Wiretapping, FISA, and the NSA
I always feel like somebody's watching me..
US wiretapping laws, FISA and Presidential powers given to the NSA to intercept communications make for interesting times when coupled with technology. What are the issues surrounding privacy, search, seizure and surveillance?
Whenever a new technology is developed, or a new threat that causes us to deploy these technologies, questions invariably arise about their legality. When the telephone was first developed and used, it was not clear that the constitutional dictates on unreasonable searches and seizures applied to conversations that were neither "searched" nor "seized." The recent revelations that the US Department of Defense, through the National Security Agency, was targeting the international communications of US citizens for interception as part of a classified program raises questions about the constitutionality and legality of the program itself.
NSA targeting US citizens
The first thing to emphasize is that we don't know anything at all about this program. It has been alternatively described as a vacuum cleaner which sits on the main routers and international trunk lines of communication and "sucks up" all data for later analysis; as a "spider" program that starts with leads of phone numbers and email addresses found from interception or by analysis of al Qeada targets that does brief analysis any of these addresses or phone numbers; or most recently by the White House as a narrow rifle shot. As a White House spokesman told The New York Times on 27 December, "[t]his is a limited program. . . . These [intercepts] are designed to monitor calls from very bad people to very bad people who have a history of blowing up commuter trains, weddings and churches." So there you have it, according to the White House. The people targeted (even US citizens) are very bad people. And they are calling them very bad people. Which, more than anything else raises the question - why not get a warrant?
Can the President of the United States, during a time of war (albeit a war on terror, or terrorism, or fundamentalism without any end in sight whatsoever) assert plenary executive authority to intercept communications, including emails and other electronic communications originating from the United States and from US citizens without any kind of judicial warrant?
The US Constitution
The first place to start any analysis of privacy, search, seizure and surveillance is with the US Constitution itself. The Fourth Amendment provides that: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." So you would read that to mean that you would need a warrant to search for and seize things - including electronic mail messages, right? Wrong. You see, there are two independent clauses there - no unreasonable searches and seizures, and a necessity for warrants. It there is a search without a warrant, but it is reasonable, then it's OK. In fact, there are probably more searches and seizures without warrants than with them. If the search is done with consent (and here is the tough part - maybe with just the consent of the ISP), or because of some imminent harm or exigent circumstance, or to protect the safety of the police, or for a whole host of other exceptions carved out by the Supreme Court (including because it's in a car), then no warrant is necessary.
Balanced against this Constitutional provision is that of Article II Section 2, which designates that the President of the United States is the Commander in Chief. There are certain things that the government has historically done in wartime, which might have been otherwise illegal, but, hey - as General William T. Sherman said: "War is all hell." Indeed, during his famous march on Atlanta near the close of the Civil War, he did not get court orders authorizing the seizure of southern farms, livestock or property - he just took it - cause that's what you do in wartime. If you suspect that someone (back in the Civil war, that meant a US citizen) was working with the enemy, you arrested them. We would hardly expect General Sherman's army to follow the niceties of search warrants or special writs to be able to listen in on telegraph communications between Confederate Generals. That is the nature of the power of the government in time of war. Warrantless foreign intelligence collection has been an established practice of the Executive Branch for decades. The Supreme Court has noted that warrantless electronic surveillance "has been sanctioned more or less continuously by various Presidents and Attorney Generals since July 1946. Warrantless electronic surveillance has been used by the Executive to collect intelligence information since at least the mid-1800s."
Under that authority, you could lock up editors and publishers (that was, northern editors and publishers) for writing unfavorable articles, prevent newspapers from having mailing privileges, and even seize the property (slaves) of southerners (The Emancipation Proclamation) to cause hardship and economic suffering to the enemy. You can punish as seditious libel that which would otherwise be free speech (the Alien and Sedition Acts passed under President John Adams), and lock up tens of thousands of US citizens based upon nothing more than their ethnicity (the Japanese detention cases during World War II.) Historically, the Courts have been reluctant to look beyond the declarations of the executive branch during time of war concerning the necessity of some acts to protect the American people. Indeed, only when President Truman attempted to use the Korean War (a conflict?) as justification for seizing the steel mills did the courts deny his assertion of Presidential war power.
This Means War!
In addition to the general war powers, the President and the Attorney General have relied on an act of Congress - the Authorization for Use of Military Force (AUMF) passed on 18 September, 2001 - indeed, while the embers of the Pentagon and World Trade Centers were still burning. This is important because the wiretapping laws make it a crime to engage in warrantless wiretaps unless otherwise authorized by statute. The administration is reading the AUMF as the "statute" that authorizes the wiretapping, even while Members of Congress are emphasizing that they intended no such thing.
