Thursday, August 09, 2007 Are New FISA Sections 105A and 105B Mere Window Dressing? Are They Constitutional? Marty Lederman
In comments to a post of mine below, "Just an Observer" begins a very interesting discussion, joined by "occasional observer," concerning whether the certification procedure in new FISA sections 105B and 105C of the Protect America Act is mandatory or merely optional. JaO and OO have asked me to weigh in.
I don't have that much to add. JaO is correct, I think, that the certification procedure of 105B and 105C is merely optional. The only incentive the government has to use the procedure is in order to compel cooperation from service providers (telecoms, ISPs, etc.), and to give such providers some legal cover when they give assistance (although as JaO points out, the legal cover might not be much more than they already enjoy).
I don't think the Administration ever contemplated not using the procedure -- it's very beneficial to them and imposes very minimal burdens -- but even if they don't, I am not sure it would be a big deal, for two reasons.
First, in order for a surveillance program to fall within section 105B in the first place, it has to consist purely of acquisitions that are not "electronic surveillance" -- i.e., something that either wasn't covered by FISA already, or that is now not covered by virtue of the new carve-out in section 105A. So 105B and 105C do not provide any additional authorization authority for stuff that would otherwise be FISA-covered.
Second, the certification burden on the government is virtually toothless -- the NSA should be able to obtain court sign-off on the program without much trouble. See the final three paragraphs of this post. And as Orin points out today, even in the unlikely even the FISA court rejects a certification, the program would remain in effect unless and until the Supreme Court affirms that FISA court decision.
There is, however, one potentially important ramification -- in addition to losng the ability to compel service providers for assistance -- if the NSA chooses not to use a "certified" program under 10B and 105C: In that case, the NSA presumably would not have to follow FISA's minimization requirements, which would be required in the case of a certified program. FISA minimization (50 USC 1801(h)) would require:
(1) specific procedures, . . . reasonably designed in light of the purpose and technique of the particular surveillance, to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information (unless the information is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes); and (2) procedures that require that nonpublicly available information, which is not foreign intelligence information shall not be disseminated in a manner that identifies any United States person, without such person's consent, unless such person's identity is necessary to understand foreign intelligence information or assess its importance (with a similar evidence-of-crime exception).
Such minimization procedures might be quite important, and valuable -- yet they could be avoided if the Administration opts out of the certification process (something I doubt they will do). he statute subjects such surveillance to certain procedures, minimization requirements, FISC review, and congressional oversight."]
All of which is to say -- and I think JaO and I agree here -- that the real action in the new law is in section 105A, which simply exempts a huge amount of international communications from FISA altogether (even if the minimization requirements would apparently come back into play under a certified program). Anonymous Liberal calls this a "major legal loophole," but I don't quite understand how it's a "loophole"; it is, rather, the very be-all and end-all of the Act.
One other thing -- there is a very serious question under Article III of the Constitution whether the FISA Court can issue the sort of "programmatic" order contemplated by section 105C, which is one further major step removed from the individual warrant analogy that was the original constitutional justification for the role of the FISA court when it comes to approving electronic surveillance.
Not directly on the statutory analysis, but the power of 105A is being exercised in the consolidated cases (multi-district litigation) in the ND of California. The government filed a notice yesterday informing the court that even if the government's other arguments fail, the new statute produces the same result. . Case M:06-cv-01791-VRW for the PACER enabled. (plaintext here) # posted by cboldt : 9:37 PM
I agree completely with your post, Marty. I think whether you consider this a "loophole" or not has a lot to do with your baseline expectations. Until today, I hadn't focused on the text of the act of itself, but based on what I'd read in the media and in blog posts, I had assumed that these oversight procedures that everyone had been discussing and debating were mandatory, i.e., that if the president wanted to use these new surveillance powers, he'd at least have to jump through a few hoops. But it doesn't appear that's the case.
This may be obvious to people who are very familiar with FISA and it may well have been the intention of those who proposed this legislation, but I'd be very surprised if the reporters covering this story (or even many members of Congress) were aware that these new procedures are basically optional and can be completely disregarded if the President so chooses. I think if that was explained to them, they'd consider this a legal loophole.
