Sunday, July 13, 2008

Liberals Should Calm Down About The New Surveillance Statute

In my earlier blog, I had posted a comment that was sharply critical of Bush’s warrantless electronic surveillance program. I therefore feel a certain obligation to comment on the controversy surrounding the recently enacted amendments to the Foreign Intelligence Surveillance Act (“FISA”). This legislation has attracted particular attention because of Senator Obama’s support for it, which has drawn intense criticism from the left, leading to accusations that he is flip-flopping or selling out. As described below, I believe that this criticism of Senator Obama is grossly unjustified, and that the concerns about the new FISA statute raised by civil liberties groups are overblown.

First, let me reiterate my strong objection to the illegal program of warrantless surveillance that the Bush Administration conducted. However, let me also emphasize that the basis for my objection was that Bush’s program clearly violated FISA – a felony violation under the statute – and circumvented the scrutiny of the FISA court. This was an abuse of Executive power, violating the separation of powers mandated by the constitution. In addition, by conducting surveillance outside of the scrutiny of any court, Bush pursued a program that was opaque and unaccountable. The simple fact is that even today, no one outside of the Bush Administration itself knows exactly what sort of surveillance was conducted. For all we know, the surveillance could have targeted Bush’s political opponents. It was precisely such abuses that the FISA statute was designed to prevent, by creating a specialized, highly-secret “FISA court” that would review and authorize foreign intelligence electronic surveillance, so as to prevent Presidents from conducting abusive, politically-oriented electronic surveillance under the purported rubric of “national security.” In my earlier posting, however, I was also careful to point out that if there were any deficiencies in the existing FISA statute that impeded the legitimate needs of the government to conduct the fullest possible surveillance of terrorist organizations such as Al Qaeda, then the appropriate remedy would be to ask Congress to amend the statute; the remedy would not be simply to ignore the statute altogether, as Bush did.

The new statute is an attempt by Congress to fix perceived weaknesses in the old FISA statute. Many objections to the old statute may well be legitimate. In attempting to address these problems, the new statute does not abandon the requirement of FISA court review and authorization. The new statute is by no means an affirmation of what the Bush Administration did; if anything, it is a repudiation of Bush’s actions, by making it clear that legitimate foreign intelligence surveillance can be conducted consistent with the law and under the scrutiny of the FISA court, so as to prevent abuses of Presidential power.

In my opinion, there is absolutely nothing on the face of the new FISA statute that in any way violates the Fourth Amendment’s ban on unreasonable searches and seizures. To be sure, there are some debatable technical aspects of the new law, as I discuss below, and it will take some time to see how the law works in practice, in order to determine whether or not it succeeds in striking a proper balance between protecting legitimate privacy interests and enabling the government to gather intelligence about terrorist organizations to the fullest possible extent. On its face, however, the new statute appears to be a reasonable attempt to reconcile these interests in a manner fully consistent with the requirements of the Fourth Amendment.

I cannot emphasize this point too strongly. The hyperbole that has been circulated about the new FISA statute is astounding. The ACLU has recently announced that it is filing a lawsuit to challenge the new statute, claiming that the new law is “un-American” and sounds the virtual death knell of the Bill of Rights (and parenthetically, also provides a good opportunity for the ACLU to solicit donations). On a recent television program, law professor Jonathan Turley described the statute as marking the end of the Fourth Amendment, claiming that the statute would permit Presidents to conduct warrantless surveillance of all Americans’ communications without any limitations. Even a cursory reading of the statute reveals that Turley’s statements are utter poppycock. (To make an ad hominem aside, Turley strikes me as the new Alan Dershowitz, a publicity-seeking self-promoter and not a serious legal scholar; I note that Turley, now the darling of the civil libertarian left, originally became known as a TV pundit because of his vigorous support of the Republicans’ impeachment of Bill Clinton, something that in my view, was little more than an attempted coup d’etat).

There are two principal aspects of the new FISA statute on which public attention has concentrated. First, it expands the jurisdiction of the FISA court to approve foreign intelligence surveillance in a broader range of circumstances than is permissible under prior law. It is simply untrue, however, that the new statute would authorize blanket warrantless surveillance of all Americans’ communications. In my judgment, these modifications to the FISA statute are reasonable and fully consistent with the Fourth Amendment, as discussed below.

