thedrifter
07-30-07, 05:46 AM
July 30, 2007
FISA and the Power to Defend from Terror
By Al Johnson
Uncovering terror cells is going to require us to maximize our technological advantages. One obstacle is FISA, the Foreign Intelligence Surveillance Act.
The New York Times recently revealed that a data mining program was the subject of the legal dispute that led to Albert Gonzales' famous hospital visit to then-AG John Ashcroft. It was not the Terrorist Surveillance Program; rather, it had to do with the Able Danger data mining operation being conducted by the NSA. It may have run afoul of FISA, the Foreign Intelligence Surveillance Act, and thus led to a dispute between DoJ and NSA (which comes under DoD) over which of the two entities of the Executive Branch should have jurisdiction over it.
Of course, this jurisdictional dispute would also have serious legal repercussions affecting what information could be collected, by what means, to whom it could be disseminated and for what purposes it could be used. Captain's Quarters had a fascinating post yesterday, "Able Danger, Alberto Gonzales, and the Senate," that echoed in the blogosphere.
We need to tread carefully here; no one except the actual participants in the hospital discussion can be sure of what the issues were. However, Orin Kerr and Marty Lederman make educated guesses that are probably not far off the mark.
First Kerr:
(3) Presumably the authorization that Card & Gonzales wanted Ashcroft to sign was a 18 U.S.C. 2511(2)(a)(ii)(b) certification that the phone companies would have demanded before proceeding, which is "a certification in writing by . . . the Attorney General of the United States that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required." But we still don't know exactly what the legal issues were that were in dispute. I can come up with about 10 different theories, but I just don't know which one is particularly likely to be right.
(4) I'm puzzled by the newspaper's claim that searching a database of non-content call records disclosed by the phone companies requires a court order. It doesn't in the criminal law context: the Wiretap Act only applies for contemporaneous acquisition, and once there is a proper disclosure under the Stored Communications Act the data can be searched without any legal restrictions. But I wonder, does FISA require a court order in that setting? Or maybe the government wasn't relying on a voluntary disclosure theory? Or is the Times just getting this detail wrong? I'm not sure.
Toward the end of a lengthy analysis Lederman writes:
I think what happened is that the data mining revealed something that the NSA, with DOJ's blessing, followed up on, perhaps using quite long and attenuated "connections" (e.g., phone calls and e-mails three degrees of separation removed) -- what Risen and Lichtblau's original story referred to as "an expanding chain" -- and this follow-up surveillance involved purely domestic communications, as well as communications of persons for whom there was no probable cause to believe they were Al Qaeda agents. Further speculation, with links to plenty of other bloggers, here.) If this is correct, then it was the follow-up surveillance, not the data mining, that was the legal problem -- it didn't satisfy FISA because whatever it was NSA learned from the data mining, it was something far short of probable cause that all the subsequent targets were agents of Al Qaeda. And OLC concluded that Article II did not justify disregarding FISA.
Goldsmith reportedly insisted that the surveillance be justified based on the AUMF, which imposed two limitations:
a. First, on the view of the Court in Hamdi (later explained in much greater detail by Jack Goldmsith and Curt Bradley in their Harvard Law Review article on the AUMF), the AUMF only authorizes conduct that had historically been undertaken by the President in wartime. Roosevelt and other Presidents had intercepted overseas telegrams and other international communications; but there was no precedent for interception of wholly domestic communications without court approval.
b. Second, the AUMF itself requires a nexus to those responsible for 9/11 -- which is where the OLC [DoJ's Office of Legal Counsel, headed by Goldsmith] requirement came from that the communications involve at least one person in, or associated with, Al Qaede or related groups.
So OLC insisted these two criteria be satisfied in order to avoid FISA's strictures.
Please note: when all is said and done, we are once again dealing with restrictions placed by Congress, through its enactment of FISA, on the President's authorities and responsibilities as Commander in Chief. Note, too, that no court that has considered this issue has been willing to rule that Congress can statutorily limit the President's Constitutional powers and duties.
Finally, however, note that the Supreme Court does enter into this picture via the Hamdi decision and that, in Goldsmith's view, Hamdi limits the president's constitutional powers through by its interpretation of congress' Authorization for the Use of Military Force (AUMF). Nevertheless, none of these issues with regard to the AUMF would probably have been in play at all but for the enactment of FISA. This entire imbroglio ultimately comes back to FISA and resulted in the inter-agency jurisdictional squabbles that appear to have been behind the hospital visit.
Without minimizing the need to safeguard civil liberties, I doubt that I'm alone in questioning whether these behind the scenes constitutional and legal disputes have done any good as far as protecting the United States and its inhabitants from the terrorist threats that we face. Restricting the President's actions in defense of this republic to those actions undertaken by previous presidents would appear to be a grossly wrongheaded and unreasonable approach. By some accounts the NSA is collecting only a third of the information that it should ideally be collecting, due to legal issues.
It seems that the Democrats are, belatedly, becoming concerned with their image: they are concerned that they may be portrayed as unreasonably hampering legitimate requirements of the national defense and are seeking a face-saving, cover-their-behind patch of FISA, while at the same time continuing to bluster and threaten and obstruct almost all the President's national security initiatives.
Isn't it time that this nation had an open and freewheeling debate on FISA and Congressional and Judicial attempts to micromanage even the tactical aspects of the President's national security powers and duties? Isn't the defense and security of this nation too important to be left to the lawyers?
If FISA is unconstitutional as it restricts the President's Constitutional powers and duties, let's have it out. And if Congress, through FISA or an AUMF, can constitutionally restrict the President's powers and duties, we'll at least know who is to blame if we suffer another 9/11 type of attack. It will be the Party of Defeat, which has consistently politicized national security.