But whether we call it a loophole or not, I think we have to try to educate journalists (and Congress!) about this point, because I really don't think it's widely understood. # posted by A.L. : 9:49 PM
I'm still not completely clear on the interactions between the various statutory parts -- I think they are deliberately "dense." . I don't take the notice to Judge Walker as conclusive that the DNI and AG find 105B (and 105C flowing from that) as mandatory for ALL "not electronic surveillance." . But even if 105B surveillance IS undertaken (I assume it will be), that 105B "not electronic surveillance" doesn't necessarily represent the grand total of "not electronic surveillance" being undertaken. Some subset of the "not electronic surveillance" will easily fit in the contours of 105B, so there will be action there . Or, said another way, some, but not all 105A surveillance is 105B surveillance. I may change my mind on that if I can ever untangle the function of 105B(a)(2). . But on the point of 105B having some effect, 105B(f) is what provides the authority to pay the telco for the data/hardware and/or manpower. 105B(g) provides the compulsion widget, which might be necessary to get Qwest off the dime. 105B(l) is the carrot of immunity, and 105(m) is the "may scrub" license. Those provisions are helpful to obtain "cooperation." # posted by cboldt : 10:38 PM
Professor Lederman:
One other thing -- there is a very serious question under Article III of the Constitution whether the FISA Court can issue the sort of "programmatic" order contemplated by section 105C, which is one further major step removed from the individual warrant analogy that was the original constitutional justification for the role of the FISA court when it comes to approving electronic surveillance.
What is your reasoning here?
It is well established among the circuit courts (and is unlikely to be revisited by this Supreme Court) that the 4th Amendment does not require warrants for intelligence gathering against agents of foreign powers inside the US. Consequently, Congress cannot be said to be using its necessary and proper powers to enable the 4th Amendment when it enacted FISA. Instead, Congress allegedly used a heretofore unknown Article I power to direct foreign intelligence gathering and simply created a faux warrant system to enforce FISA's restrictions on the Executive's Article II powers.
That being the case, I see no reason why FISA "warrants" have to comport in any way to 4th Amendment requirements of form or substance unless Justice wants to use the evidence gained under such a warrant as evidence in a criminal trial. # posted by Bart DePalma : 10:42 PM
First. Marty, thank you for your post and your kind remarks.
I am intrigued by the quote you cite from the filing in CCR v Bush:
Moreover, because the statute subjects such surveillance to certain procedures, minimization requirements, FISC review, and congressional oversight, Plaintiffs' allegations of a First Amendment chill are further negated.
Is the administration really asserting that literally all "such surveillance" -- the immediate antecedent for which clause being "any alleged surveillance directed at individuals outside the United States" -- is subject to minimization, FISC review and congressional oversight? I doubt this very much.
I do not believe that if the government surveils someone locally in Moscow or Islamabad, these conditions attach. I do not believe minimization occurs at all in cases like that, and certainly not any form of FISC review.
So the only fair reading of the quote above is "the statute subjects such surveillance ..." But the administration, for political reasons, would like us to assume otherwise. # posted by JaO : 11:09 PM
Bart: Read carefully. I didn't say anything about the Fourth Amendment here. I said there was an Article III issue.
In earlier posts, I have raised a difficult Fourth Amendment question. That question would not be nearly so difficult, nor interesting, if all of the surveillance covered by section 105A dealt exclusively with "agents of foreign powers inside the U.S." The problem is that the surveillance here will acquire communications of plenty of people inside and outside the U.S. who are *not* agents of foreign powers. # posted by Marty Lederman : 11:34 PM
As for the minimization verbiage in 105B, it is worth remembering that one big requirement is missing there, relative to the minimization actually required under FISA court orders -- court review. The government must file its detailed minimization procedure in applying for a court order, and the court must approve it. But left to its own unchecked devices under 105B, the executive can easily bend the tradeoffs, stated in general terms in the 50 USC 1801(h) definitions, too far in its own favor.