Second, the new statute grants a form of civil immunity to telecommunications companies that assisted the Bush Administration in conducting surveillance without authorization of the FISA court during the period between September 11, 2001 and January 2007 (by way of shorthand, I refer to this issue as that of "telcom immunity"). This provision is more problematic, although again, I do not see that it raises any constitutional issues. I do agree with Senator Obama that this provision should have either been deleted or delayed, since the new statute also contains a provision requiring various federal Inspectors General to report to Congress as to what exactly the Bush Administration did, and it would have been preferable for the immunity not to take effect until after Congress knows exactly what it is immunizing. The Bush Administration, supported by all Senatorial Republicans (except Senator Specter) and a handful of Democrats (not including Senator Obama), was adamant in opposing these modifications to the immunity provisions. Given a choice between a FISA statute that included a flawed immunity provision, and no FISA statute at all, I believe that Senator Obama made the correct choice in voting for the new statute. By “correct” I mean not just that it was politically smart, although it clearly was, but that it was also in the best interests of the country.

Background of FISA

In order to understand my support for the new FISA statute, it is helpful to understand the history and evolution of Fourth Amendment law as it applies to the subject of foreign intelligence surveillance. The old FISA statute was enacted in 1978 in response to the Supreme Court’s decision in United States v. United States District Court, 407 U.S. 297 (1972) (generally known as the “Keith case”), which held that President Nixon did not have the power under the Fourth Amendment to order warrantless electronic surveillance in cases involving “domestic security.” The Supreme Court left open the possibility that a more relaxed standard would apply under the Fourth Amendment in cases involving foreign intelligence where the activities of foreign powers and their agents are under scrutiny.

FISA was enacted to provide a legal framework for electronic surveillance in the foreign intelligence arena in light of the Supreme Court's ruling in the Keith case. There were certain fundamental concepts at the heart of the original FISA statute. First, the statute provided that foreign intelligence surveillance may be conducted without a court order only if the Attorney General certifies that there is no reasonable likelihood that the communications of a U.S. person (a citizen or resident alien) will be intercepted. Second, if the Attorney General could not make such a certification, then foreign intelligence surveillance could only be conducted pursuant to an order issued by a specialized, highly secretive FISA court based upon a showing that the target of the surveillance was a foreign power or an agent of a foreign power (the post 9/11 Patriot Act redefined the term "foreign power" to include terrorist organizations). Third, the Attorney General would have to develop “minimization” procedures (I discuss the concept of minimization in more detail below) to ensure that the surveillance only served the purpose of gathering foreign intelligence information and did not unreasonably invade the privacy of communications unrelated to foreign intelligence; these minimization procedures would have to be reviewed and approved by the FISA court to ensure their compliance with the Fourth Amendment.

The impetus for the new FISA statute emanated from the contention that the limitation of the FISA court’s jurisdiction to surveillance of foreign powers and their agents rendered the statute ineffective as a tool for gathering intelligence about terrorist organizations such as Al Qaeda. After all, organizations such as Al Qaeda do not publish membership directories, and it may not be possible to identify specific individuals as being “agents” of these organizations. Because of the inability of intelligence agencies to target specific individuals as agents of a foreign power, it is quite likely that intelligence agencies would be barred by the old FISA statute from conducting electronic surveillance that would undoubtedly yield a good deal of valuable intelligence about the activities of terrorist organizations.

It was here that the Bush Administration chose to embark upon a course of action that was both grossly unconstitutional and monumentally stupid. Instead of asking Congress to amend the statute in order to expand the jurisdiction of the FISA court so that any deficiencies in FISA could be cured in a manner consistent with the rule of law, Bush chose to act as though FISA did not even exist and authorized the conduct of rampant warrantless surveillance that completely bypassed the authority of the FISA court. Bush’s lawless course of conduct went on for approximately five and a half years. Finally, new legislation was proposed to deal with the shortcomings of the old FISA statute, which culminated in the recently-enacted statute that has caused so much controversy. As an ultimate display of Executive chutzpah, Bush commented that the new statute was “long overdue”; of course, the only reason it took so long was because of the numerous complications arising from the fact that Bush had chosen to don his familiar cowboy hat and ignore Congress and the FISA court in conducting warrantless surveillance, thereby giving rise to the complex issue of telcom immunity that has been the major sticking point in the enactment of the new statute.

