FISA and the Power to Defend from Terror

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.

Update: This morning David Rivkin and Lee Casey offer an important analysis of this entire situation, stressing, as I have, the centrality of FISA to the continuing problem of providing an adequate defense against terror attacks on the United States.  One point they make is worth elucidating:

The TSP was not implemented pursuant to the Foreign Intelligence Surveillance Act (FISA), which permits a special federal court to issue surveillance orders when Americans and others are targeted for intelligence gathering inside the U.S. Rather than utilizing FISA's cumbersome and restrictive procedures, the administration relied on the president's inherent constitutional authority as commander in chief to monitor enemy communications in wartime, as presidents have done since Lincoln's day.

In addition, the administration correctly relied on Congress's Sept. 18, 2001, authorization for the use of military force against al Qaeda. In 2004, the Supreme Court ruled that this statute authorized the president to employ all the "fundamental incident[s] of waging war." This, by any reasonable standard, would include secretly listening in on the enemy's phone calls, and reading their faxes, emails and text messages.

Based on Rivkin and Casey's analysis it would appear that Professor Goldsmith and Acting AG James Comey were maintaining precisely that, in a time of war, FISA trumps the President's war powers when it comes to intelligence gathering within the US that is aimed at identifying enemy activity--even when that enemy is headquartered outside the US.  Significantly, Goldsmith and Comey maintained this position even though 1) the bi-partisan Congressional "Gang of Eight" Senators and Representatives had urged continuation of all NSA programs and 2) several Federal courts had suggested that FISA could not be interpreted as trumping the President's "inherent constitutional authority as commander in chief."  That Comey and Goldsmith should dig their heels in in face of the united Executive and Legislative branches as well as very pointed language in several Federal court opinions was quite extraordinary--and with barely a day's notice provided!.  It was especially so given that the technology in question--by which enemy communications that are are intended to occur outside the US are now often routed through the US--was one that the 1978 FISA framework could not possibly have envisioned.

In the face of such unreasonable legal dogmatism, Rivkin and Casey's closing paragraphs are a breath of fresh air. Read the whole thing. Their conclusion:

The question Judiciary Committee members should have been asking Mr. Gonzales was not whether he had misled them--he clearly did not--but whether the TSP is still functioning well. The question the public should be asking those senators--and with not much more civility than the senators showed Mr. Gonzales--is what are they going to do about it if the answer is no.
Al Johnson is a retired attorney.
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.

Update: This morning David Rivkin and Lee Casey offer an important analysis of this entire situation, stressing, as I have, the centrality of FISA to the continuing problem of providing an adequate defense against terror attacks on the United States.  One point they make is worth elucidating:

The TSP was not implemented pursuant to the Foreign Intelligence Surveillance Act (FISA), which permits a special federal court to issue surveillance orders when Americans and others are targeted for intelligence gathering inside the U.S. Rather than utilizing FISA's cumbersome and restrictive procedures, the administration relied on the president's inherent constitutional authority as commander in chief to monitor enemy communications in wartime, as presidents have done since Lincoln's day.

In addition, the administration correctly relied on Congress's Sept. 18, 2001, authorization for the use of military force against al Qaeda. In 2004, the Supreme Court ruled that this statute authorized the president to employ all the "fundamental incident[s] of waging war." This, by any reasonable standard, would include secretly listening in on the enemy's phone calls, and reading their faxes, emails and text messages.

Based on Rivkin and Casey's analysis it would appear that Professor Goldsmith and Acting AG James Comey were maintaining precisely that, in a time of war, FISA trumps the President's war powers when it comes to intelligence gathering within the US that is aimed at identifying enemy activity--even when that enemy is headquartered outside the US.  Significantly, Goldsmith and Comey maintained this position even though 1) the bi-partisan Congressional "Gang of Eight" Senators and Representatives had urged continuation of all NSA programs and 2) several Federal courts had suggested that FISA could not be interpreted as trumping the President's "inherent constitutional authority as commander in chief."  That Comey and Goldsmith should dig their heels in in face of the united Executive and Legislative branches as well as very pointed language in several Federal court opinions was quite extraordinary--and with barely a day's notice provided!.  It was especially so given that the technology in question--by which enemy communications that are are intended to occur outside the US are now often routed through the US--was one that the 1978 FISA framework could not possibly have envisioned.

In the face of such unreasonable legal dogmatism, Rivkin and Casey's closing paragraphs are a breath of fresh air. Read the whole thing. Their conclusion:

The question Judiciary Committee members should have been asking Mr. Gonzales was not whether he had misled them--he clearly did not--but whether the TSP is still functioning well. The question the public should be asking those senators--and with not much more civility than the senators showed Mr. Gonzales--is what are they going to do about it if the answer is no.
Al Johnson is a retired attorney.