A War Like No Other (31 page)

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 intelligence 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 States
²¹
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 after 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

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