Ellie
FISA and the Power to Defend from Terror
By Al Johnson
Uncovering terror cells is going to require us to maximize our technological advantages. One obstacle is FISA, the Foreign Intelligence Surveillance Act.
The New York Times recently revealed that a data mining program was the subject of the legal dispute that led to Albert Gonzales' famous hospital visit to then-AG John Ashcroft. It was not the Terrorist Surveillance Program; rather, it had to do with the Able Danger data mining operation being conducted by the NSA. It may have run afoul of FISA, the Foreign Intelligence Surveillance Act, and thus led to a dispute between DoJ and NSA (which comes under DoD) over which of the two entities of the Executive Branch should have jurisdiction over it.
Of course, this jurisdictional dispute would also have serious legal repercussions affecting what information could be collected, by what means, to whom it could be disseminated and for what purposes it could be used. Captain's Quarters had a fascinating post yesterday, "Able Danger, Alberto Gonzales, and the Senate," that echoed in the blogosphere.
We need to tread carefully here; no one except the actual participants in the hospital discussion can be sure of what the issues were. However, Orin Kerr and Marty Lederman make educated guesses that are probably not far off the mark.
First Kerr:
(3) Presumably the authorization that Card & Gonzales wanted Ashcroft to sign was a 18 U.S.C. 2511(2)(a)(ii)(b) certification that the phone companies would have demanded before proceeding, which is "a certification in writing by . . . the Attorney General of the United States that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required." But we still don't know exactly what the legal issues were that were in dispute. I can come up with about 10 different theories, but I just don't know which one is particularly likely to be right.
(4) I'm puzzled by the newspaper's claim that searching a database of non-content call records disclosed by the phone companies requires a court order. It doesn't in the criminal law context: the Wiretap Act only applies for contemporaneous acquisition, and once there is a proper disclosure under the Stored Communications Act the data can be searched without any legal restrictions. But I wonder, does FISA require a court order in that setting? Or maybe the government wasn't relying on a voluntary disclosure theory? Or is the Times just getting this detail wrong? I'm not sure.
Toward the end of a lengthy analysis Lederman writes:
I think what happened is that the data mining revealed something that the NSA, with DOJ's blessing, followed up on, perhaps using quite long and attenuated "connections" (e.g., phone calls and e-mails three degrees of separation removed) -- what Risen and Lichtblau's original story referred to as "an expanding chain" -- and this follow-up surveillance involved purely domestic communications, as well as communications of persons for whom there was no probable cause to believe they were Al Qaeda agents. Further speculation, with links to plenty of other bloggers, here.) If this is correct, then it was the follow-up surveillance, not the data mining, that was the legal problem -- it didn't satisfy FISA because whatever it was NSA learned from the data mining, it was something far short of probable cause that all the subsequent targets were agents of Al Qaeda. And OLC concluded that Article II did not justify disregarding FISA.
Goldsmith reportedly insisted that the surveillance be justified based on the AUMF, which imposed two limitations:
a. First, on the view of the Court in Hamdi (later explained in much greater detail by Jack Goldmsith and Curt Bradley in their Harvard Law Review article on the AUMF), the AUMF only authorizes conduct that had historically been undertaken by the President in wartime. Roosevelt and other Presidents had intercepted overseas telegrams and other international communications; but there was no precedent for interception of wholly domestic communications without court approval.
b. Second, the AUMF itself requires a nexus to those responsible for 9/11 -- which is where the OLC [DoJ's Office of Legal Counsel, headed by Goldsmith] requirement came from that the communications involve at least one person in, or associated with, Al Qaede or related groups.
So OLC insisted these two criteria be satisfied in order to avoid FISA's strictures.
Please note: when all is said and done, we are once again dealing with restrictions placed by Congress, through its enactment of FISA, on the President's authorities and responsibilities as Commander in Chief. Note, too, that no court that has considered this issue has been willing to rule that Congress can statutorily limit the President's Constitutional powers and duties.
Finally, however, note that the Supreme Court does enter into this picture via the Hamdi decision and that, in Goldsmith's view, Hamdi limits the president's constitutional powers through by its interpretation of congress' Authorization for the Use of Military Force (AUMF). Nevertheless, none of these issues with regard to the AUMF would probably have been in play at all but for the enactment of FISA. This entire imbroglio ultimately comes back to FISA and resulted in the inter-agency jurisdictional squabbles that appear to have been behind the hospital visit.
Without minimizing the need to safeguard civil liberties, I doubt that I'm alone in questioning whether these behind the scenes constitutional and legal disputes have done any good as far as protecting the United States and its inhabitants from the terrorist threats that we face. Restricting the President's actions in defense of this republic to those actions undertaken by previous presidents would appear to be a grossly wrongheaded and unreasonable approach. By some accounts the NSA is collecting only a third of the information that it should ideally be collecting, due to legal issues.
It seems that the Democrats are, belatedly, becoming concerned with their image: they are concerned that they may be portrayed as unreasonably hampering legitimate requirements of the national defense and are seeking a face-saving, cover-their-behind patch of FISA, while at the same time continuing to bluster and threaten and obstruct almost all the President's national security initiatives.
Isn't it time that this nation had an open and freewheeling debate on FISA and Congressional and Judicial attempts to micromanage even the tactical aspects of the President's national security powers and duties? Isn't the defense and security of this nation too important to be left to the lawyers?
If FISA is unconstitutional as it restricts the President's Constitutional powers and duties, let's have it out. And if Congress, through FISA or an AUMF, can constitutionally restrict the President's powers and duties, we'll at least know who is to blame if we suffer another 9/11 type of attack. It will be the Party of Defeat, which has consistently politicized national security.
Ellie