More On The NSA Intercepts

GWU law professor Orin Kerr has more on the legal and Constitutional issues surrounding the NSA wiretaps. He comes to the following conclusions:

My answer is pretty tentative, but here it goes: Although it hinges somewhat on technical details we don’t know, it seems that the program was probably constitutional but probably violated the federal law known as the Foreign Intelligence Surveillance Act. My answer is extra-cautious for two reasons. First, there is some wiggle room in FISA, depending on technical details we don’t know of how the surveillance was done. Second, there is at least a colorable argument — if, I think in the end, an unpersuasive one — that the surveillance was authorized by the Authorization to Use Miltary Force as construed in the Hamdi opinion.

Kerr argues that the intercepts were probably not in violation of the Fourth Amendment as there’s an already well-established principle that the US has a right to search objects coming across the border. It’s not a great stretch to apply that to data coming across the US borders as well – and indeed, there’s significant caselaw that would support that assertion. The Courts have always interpreted the President’s executive authority fairly broadly on similar issues, and it seems likely that a Fourth Amendment challenge wouldn’t survive much scrutiny by the courts.

On the issue of the legality of this program under FISA, Kerr believes that the NSA intercepts are in violation of FISA statutes:

Putting aside the AUMF and statutory exceptions for now, let’s consider whether the NSA surveillance program violates the basic prohibition of 50 U.S.C. 1809 — intentionally conducting electronic surveillance. I think the answer is probably yes. If the surveillance tapped wire communications under 1801(f)(2), the case is pretty clear: the surveillance involved people in the U.S. and survillance in the U.S., and that’s all that is required. If the surveillance involved radio communications (satellite communications, I’m guessing), that’s a bit trickier. There is at least a little wiggle room in Section 1801(f)(1). For example, you could say that the border search exception eliminates Fourth Amendment protection, such that there was no reasonable expectation of privacy and therefore there would be no warrant required in an analogous criminal case. In that case, the tapping of the radio communication wouldn’t count as “electronic surveillance.” I don’t think we know the details of how the communucations were obtained, so I think it’s fair to say that the surveillance probably violated the basic proibition but it at least arguably depends on some of the technical details we don’t know.

The problem here is that we don’t – nor should we, know all the details of the program. The essential problem here is that these are communications which are occurring across the national border but involve US residents. There’s a large legal grey area where that is concerned. Adding to these issues is that the Administration is using the post-September 11 Authorization for the Use of Military Force as a justification for the program. Already the Courts have determined in the Hamdi decision that this gives the Administration wide latitude in dealing with the terrorist threat. However, Kerr also finds this argument unpersuasive – if the AUMF authorized such surveillance, why was there a need to modify FISA guidelines as part of the PATRIOT Act?

The Administration does have some questions to answer, and it seems almost certain that the Courts will end up being involved in this case. However, past precedent argues for broad executive latitude in gathering national intelligence.

There’s nothing untoward or inappropriate about seeing this program as a potential threat to civil liberties. However, the fact is that there was significant legal review of this program, both through the FISA Court and Congress. As James Robbins writes in National Review:

The attorney general must report to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence 30 days prior to the surveillance, except in cases of emergency, when he must report immediately. He must furthermore “fully inform” those committees on a semiannual basis thereafter, per section 1808 subsection (a). He must also send a copy of the surveillance authorization under seal to the so-called FISA Court as established in section 1803; not for a warrant, but to remain under seal unless certification is necessary under future court actions from aggrieved parties under section 1806 (f).

While these searches do not require a warrant they are not free from reporting requirements under FISA. Members of Congress, including Harry Reid, Tom Daschle, and Nancy Pelosi were briefed on this program. The grandstanding of the Democrats in Congress only shows how shamelessly partisan they’ve become. Now that this information has leaked, terrorists will begin to alter their patterns of communications to avoid making transoceanic calls so that they can avoid surveillance. Valuable intelligence will have been lost, and our national security has been irreparably harmed. Those responsible for this leak deserve to be found and prosecuted to the fullest extent of the law.

The Executive’s powers during wartime are not unlimited, but there’s nothing particularly shocking about the fact that someone who is making calls from within the United States to a foreign individual tied to terrorism might have their communications intercepted. As Congress itself determined, the old FISA procedures failed us before 9/11. We are in a state of war against a shadowy terrorist network who has absolutely no compunction against committing acts of mass murder on US soil – that requires the government to take difficult steps to deal with the problem. These wiretaps are narrowly focused – the average citizen isn’t going to spend their time speaking with an al-Qaeda agent in Lahore. This isn’t “domestic spying” in a conventional sense, this is allowing the NSA the ability to gather intelligence and do their job.

Critics say that we didn’t do enough to put the pieces together to stop the September 11 attacks – and they were right. However, it seems as those same critics now want to forbid agencies such as the NSA from having the authority to put those pieces together at all. As the 9/11 Commission determined as recently as last year:

Many agents in the field told us that although there is now less hesitancy in seeking approval for electronic surveillance under the Foreign Intelligence Surveillance Act, or FISA, the application process nonetheless continues to be long and slow. Requests for such approvals are overwhelming the ability of the system to process them and to conduct the surveillance.

We can’t afford those kind of bottlenecks, especially when we have someone who is a significantly high-priority target to afford such surveillance. The use of these wiretaps is not designed for domestic intelligence, they are narrowly targeted, and they were conducted with the knowledge of Congress and the FISA Court. In short, this is exactly what the government should be doing in a time of war against a group like al-Qaeda. Programs like ECHELON, which have existed for years, have done much the same thing under less dire circumstances. If we are to combat terrorism in an effective manner, we have to be willing to give law enforcement and the military a reasonable set of tools to work with. I would rather have a narrowly-targeted program like this than a widely-targeted system based on key phrases like ECHELON.

What is truly disgusting is how The New York Times is cynically harming national security in order to pimp a book. The revelation of this program has undoubtedly harmed our ability to collect valuable intelligence on al-Qaeda’s operations here in the US. Apparently to some, embarrassing the Bush Administration is far more important than protecting ourselves from terrorism.

UPDATE: Jeff Goldstein has a massive roundup of links and Glenn Reynolds notes that warrentless searches were frequently used in the previous Administration – and for purposes far less crucial than fighting al-Qaeda.

I’m in general agreement with those who think that there’s a deeper technological reason why FISA is too limiting in these cases – I think that the NSA was using some kind of data-mining operation that couldn’t distinguish the targets of surveillance within the 72-hour timeframe included in FISA.

And of course, rather than coming up with constructive solutions, expect the Democrats to do nothing more than grandstand and preen for the cameras – because politics always seems to trump national security with them.

UPDATE: Ars Technica has a fascinating piece that argues that these wiretaps may be part of a voice-recognition system. I have a feeling it is something like that, which is why everyone’s being so coy about the details of the program.