Nevertheless, the skeletal definition of minimization is not nothing. If the government wants to build databases for reverse-targeting to avoid domestic FISA warrants, as well as various methods of data mining, it is hugely advantageous to be unfettered by minimization altogether. # posted by JaO : 12:34 AM
I agree with JaO and Marty, seeing the error of my ways. But I'm troubled because I also see how I was snookered and, worse, why (H/T JaO). But that's irrelevant. What's truly awful here is that most of Congress and the informed public were also snookered and remain so.
In his discussion with the White House, Orin Kerr was given to assume that 105B is mandatory. The ACLU seems to be under the same impression. Yesterday it filed a motion before the FISA court seeking to unseal its January 10 order approving the then-TSP, any follow-up orders, and all government briefs. (See TPM Muckraker for the link.) Commenting on the act, the ACLU said "the law's implications are dramatic." As I said pointing to the link under the previous post, if JaO is right, they ain't seen nothin' yet -- and may never.
The act brims with drafting tricks. Words in 105B and C track those of 105A to suggest that B and C police the opening 105A creates. At the heart of it is the common phrase "directed at a person reasonably be1lieved to be located outside of the United States." 105B seems to flesh it out through DNI/AG certified guidelines that meet minimization standards and pass judicial muster. Even the caption "Additional Procedures" spans both A and B.
The PR campaign during the run-up to the enactment added to the confusion. It spoke of amending FISA, not cutting it off at the knees. 105A's carve-out is so broad that, unpoliced, it stands to eviscerate protections against domestic surveillance. Ergo .... (Yeah, right!) Earlier the DOJ filing in the multi-district litigation might have confused me. Now I see that it no more limits how the law will be used than does the pre-enactment or current politico-academic spin.
As for how toothless the "clearly erroneous" standard is, recall that Orin Kerr thought it had bite. The FISA court after all has said "No" to a program.
I'm still unsure that the volunteer telecoms would forego the law's going-forward immunity, which is awfully inviting. I think a lot will turn on the outcome of Hepting v. AT&T, which as I noted earlier is scheduled for oral argument before the 9th Circuit on August 15. That and the ACLU motion are where I pin my hopes within the judicial system, such as they are.
But what about a legislative fix? I'd liken the act -- though for reasons all its own (the administration's bag tricks being bottomless) -- to the amendment that was slipped into the USA PATRIOT Act, the one that would have enabled the White House to avoid Senate confirmation of its replacement US Attorneys. That is now history; this act deserves a fate no kinder.
I'd urge people to get the word out early and often. There's even less reason to stand for this law than before, and what's new can be readily framed so as to put the law in a nasty light, one that should gall most anyone (leaving aside the 28%ers and cynical savants). In fact the truth of the matter stands talking points about "terrorist loopholes" on their head. In short, I share Anonymous Liberal's ire, having come halfway through the maxim that starts "Fool me once ...."
# posted by occasional observer : 1:48 AM
Whatever else one may say about it, the administration has a flair for irony. Its "Notice of Statutory Amendments" filed with Judge Walker in California skips past 105A and opens a comforting summation of 105B with the words "In relevant part ...."
Of course the ability to legally intercept any individual communication using such means is not the same thing as the ability to monitor large amounts of communication for key phrases or identifiable voices. For that you need big computers that are best located in or near domestic switching centers. Thus this bill enables entire programs of communications monitoring that would not be both legal and technically reasonable without it.
If the NSA can now monitor all telephone calls from Pakistan and Afghanistan with equipment that can detect Bin Laden's voice, the fact that such equipment will process and ignore someone's birthday call home to relatives does not invade their privacy.
Yes, but -- ignoring that there are lots of persons outside the US besides OBL -- it comes down to what's being made feasible. And a quantitative difference can amount to a qualitative one, particularly where the administrator conflates the national security with the enhancement of partisan and executive power.
What rankles me no less is that congressional oversight provisions are stripped out. This will not catch terrorists. And how is Congress to decide whether to extend in 6 months knowing no more than it does now? The answer is being written before our eyes this weekend.
