A War Like No Other
Page 25
Similar strains of pragmatic cosmopolitanism may be found in Justice Kennedy’s opinion, this time for the majority, in the 2008 decision in Boumediene v. Bush.62 In this case, Kennedy declared unconstitutional a provision of a federal statute (the Military Commissions Act of 2006) that was applied to deny access to the writ of habeas corpus to foreign nationals being detained in Guantánamo. He concluded that the statute constituted an unlawful suspension of the writ of habeas corpus. In so doing, Justice Kennedy repudiated an effort by Congress, similar to the one embodied in the 2008 FISA Amendments, to free the executive engaged in a War on Terror from constitutional constraints on its treatment of foreign nationals located abroad, though in this instance by denying them access to the writ of habeas corpus to test the legality of their detention. On the surface of his opinion, Kennedy appears to have been moved less by a regard for the rights of the prisoners than by a concern for preserving the separation of powers—the need to preserve the capacity of the judiciary to review the legality of executive detentions. Yet the consequence of his action for the rights of Guantánamo prisoners—all foreign nationals detained abroad—was manifest, and thus the Boumediene decision can also be read as extending the reach of the Constitution to foreigners abroad.
We need not, however, enter into the debates generated by these readings of Justice Kennedy’s opinions, for even if we adopt Chief Justice Rehnquist’s position in Verdugo-Urquidez and restrict the protection of the Fourth Amendment in the way he suggests, there is good and sufficient reason to be concerned with the surveillance authority granted the executive by the 2008 statute over telephone calls of foreigners abroad. Americans may well be parties to those calls, and the interception of those calls will interfere with their reasonable expectation of privacy. The constitutional inquiry should not be confined to assessing the impact of the government’s action on the target of the interception but should consider its impact on all the parties to the conversation.
The 2008 act requires court authorization of a tap aimed at foreigners abroad only when the interception entails access to facilities located in the United States. Although sometimes a conversation between two foreigners located abroad may be routed through facilities in the United States, this is rare. Presumably, the bulk of international telephone calls routed through the United States involve at least one party who is in the United States. Some of these persons may be transitory visitors or even persons in the country illegally and thus beyond the protection of Rehnquist’s interpretation of the Fourth Amendment. But more likely than not, they will be United States citizens or persons lawfully granted residence in the United States—persons who had the voluntary connection to the United States that Rehnquist demanded in Verdugo-Urquidez.
Accordingly, a wiretap authorized by a FISA judge that is aimed at a foreign national living abroad will, in all likelihood, give the government access to private conversations of persons unquestionably entitled to the protection of the Fourth Amendment. This is indeed true of the plaintiffs in the 2013 standing decision of the Supreme Court—journalists, lawyers, and human rights researchers whose work necessitates frequent and regular telephone calls to people in the Middle East. These individuals may not, in fact, be the target of the surveillance and, for that reason, may be characterized, as a purely technical matter, as incidental victims of the surveillance, but there can be no mistake that they are victims of the surveillance. Just as much of their personal or private information may be acquired as that of foreign nationals living abroad. They will be fearful of speaking fully and freely or may be discouraged from using the phone altogether.
The original 1978 FISA statute was mindful of this danger. It specifically required the attorney general, in seeking an authorization for an interception, to attest under oath that there “is no substantial likelihood that the surveillance would acquire the contents of any communication to which a United States person is a party.”63 The 2008 FISA Amendments significantly reduced this protection to American citizens and persons lawfully admitted to permanent residence in the United States. Those seeking authorization from the FISA court—in this instance, the attorney general and the director of national intelligence—need only attest to the fact that procedures are in place that are reasonably designed to “prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of acquisition to be located in the United States.”64 The protection provided by this section of the 2008 FISA statute to the privacy interest to Americans living and working in the United States is profoundly diminished by the introduction of an intentionality requirement and the use of the word “all” (as opposed to “any”).
Admittedly, in the ordinary law enforcement context, probable cause must be shown for the target but not for all the parties to the conversation. Statements by anyone who engages in a telephone conversation with the target might be used by the government in a criminal prosecution.65 The 2008 FISA Amendments might be viewed as following a similar rule, but in truth the dangers are much greater. The target of the interception need not be an individual; it might consist of groups or categories of foreign nationals; and there is no need to establish, with respect to the target, the probable cause contemplated by Katz or Keith. The government need only give reasons for believing a target is a foreigner located abroad and that a significant purpose of the interception is to gather foreign intelligence. The threshold for interception is thereby lowered dramatically, and, as a consequence, the so-called incidental victims—U.S. citizens or lawful permanent residents of the United States speaking to a foreigner abroad—are more exposed than ever to interceptions of their private conversations.
