Amendment—“the right of the people.”59 According to Kennedy, those words were nothing more than a rhetorical flourish, a way of emphasizing the importance of what was to follow rather than a means of restricting to Americans the protection of the right guaranteed. Kennedy conceded that it would be impractical to require federal officials acting abroad to be subject to the same requirements imposed on them when they are acting within the United States. For that reason, they are not, according to Kennedy, subject to the warrant requirement of the Fourth Amendment.60 On the other hand, he continued, federal officials are always subject to the obligation to act fairly or, in the framework of the Fourth Amendment, “reasonably.”61 Kennedy concurred in Rehnquist’s outcome, but only because he felt that the federal officials had in fact acted reasonably.