# posted by occasional observer : 12:45 PM
I think oo has it right. The discomfort everyone feels is not related to anti-military sentiment. It is that this tool is being given to folks who have used private email accounts to conduct official business in order to avoid subpoenas and national archiving requirements, claimed to be part of two branches of governments to assume the protections of both without the burdens of either, and fired competent USAGs for political reasons. Take people like Rove and Addington out of the executive, and it will have an entirely different feel - though the the potential for them or those like them to return should still be cause for alarm regarding the current bill.
I want to believe that you are correct. However, we all know that this administration has removed such obstacles from all areas of our government, to include its military and executive agencies/departments. Neither the NSA nor the FBI are immune from careerism and certain of their members yielding to the whim of their current masters. On that score, didn't I read an allegation fairly recently that the FBI had been used to gather information on political opponents of the current administration? (This is intended to be a serious question as I deem myself to be apolitical.)
# posted by The Casual : 2:19
Like others I wish you were right. In A Pretext for War Jim Bamford gives a blow-by-blow description of the technical crisis 9/11 brought to the fore within the intelligence community. He painted picture like yours. I don't dispute it. It is authentic. But for Bamford it's a minor theme.
Let me repeat. The bill eliminates the oversight Congress had asked for. That demand had zero to do with catching terrorists. It had another reason: How we are governed is becoming more and more opaque, private, concentrated, and unanswerable to public opinion.
We see daily evidence that the civil service is being reprofessionalized in furtherance of these trends. The intelligence community is hardly immune to them. In most respects they can fit in simply by playing to type, for reasons brought out here.
What you see as restoring the spy business to the status quo ante is in a sense correct, but it is also in synergy with these antidemocratic trends, which are further along than most dare admit to themselves. Our republic is slipping away. This bill greases the skids.
When Does the Sun Set on Warrantless Surveillance?
Marty Lederman
I happen to have been in Iceland this year right around the summer solstice, when the sun never sets. Twilight in the middle of the night was somewhat haunting, spooky even.
Well, as several of our commentors have noted, the so-called six-month sunset provision of the "Protect America Act of 2007" is a bit of a ruse, because it's not clear the sun ever sets on the unchecked electronic surveillance of the Bush Administration. Although section 6(c) provides that the operative provisions of the Act "shall cease to have effect 180 days after the date of the enactment of this Act," i.e., on February 1, 2008, there is an express exception in section 6(d), which reads as follows: AUTHORIZATIONS IN EFFECT.—Authorizations for the acquisition of foreign intelligence information pursuant to the amendments made by this Act, and directives issued pursuant to such authorizations, shall remain in effect until their expiration. Such acquisitions shall be governed by the applicable provisions of such amendments and shall not be deemed to constitute electronic surveillance as that term is defined in section 101(f) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(f)). Thus, "acquisitions" authorized by Attorney General Gonzales will be permissible for one year, even if that period extends beyond the ostensible February 1, 2008 sunset date. I think it's fair to assume that the Attorney General will authorize a system of such acquisitions on or close to February 1, 2008, which will mean that the warrantless surveillance can continue until . . . February 1, 2009, or twelve days after the next President is sworn in.
Congress could, in theory, repeal section 6(d) if and when they enact a replacement statute. But it's safe to say this President would never sign a bill containing such a repeal. So it's likely the new surveillance will be in effect throughout the Bush Administration, even in the unlikely event that Congress lets the new Act "expire" on February 1, 2008.
New FISA Law to Get First Legal Challenge By Paul Kiel - August 10, 2007, 10:49 AM From the AP:
Lawyers for Guantanamo Bay detainees asked a federal judge Thursday to invalidate a days-old law that lets government agents eavesdrop on suspected terrorists without first getting court-approved warrants. They said the measure signed into law Sunday by President Bush is illegal because it gives the national intelligence director and the U.S. attorney general too much power to intercept communications of suspected terrorists overseas -- even when they are talking to someone in the United States.
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