The new FISA statute deals with the shortcomings of the old law by eliminating the limitation of the old statute of FISA court jurisdiction to the surveillance of foreign powers and their agents. Instead, the new statute authorizes the FISA court to enter an order permitting the surveillance of the communications of any non U.S. person, so long as there is probable cause to believe that the non U.S. person is located outside of the U.S. Communications of U.S. persons can be targeted for interception only if there is probable cause to believe that the U.S. person is both located outside of the U.S. and is acting as the agent of a foreign power. In this context, the new statute expressly prohibits "reverse targeting", i.e., the targeting of a non U.S. person as a pretext for conducting surveillance of a U.S. person. Most importantly, the new statute continues the requirement of “minimization” and empowers the FISA court to review the minimization procedures in order to ensure compliance with the Fourth Amendment (I’ll discuss the crucial aspects of minimization below).

Constitutionality of the New FISA Statute

The new statute clearly is going to generate a good deal more surveillance than was possible under prior law. This will likely be of benefit to intelligence agencies, although I actually have some concern that the new law will generate too much data and will prove to be of little practical use. However, the real question is whether the law is constitutional under the Fourth Amendment. I have very little doubt that it is.

It is very important keep in mind that the new statute applies to the interception of communications occurring, at least in part, outside of the U.S. The Fourth Amendment has little or no extraterritorial application. Since the beginnings of the Republic, courts have recognized that the Fourth Amendment permits warrantless “border searches” in order to control the flow of goods and people into the country. Air travelers must submit to warrantless searches, without probable cause, as a requirement for air travel. For similar reasons, the Fourth Amendment places little limitation on the government’s power to intercept telecommunications occurring outside of the U.S.

There are two main reasons why the Fourth Amendment has little or no extraterritorial reach. First, activities occurring outside of the country raise issues of national security, not just domestic security, and as the Supreme Court emphasized in the Keith case, Fourth Amendment considerations in measuring the “reasonableness” of a governmental search in these two contexts are quite different.

The second reason for the territorial limitations on the reach of the Fourth Amendment stems from the nature of the Fourth Amendment’s protections. As the Supreme Court emphasized in Katz v. United States, 389 U.S. 347 (1967), the first Supreme Court decision to hold that the Fourth Amendment applies to electronic surveillance and not just physical searches and seizures, the Fourth Amendment protects “reasonable expectations of privacy.” When one makes a telecommunication outside of the U.S., one really cannot have any reasonable expectation that the communication is private. Can anyone seriously say that when one places phone calls to countries such as Egypt, Uzbekistan, or China, one does not expect that local government authorities are monitoring the calls? Indeed, very few countries in the world place restrictions on their government’s ability to conduct surveillance comparable to those imposed on the U.S. government by the Fourth Amendment. Thus, it makes no sense to construe the Fourth Amendment as limiting the power of the U.S. government to intercept extraterritorial telecommunications, when those communications are not really “private” in any reasonable sense.

The real key to the workings of the FISA statute, and the element that renders the statute constitutional, in both its old and new versions, is the requirement of minimization. Although the new statute only permits the targeting of non U.S. persons outside of the U.S. (and U.S. persons acting as foreign agents), it is inevitable that this surveillance is going to pick up the communications of many U.S. persons who may be on the receiving or sending end of the communications being intercepted. Does this fact render the new statute unconstitutional? The answer is, not necessarily, and this is why the requirement of minimization is crucial.

The problem of minimization is inherent in all electronic surveillance, not just surveillance conducted under the old and new FISA statutes. To draw an illustration from popular culture, government agents may have probable cause to believe that Tony Soprano is a nefarious criminal who discusses all sorts of criminal activity on his home phone. As such, the government can obtain a court order to tap Soprano’s phone. However, Carmela, Meadow, and A.J. may also use that phone to talk to friends and family to discuss their personal lives and all sorts of things having nothing to do with Soprano’s criminal activities; Tony himself may also conduct perfectly legitimate conversations with persons uninvolved in criminal activities. So, how do you prevent the wiretap from becoming a wholesale, unconstitutional invasion of the reasonable privacy expectations of both the Soprano family and the non-criminal people who communicate with them? The answer is minimization. The law requires the government to follow minimization procedures, such as by limiting the hours when the surveillance will take place, or by targeting or eliminating certain incoming or outgoing phone numbers based on an analysis of which ones are most likely to be related to Tony’s criminal activities.