The AUMF empowered the President to "use all necessary and appropriate force" against "nations, organizations, or persons" that he determines "planned, authorized, committed, or aided" in the 11 September, 2001, al Qaeda terrorist attacks. The President's war powers, even during this "war on terrorism" or "war on Islamic fundamentalism" or "Global War on Terror," have traditionally trumped limiting statutes. It was pursuant to this authority, for example, that the President ordered the detention of Yaser Esam Hamdi, a US citizen, and the Supreme Court affirmed his authority to do so, citing in part the AUMF resolution. Similarly, the United States Court of Appeals for the 4th Circuit affirmed the authority of the government to seize US citizen Jose Padilla also under the AUMF resolution, although they later rejected the government's efforts to remove him to Florida as a potential pretext to moot a US Supreme Court review. Both courts held that the AUMF, although silent on the issue, authorized the President to detain US citizens on US soil if he designated them as combatants.
The Law of Wiretaps
Let's start with a little reality check here. Much of what the NSA and the intelligence community does is in violation of some law somewhere. Indeed, much of what the military does is as well. When the NSA intercepts a communication from France to Afghanistan, it probably violates the privacy and electronic surveillance laws in both countries. When it installs alligator clips on a phone in Turkmenistan, it probably violates some local burglary or trespass law. Espionage - the staple of the CIA - is a felony in almost every nation, and a capitol offense in the US. In fact, it is part of the intelligence community's job to try to get people to commit treason. So we are hardly shocked or offended that our government or any government is violating the law. What the so-called NSA domestic spying scandal addresses is whether the process violates US law.
In the December 2000 criminal prosecution of Osama Bin Laden for the first World Trade Center attack, the Court found that the Fourth Amendment warrant requirement did not apply to searches conducted on foreign nationals overseas - indeed, there was no mechanism for a judge in Manhattan to order a search or interception in Nairobi. But that is overseas. So if the wiretaps were done by the US government against foreign targets overseas, everything would have been ok. But the revelations were that the government was targeting US ersons for intercepts based upon some "connection" to some overseas person.
The first assumption under federal law is that all wiretapping done in this country or wiretapping directed against US citizens or permanent residents is illegal. Three separate laws make it a crime to engage in electronic surveillance unless specifically authorized by statute. 50 USC 1809(a); 47 USC 605 and 18 USC 2511. There are several exceptions to this presumption, including consent of one or all of the parties to the communication, interception by the provider of telecommunications services in the ordinary course of business for certain purposes. These are interceptions that do not implicate a reasonable expectation of privacy, and finally, interceptions done pursuant to court orders. That is, orders by the judicial branch.
For interception of the contents of communications within the United States (whether among citizens or not) the government (typically the FBI) can get a warrant under the federal wiretap statute (called Title III) or the Electronic Communications Privacy Act. Such warrants are difficult to obtain, must be supported by a finding of probable cause to believe that a crime has been or will be committed and that the tap will uncover evidence of that crime, and that reasonable steps have been taken to minimize the possibility that non-criminal conversations (or emails) will be intercepted and examined. As part of the USA-PATRIOT Act, Congress authorized so-called "roving" wiretaps, which allow the FBI and not the Court to decide that a target was now using a different telephone, and to transfer the wiretap authority from one phone to another. This resulted in reports of hundreds of erroneous wiretaps for the wrong telephone number, address, or email address.
But Title III wiretap orders apply only to findings of criminal activity. Now it is difficult for me to imagine a circumstance where someone could be part of a terrorist organization, planning or discussing terrorist activities and not be suspected of a crime. Terrorism is a crime. Murder is a crime. Destruction of property is a crime. Conspiracy is a crime. Money laundering, fraud, immigration fraud, false statements, counterfeiting - all of these are crimes. In the recent Spielberg movie Munich, Mossad agents assigned to assassinate those responsible for planning the abduction and murder of Israeli Olympic athletes agonize over the legality of their actions, but ultimately focus on its necessity. Niceties of the law are rarely debated on the battlefield, and according to the current administration, the battlefield is everywhere and forever.
The Foreign Intelligence Surveillance Act (FISA)
Nevertheless, the executive branch has another mechanism for obtaining court orders to intercept communications (including email) if the government doesn't believe that it has evidence of a crime. The Foreign Intelligence Surveillance Act allows the government to get an interception or seizure order (or a secret search warrant) by proving to a special super-secret court that the purpose of the surveillance is to obtain foreign intelligence, including (as amended by the USA Patriot Act) intelligence about terrorism.