B. The “Special Needs” Exception. The Fourth Amendment has an unusual grammatical structure. As Justice Kennedy’s concurrence in Verdugo-Urquidez makes evident, the Fourth Amendment consists of two clauses. The first clause proclaims the right of the people to be protected against unreasonable searches and seizures.66 The second, joined to the first by the word “and,” sets forth the requirements for warrants.67 Some scholars have advanced a disjunctive reading of the two clauses, arguing that in the minds of the framers the Warrant Clause sought to limit the availability of warrants, not to make their issuance decisive in determining whether an interception is, within the meaning of the first clause, reasonable.68 The possession of a valid warrant, the argument goes, would provide an absolute defense for a government official subsequently accused of conducting an unreasonable search. By tightly prescribing the requirements of a valid warrant, the Fourth Amendment sought to limit the issuance of warrants—and, correspondingly, the availability of an absolute defense in cases seeking damages against federal officials accused of conducting unreasonable searches.
This understanding of the Warrant Clause may indeed be a plausible account of the historic origins of this provision, but even so, it does not undercut the now-ancient rule—affirmed by Katz and Keith in the context of wiretapping—requiring that if at all possible the government must seek a warrant before conducting a search, and further that the warrant should be issued only if certain requirements—including the showing of probable cause—are satisfied. Indeed, this rule may well be a fair implication from the bar on the defensive use of warrants that do not meet the specified standards. Liability rules often reflect an understanding of best practices.
In Katz itself, the Court acknowledged two very narrow exceptions to the warrant requirement: one for searches conducted in the course of an arrest and the other for searches conducted in “hot pursuit” of a suspected criminal.69 The Court concluded that neither exception was applicable to the interception before it and showed no inclination to create another exception.70 In recent decades, however, the number of cases in which an exception to the warrant requirement has been made—the most familiar involves the searches of passengers and their luggage at airports71—has grown. These exceptions are now grouped under the heading of “special needs”72 and typically have been jus
tified on the ground that the intrusion of privacy is momentary, obtaining a warrant before the search is not remotely practical, and redress of abuses of power may be obtained through an action for damages.
These conditions are clearly not satisfied by FISA wiretaps. Such surveillance is not a momentary intrusion but lasts for a considerable period of time. Under the 2008 amendments, for example, the tap can last for a year.73 Nor can it be claimed that obtaining a warrant prior to the surveillance is a practical impossibility.74 In contrast to airport searches, the 2008 statute requires that the government first seek judicial approval of the interception75—the only issue is what must be shown to obtain that approval. Moreover, given the secrecy requirements of FISA interceptions, a retroactive action for damages for abuses of executive power is not a viable alternative. Secrecy is no bar to the work of inspectors general, but they are only administrative officials and their task is to report on whether the practices of the executive comported with the statutory requirements, not with the constitutional standard of probable cause or any of its cognates. And their job is not to provide a remedy for such abuses but to report to the executive and Congress on the extent to which surveillance has targeted or led to intelligence reports mentioning persons in the United States.
Under Title III, the government is required to give all subjects of a wiretap notice of an interception after the surveillance is complete. There is no such notice requirement in FISA. In the standing case handed down by the Supreme Court in 2013, the government indicated that under the 2008 FISA Amendments, individuals would be provided notice of an interception when the government intends to use that interception as part of a criminal prosecution.76 Justice Samuel Alito, who wrote for the majority in that case, made reference to this possibility in trying to explain why the Court’s opinion denying standing to the named plaintiffs did not insulate the statute from judicial review. Although the terms and conditions of that notice remain unclear to me, let us assume that as a result of this promised notice an individual might, now and then, learn that he or she had been the subject of a FISA tap. Then that individual might be able to demonstrate in a subsequent action for damages that the surveillance was undertaken for the worst of reasons, for example, to make life difficult for a political enemy or to learn of the accused’s strategy in an ongoing criminal prosecution.
But this imagined scenario hardly lives up to one of the assumptions underlying the special needs exception: namely, that a retrospective action for damages might hold the government accountable and thus avoid unreasonable infringements of privacy. The receipt of the promised notice for a FISA tap is likely to be a rare and isolated event, available only if a criminal prosecution is launched against one of the victims of the interception. In any event, such notice and the action it might prompt do not adequately guard against the principal harm of wiretapping—the fear of being heard by others. This fear might limit conversations, or discourage them altogether, which would be a tremendous loss for the individual and impair the democratic character of society, even though it is not likely to be a sufficient basis for an action for damages.
C. Extraordinary Crimes and the Problem of Overbreadth. In an era that began with the terrorist attacks of September 11, 2001, the temptation is great to develop a special rule for surveillance activities aimed at preventing further terrorist attacks. This rule would free the government from the Fourth Amendment warrant requirement in such cases and might be justified in terms of the magnitude or severity of the harm to be avoided. No warrants are required, under this theory, for the investigation of extraordinary crimes.
Such a rule might be understood as an expansion of the special needs exception, which is premised on the disjunctive reading of the two clauses of the Fourth Amendment that makes reasonableness the touchstone of legality. The test is not whether the surveillance is authorized by a warrant based on probable cause but whether the government’s action is unreasonable. From this perspective, it would be difficult to fault the government for instituting a wiretap without first obtaining a warrant when the purpose of the surveillance is to prevent terrorism.