Similar minimization requirements apply under the old and new FISA statutes. In order to obtain a surveillance order from the FISA court, the government must certify that it has in place minimization procedures to ensure that the surveillance only captures communications relevant to the gathering of foreign intelligence. Again, the FISA statute specifically requires the FISA court to approve the minimization procedures in order to ensure that the surveillance complies with the Fourth Amendment. While intelligence agencies are understandably secretive about the minimization procedures they employ so as to avoid giving a road map to targets as to how to avoid surveillance, it is generally believed that the procedures employ “algorithms” such as word searches or formulas involving patterns of communications with individuals in specific countries in order to minimize the interception of communications unrelated to foreign intelligence.

It should be emphasized that it is actually in the interest of the intelligence agencies to have meaningful minimization procedures, not only for the protection of privacy rights, but also to make the surveillance productive from an intelligence-gathering perspective. As noted above, I do have some concern that the new law is overinclusive, and will result in the interception of so many irrelevant communications that the ones truly useful to intelligence gathering will be lost. Effective minimization is essential to being able to “separate the wheat from the chaff.”

It will take some time to see if FISA’s minimization rules – which are completely unchanged by the new statute – strike an appropriate balance between the need to gather foreign intelligence information and the protection of privacy. What is important, however, is the fact that this will be worked out under the supervision of the FISA court. And again, the statute specifically directs the FISA court to tailor the minimization rules in order to ensure compliance with the Fourth Amendment. The notion being promulgated by alarmist opponents of FISA that the new FISA statute empowers the Executive branch to engage in wholesale invasions of privacy, without any check by the Judiciary, is untrue.

Technical Problems With The New FISA Statute

Before turning to the issue of telcom immunity, I’d like to refer to three technical aspects of the new FISA statute that are potentially problematic, although they do not rise to the level of creating a constitutional issue. First, there is a provision empowering the Executive to engage in warrantless surveillance when “exigent circumstances” are present. The old FISA statute also contained such a provision, and it required that such warrantless interception in exigent circumstances would be permitted so long as the government made an application to the FISA court to approve the interception within seventy-two hours (three days) of beginning the interception. The new statute is essentially the same, except it extends the time period for the government’s application from three days to seven days. I personally do not see the need for this change, as it is difficult to foresee a situation in which a period of three days would be insufficient to submit an application to the FISA court. However, I also don’t see that the difference between three days and seven days raises a constitutional defect in the new statute. And looking at the big picture, I agree with Obama’s assessment that the public’s need for comprehensive foreign intelligence capabilities outweighs what seems to me to be a minor technical defect in the statute.

The second technical issue in the new statute concerns a provision that states that if the FISA court rejects the government’s application to conduct an interception, the government may continue conducting the interception while it pursues an appeal from the FISA court’s ruling. This in itself seems appropriate. If the appeals court were to overturn the FISA court and rule that the interception should have been authorized, then it would be, of necessity, too late to undo the FISA court’s mistake, as the opportunity to intercept the communications would have already been lost. All that the new FISA statute does is to impose an automatic stay of the FISA court’s ruling pending appeal; such stays are a well-accepted aspect of American jurisprudence, and there is hardly anything radical about this aspect of the new FISA statute.

A more troubling aspect of this provision states that if there is ultimately a ruling by the appellate court that the interception should not be authorized, then the government may nevertheless keep and use the communications it has intercepted to that point. Here, it seems clear to me that the Fourth Amendment would be violated if the government attempted to use the illegally-obtained interceptions in connection with a criminal prosecution, and the statute does explicitly prohibit the use of such evidence in any court proceedings. However, it is important to recall that the purpose of both the old and new FISA statutes is to enable the government to gather foreign intelligence, and not to pursue criminal prosecutions. In that context, I am much less troubled about the prospect of the government being able to use the information for intelligence purposes, notwithstanding any ultimate ruling by the courts on the validity of the government’s application.