FISA orders are directed at interceptions of "US Persons", meaning US citizens or permanent resident aliens, or US corporations. Thus, if a US person is the target of the surveillance, FISA, by its terms, applies. If the US person is not the target, but is otherwise intercepted, the surveillance is OK as long as there are appropriate minimizations procedures in place.
Prior to the enactment of FISA, domestic wiretaps were routinely done for "national security purposes" under nothing more than Presidential authority. Presidents from Roosevelt to Nixon ordered domestic wiretaps to protect national security. Indeed, prior to the enactment of the FISA statute, there used to be an exception in the wiretap criminal statute that provided, "[n]othing contained in this [statute] shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities..." The Nixon administration used this exception to conduct surveillance and interception without warrants on a host of domestic "subversive" groups. When this was revealed, Congress stepped in to limit the abuses by giving the President a mechanism for conducting foreign intelligence (and now terrorism) investigations by passing the Foreign Intelligence Surveillance Act (FISA).
FISA and Presidential power
With the enactment of the FISA statute, this provision was changed to essentially read that FISA now "shall be the exclusive means by which electronic surveillance and the interception of domestic wire, oral, and electronic communications may be conducted." Thirty-three years ago, the US Government tried to rely on pure Presidential power to engage in domestic surveillance of domestic subversive groups without a warrant. US Supreme Court rejected the government's contention that the courts were not prepared to deal with the sensitive classified information, could not make informed decisions about the threats to national security, and that the President had independent authority to order these wiretaps without the Courts. Even if the wiretaps were "reasonable" the Supreme court opined, they violated the Fourth Amendment. Shortly thereafter, the same court found that even the Attorney General could be held liable for authorizing these "national security" wiretaps in that case against a group planning to bomb bridges and tunnels. It was this precedent - establishing that a government official's immunity for ordering such illegal wiretaps is only limited - that Supreme Court nominee Samuel Alito sought to reverse when he was advising the Reagan Administration's Justice Department.
Alas, the court also noted that this opinion applied only to wiretaps of domestic groups unaffiliated with foreign entities. The government later tried to use this "foreign" exception to the restrictions to national security wiretaps to wiretap conversations of a Daniel Ellsberg with his lawyer, because the tap was on the phone of a non-US citizen, even though, according to Justice Douglas, "the intercepted conversations ... had nothing to do with respect to activities of foreign powers or their agents". Again, the government tried to assert additional authority for non-court ordered wiretapping.
Why not FISA for the NSA?
If these taps truly were aimed narrowly at "bad persons talking to bad persons" why couldn't the NSA get a FISA warrant? The President and Attorney General have both opined that it would be impossible to do so because of the "need for speed," despite the fact that FISA allows warrants to be issued after the fact. In addition, the President has stated that FISA was designed for "extended" surveillance - presumably implying that the wiretaps and email surveillances at issue were for a brief period of time. The administration has also asserted that they couldn't ask Congress to amend FISA because that would have alerted our enemies to the fact that we were intercepting communications.
Now anyone who has worked in a bureaucracy knows how hard it is to get anything done. Indeed, to get a FISA tap, the NSA agent monitoring traffic in the field (whether that is in Afghanistan, at an ISP, or in Fort Meade, Maryland) would likely have to get the approval of several levels of supervisors, and then lawyers for the NSA would get involved. Then the NSA would have to involve the Department of Justice's Office of Intelligence Policy and Review, and the Office of the Attorney General to review and analyze the FISA order, establish appropriate minimization procedures, and present the case for review by the FISA court. Finally, the FISA court would be convened and review, modify or approve the request for a wiretap. The wheels of justice grind exceedingly slow.
I can't imagine, however, that the non-FISA "presidential authority" wiretaps would be much faster. NSA agents and supervisors, NSA counsel and the Department of Justice would all have to be involved in approving the wiretaps, and they would then have to be reviewed by the White House, and ultimately approved by the President himself. This may turn out to be a case where the need for "speed" is really a euphemism for the need to assert Presidential authority over the courts.
So what is likely to happen? Already one member of the FISA court has resigned in protest, and Congress is likely to hold hearings not only on the specifics of the NSA wiretaps but also on whether FISA needs to be reformed in light of the government's needs. If the President's authority is, as he asserts, plenary during a time of war, then laws like the USA-PATRIOT Act would be unnecessary, and would in fact limit the President's plenary powers. One thing is certain. The "war on terrorism" is a fundamentally different kind of war than, say the Civil War or World War II, new threats, new laws and new technology make for interesting times.
Copyright © 2006, SecurityFocus
Mark D. Rasch, J.D., is a former head of the Justice Department's computer crime unit, and now serves as Senior Vice President and Chief Security Counsel at Solutionary Inc.