In a recent case, United States v. Jones,77 Justice Alito suggested yet another way of conceptualizing this special rule for terrorism, though the result would be the same—no warrant would be required. For Alito, the Fourth Amendment does not protect privacy but only a reasonable expectation of privacy, and the severity of the harm to be avoided would enter into the judgment as to whether there was a violation of that expectation.78 When investigating extraordinary offenses, such as those involving terrorism, there may be, under Alito’s theory, no intrusion of a reasonable expectation of privacy, and thus no warrant would be required.79
In the Jones case, the police had installed a Global Positioning System (GPS) tracking device in the undercarriage of a suspect’s car without first obtaining an adequate warrant. The device was used to track the vehicle’s movement over the next twenty-eight days.80 Justice Scalia wrote the opinion for the Court and in it he applied a methodology reminiscent of Chief Justice Taft’s decision in Olmstead. Scalia first said that the car was an “effect” within the meaning of the Fourth Amendment, and then concluded that the act of installing the GPS device constituted a trespass and thus was a “search” or “seizure” within the meaning of that amendment.81 Justice Alito wrote a special concurrence in which he disassociated himself from Justice Scalia’s mode of analysis. Condemning the police practice within the framework of Katz, Alito maintained that the police had violated a reasonable expectation of privacy and thus were required to obtain an appropriate warrant authorizing the surveillance.82
In insisting on such a warrant, Justice Alito emphasized the length of the surveillance—twenty-eight days.83 He thought that relatively short-term monitoring of a person’s movement on a public street might be in accord with “expectations of privacy that our society has recognized as reasonable.”84 In restating this conclusion, however, Alito also made the nature of the offense relevant for determining whether there was interference with a reasonable expectation of privacy and thus whether a warrant was necessary. As he put it, “the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.”85 In saying this, and speaking of “most offenses,” Justice Alito appears to contemplate a special rule for exceptional or extraordinary offenses. Mindful of the novelty of this approach, however, and perhaps in an effort to satisfy the other justices who joined his opinion—Justices Breyer, Ginsburg, and Kagan—he ended his opinion with a disclaimer, so evocative of the national security disclaimer in Katz and the foreign intelligence gathering disclaimer in Keith: “We also need not consider whether prolonged GPS monitoring in the context of investigations involving extraordinary offenses would similarly intrude on a constitutionally protected sphere of privacy.”86
The defendant in Jones was charged with drug trafficking—surely not an extraordinary offense. Terrorist activities on the scale of the 9/11 attack or any other acts of international terrorism may have that quality of extraordinariness to which Justice Alito referred. My inclination, however, is to resist the temptation to allow an exception to the warrant requirement for so-called extraordinary crimes, regardless of how the exception is formulated.
For one thing, I fear that an exception to the warrant requirement for extraordinary crimes would be susceptible to great abuse. The government can always claim that it is seeking to prevent an extraordinary crime and then defend that claim on the basis of knowledge that it alone has. Even more, I fear the jurisprudential consequences of such an approach. It would impair the authority and near-sacred quality of the Constitution, which, in addition to establishing the structure of government, defines the highest ideals of the nation. It would also put judges into the business of making exceptions to a standard rule that is not easily cabined and that is at odds with their obligation to say what the law is. Pragmatic considerations often enter into judicial judgments, but never in a way that permits d
isregard for a clearly established constitutional rule.
However, even if Justice Alito has his way and an exception to the Fourth Amendment warrant requirement were allowed for extraordinary offenses, it is hard to see how it might save the 2008 statute, or even the FISA scheme in general. These statutes, in contrast—say, to President Bush’s Terrorist Surveillance Program—are in no way limited to surveillance that is aimed at al-Qaeda or associated forces, or even international terrorism in general. As originally enacted, the 1978 FISA statute defined a foreign power to include a group engaged in international terrorism and then defined foreign intelligence in a way to include information about international terrorism. Yet the statute is not confined to terrorism. In 2004, FISA was amended to include suspected terrorists who acted on their own,87 but that only broadened the reach of the statute.
In utilizing the powers granted by the 2008 statute, the attorney general may be guided by an understanding of the historical context in which the statute was enacted—the statute was passed during an era defined by the War on Terror and, in essence, sought to give legislative authorization for President Bush’s Terrorist Surveillance Program. Under these circumstances, the attorney general might well decide to use the 2008 grant of authority only for the purpose of preventing international terrorism or pursuing those who have engaged in such terrorist activities. But we can never be sure of that. The FISA regime—as originally enacted and amended in 2008—reaches more broadly and thus exacts a toll on our freedom. The very existence of the statute gives rise to the fear that international telephone calls will be tapped without the kind of judicial scrutiny and authorization required by the Fourth Amendment.