The third technical problem concerns the provision in the new statute prohibiting "reverse targeting" of U.S. persons. Opponents of the statute contend that this provision lacks sufficient "teeth". I'm not sure that I understand this argument, as the new statute clearly empowers the FISA court to review "targeting procedures" so as to prevent the intentional acquisition of communications occurring wholly within the U.S.

The Problem of Telcom Immunity

As emphasized previously, the problem of telcom immunity arises only because the Bush Administration chose to ignore both the FISA statute and the constitutional principle of separation of powers by conducting warrantless surveillance, instead of asking Congress to amend the FISA statute. Numerous telecommunications companies acceded to the Bush Administration’s requests for assistance in this venture. The legal status of these companies is now at issue.

FISA includes a provision stating that any “person” who engages in a violation of FISA is, in addition to facing potential criminal liability, civilly liable to anyone whose communications were wrongfully intercepted. The amount of the liability is the greater of the plaintiff’s actual damages, or liquidated damages of $1,000 or $100 for each day of unlawful surveillance.

It should be noted that FISA states that any “person” may be held civilly liable; the statute does not authorize lawsuits against the government itself. Civil suits against the government are generally barred by the doctrine of “sovereign immunity”, unless there is a specific statute authorizing such a lawsuit, and as noted, there is no such authorization in FISA.

FISA suits may, however, be brought against individual government officials who participated in any surveillance in violation of FISA, potentially including Bush himself. Many such suits have in fact been filed. There is nothing in the new FISA statute that would change this, so the potential for suing Bush, Cheney, et al., still exists. Most such lawsuits have thus far been unsuccessful because of the plaintiff’s inability to prove “standing”, i.e., showing that the plaintiff was in fact the target of warrantless surveillance.

Numerous lawsuits have also been filed against telecommunications companies. Presumably, these lawsuits would face the same standing hurdle that has thus far doomed lawsuits filed against government officials. I therefore fail to understand the claim of FISA opponents such as the ACLU that telcom immunity is part of the Bush Administration's "cover-up", and that suits against telecommunications companies are the only way we can pursue this matter in the courts and get to the truth. If a plaintiff can prove standing, he or she can still sue responsible government officials, and if the plaintiff cannot prove standing, then a lawsuit against a telecommunication company will be no more viable than a lawsuit against a government official.

Assuming, however, that the standing obstacle could somehow be overcome, there is another issue that is raised by lawsuits against telecommunications companies, and that is what leads to the thorny issue of telcom immunity. As noted, you can’t sue the government for violating FISA because of the doctrine of sovereign immunity. There is a related legal doctrine known as “private contractor immunity” which holds that when a private party acts at the behest of the government in carrying out a governmental function, then the private party is also immune from suit by an extension of sovereign immunity. The private contractor immunity doctrine is quite controversial, and it is not clear-cut that that the doctrine would apply to a suit against a telecommunications company that participated in a violation of FISA. However, the concern of the telecommunications companies is that they would not even have an opportunity to raise the issue, and therefore could not get a fair hearing in a civil lawsuit.

The reason for this is the continuing secrecy that has cloaked the Bush Administration’s warrantless surveillance program. Indeed, to date, the Bush Administration has not even officially admitted that the program existed. Thus, the fear of the telecommunications companies is that if they raised the defense of private contractor immunity, the Bush Administration would refuse to provide any information in court that might show what the companies did and why they did it. The result could well be that the telecommunications would be denied the opportunity to raise the defense of private contractor immunity, not because the defense lacks merit, but simply because of the Bush Administration’s refusal to provide any information about the warrantless surveillance program. While many liberals may not be very concerned about fairness to telecommunications companies, a fair-minded view of the situation would have to concede that these companies do have a point in raising the issue of the need for some form of civil immunity.

