A War Like No Other (33 page)

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 Arabia, 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.”
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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.
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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.”
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Kennedy concurred in Rehnquist’s outcome, but only because he felt that the federal officials had in fact acted reasonably.

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.”
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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.
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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.
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The second, joined to the first by the word “and,” sets forth the requirements for warrants.
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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.
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The Court concluded that neither exception was applicable to the interception before it and showed no inclination to create another exception.
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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 airports
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—has grown. These exceptions are now grouped under the heading of “special needs”
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and typically have been justified 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.
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Nor can it be claimed that obtaining a warrant prior to the surveillance is a practical impossibility.
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In contrast to airport searches, the 2008 statute requires that the government first seek judicial approval of the interception
⁷⁵
—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.