The new FISA statute deals with the issue in a compromise fashion, although opponents of the statute prefer to categorize this as a capitulation to the demands of the Bush Administration and the telecommunications companies. Under the new statute, lawsuits against telecommunications companies for assisting in warrantless surveillance during the period from September 11, 2001 to January 17, 2007 will be dismissed if the Attorney General files a certification stating that the assistance provided by the company was done pursuant to a written directive from the President, and that the purpose of the interception was to prevent a terrorist attack against the U.S. The court in which the lawsuit is pending is empowered to conduct discovery and require the production of additional information from the government in order to determine whether or not the certification is in fact supported by substantial evidence.

Obama’s position was that the telcom immunity provision should have been deleted, or at least held in abeyance, until we know more about what actually occurred in Bush’s warrantless surveillance program. Granting any form of immunity now seems like “buying a pig in a poke”. Notably, in one of the highly salutary provisions of the new statute, the offices of the Inspector General of the Department of Justice, Department of Defense, Director of National Intelligence, and National Security Agency, are required to submit reports to Congress concerning the nature and scope of Bush’s warrantless surveillance program. One of the unsuccessful amendments to the new statute supported by Obama and others would have delayed the effectiveness of the telcom immunity provision until after the completion of these reports.

Given the intransigence of the Bush Administration and the Congressional Republicans in supporting telcom immunity, Obama made the correct call in determining that the shortcomings in the immunity provision do not provide a sufficient reason for voting against the statute. My reasoning is as follows:

First, there is no reason to view the certification procedure set forth in the telcom immunity provision as a meaningless exercise. Immunity will be granted only if a court determines that there is substantial evidence establishing that the company acted at the specific written directive of the President, and that the purpose of the interception was to prevent a terrorist attack against the U.S. Under this provision, some measure of judicial scrutiny will be brought into the process, and immunity will not be given out on a wholesale basis. Most importantly, immunity will not be available in any case in which the surveillance was conducted for improper or political purposes, unrelated to the prevention of a terrorist attack against the U.S.

Second, if Obama becomes President, there is no reason why he cannot authorize full disclosure of the extent of wrongdoing committed by the Bush Administration in conducting warrantless surveillance. Specifically, there is no reason why Obama cannot disclose the identities of any persons whose communications were wrongfully intercepted. Such persons could then readily establish standing to bring suits against individual officials in the Bush Administration. As noted, the new FISA statute does not grant immunity, civil or criminal, to officials of the Bush Administration who participated in violations of FISA.

Stop Dumping On Obama

In sum, the enactment of the new FISA statute does not mean that the constitution is dead. Nor does it mean that Obama is a dishonest politician unworthy of our support. On the contrary, Obama’s well thought-out position on the new FISA statute indicates to me that he is a careful legislator, capable of understanding important nuances, fully cognizant of the fact that compromise is the essence of the democracy.

A reader may wonder why any credence should be paid to what I have to say on this issue, when constitutional “experts” such as Professor Turley and the ACLU have been so vehement in their opposition to the new FISA statute. Notably, Morton Halperin, a well-known civil libertarian who was himself the target of unlawful warrantless surveillance during the Nixon Administration, has spoken publicly in favor of the new statute. The ACLU has a particular view about constitutional law, a view that, for the most part, has never been accepted by the Supreme Court or any other court, and is well outside of the mainstream of constitutional analysis. In this regard, it should be emphasized that the ACLU opposed such widely-supported security measures as airport inspection procedures. The ACLU also opposed the old FISA statute, which it also believes to be unconstitutional.

Civil libertarians are fond of quoting Benjamin Franklin’s aphorism that “those who would exchange liberty for security deserve neither.” In considering how much weight to give to that remark, I am tempted to quote a line from the song that Benjamin Franklin’s character sings in the musical “1776”:

“The things I write, are only light, extemporanea.”

While Franklin's quip is a useful reminder of the need to protect constitutional rights in times of national emergencies, it is, in many ways, better suited to being used as a bumper sticker rather than a foolproof guide to public policy. In fact, we balance personal liberty against public safety all the time: when we require airline passengers to permit their persons and belongings to be searched, or for that matter, when we require all Americans to file accurate tax returns laying bare the details of their financial lives. Life is more complicated than is imagined by the ACLU and its supporters.

So, I would urge liberals to calm down. Stop, think, and remember: we have a unique opportunity this year to elect a new President who is really, really special.