WHAT IF WIRETAPPING WORKS?

WHAT IF WIRETAPPING WORKS? Wire Trap by Richard A. Posner Post date: 01.26.06 Issue date: 02.06.06 he revelation by The New York Times that the National Security Agency (NSA) is conducting a secret program of electronic surveillance outside the framework of the Foreign Intelligence Surveillance Act (fisa) has sparked a hot debate in the press and in the blogosphere. But there is something odd about the debate: It is aridly legal. Civil libertarians contend that the program is illegal, even unconstitutional; some want President Bush impeached for breaking the law. The administration and its defenders have responded that the program is perfectly legal; if it does violate fisa (the administration denies that it does), then, to that extent, the law is unconstitutional. This legal debate is complex, even esoteric. But, apart from a handful of not very impressive anecdotes (did the NSA program really prevent the Brooklyn Bridge from being destroyed by blowtorches?), there has been little discussion of the program's concrete value as a counterterrorism measure or of the inroads it has or has not made on liberty or privacy.

Not only are these questions more important to most people than the legal questions; they are fundamental to those questions. Lawyers who are busily debating legality without first trying to assess the consequences of the program have put the cart before the horse. Law in the United States is not a Platonic abstraction but a flexible tool of social policy. In analyzing all but the simplest legal questions, one is well advised to begin by asking what social policies are at stake. Suppose the NSA program is vital to the nation's defense, and its impingements on civil liberties are slight. That would not prove the program's legality, because not every good thing is legal; law and policy are not perfectly aligned. But a conviction that the program had great merit would shape and hone the legal inquiry. We would search harder for grounds to affirm its legality, and, if our search were to fail, at least we would know how to change the law--or how to change the program to make it comply with the law--without destroying its effectiveness. Similarly, if the program's contribution to national security were negligible--as we learn, also from the Times, that some FBI personnel are indiscreetly whispering--and it is undermining our civil liberties, this would push the legal analysis in the opposite direction.

Ronald Dworkin, the distinguished legal philosopher and constitutional theorist, wrote in The New York Review of Books in the aftermath of the September 11 attacks that "we cannot allow our Constitution and our shared sense of decency to become a suicide pact." He would doubtless have said the same thing about fisa. If you approach legal issues in that spirit rather than in the spirit of ruat caelum fiat iusticia (let the heavens fall so long as justice is done), you will want to know how close to suicide a particular legal interpretation will bring you before you decide whether to embrace it. The legal critics of the surveillance program have not done this, and the defenders have for the most part been content to play on the critics' turf.

ashington, D.C., which happens to be the home of The New Republic, could be destroyed by an atomic bomb the size of a suitcase. Portions of the city could be rendered uninhabitable, perhaps for decades, merely by the explosion of a conventional bomb that had been coated with radioactive material. The smallpox virus--bioengineered to make it even more toxic and the vaccine against it ineffectual, then aerosolized and sprayed in a major airport--could kill millions of people. Our terrorist enemies have the will to do such things. They may soon have the means as well. Access to weapons of mass destruction is becoming ever easier. With the September 11 attacks now more than four years in the past, forgetfulness and complacency are the order of the day. Are we safer today, or do we just feel safer? The terrorist leaders, scattered by our invasion of Afghanistan and by our stepped-up efforts at counterterrorism (including the NSA program), may even now be regrouping and preparing an attack that will produce destruction on a scale to dwarf September 11. Osama bin Laden's latest audiotape claims that Al Qaeda is planning new attacks on the United States.

The next terrorist attack (if there is one) will likely be mounted, as the last one was, from within the United States but orchestrated by leaders safely ensconced abroad. So suppose the NSA learns the phone number of a suspected terrorist in a foreign country. If the NSA just wants to listen to his calls to others abroad, fisa doesn't require a warrant. But it does if either (a) one party to the call is in the United States and the interception takes place here or (b) the party on the U.S. side of the conversation is a "U.S person"--primarily either a citizen or a permanent resident. If both parties are in the United States, no warrant can be issued; interception is prohibited. The problem with fisa is that, in order to get a warrant, the government must have grounds to believe the "U.S. person" it wishes to monitor is a foreign spy or a terrorist. Even if a person is here on a student or tourist visa, or on no visa, the government can't get a warrant to find out whether he is a terrorist; it must already have a reason to believe he is one.

As far as an outsider can tell, the NSA program is designed to fill these gaps by conducting warrantless interceptions of communications in which one party is in the United States (whether or not he is a "U.S. person") and the other party is abroad and suspected of being a terrorist. But there may be more to the program. Once a phone number in the United States was discovered to have been called by a terrorist suspect abroad, the NSA would probably want to conduct a computer search of all international calls to and from that local number for suspicious patterns or content. A computer search does not invade privacy or violate fisa, because a computer program is not a sentient being. But, if the program picked out a conversation that seemed likely to have intelligence value and an intelligence officer wanted to scrutinize it, he would come up against fisa's limitations. One can imagine an even broader surveillance program, in which all electronic communications were scanned by computers for suspicious messages that would then be scrutinized by an intelligence officer, but, again, he would be operating outside the framework created by fisa.

The benefits of such programs are easy to see. At worst, they might cause terrorists to abandon or greatly curtail their use of telephone, e-mail, and other means of communicating electronically with people in the United States. That would be a boon to us, because it is far more difficult for terrorist leaders to orchestrate an attack when communicating by courier. At best, our enemies might continue communicating electronically in the mistaken belief that, through use of code words or electronic encryption, they could thwart the NSA.

So the problem with fisa is that the surveillance it authorizes is unusable to discover who is a terrorist, as distinct from eavesdropping on known terrorists--yet the former is the more urgent task. Even to conduct fisa-compliant surveillance of non-U.S. persons, you have to know beforehand whether they are agents of a terrorist group, when what you really want to know is who those agents are.

Fisa's limitations are borrowed from law enforcement. When crimes are committed, there are usually suspects, and electronic surveillance can be used to nail them. In counterterrorist intelligence, you don't know whom to suspect--you need surveillance to find out. The recent leaks from within the FBI, expressing skepticism about the NSA program, reflect the FBI's continuing inability to internalize intelligence values. Criminal investigations are narrowly focused and usually fruitful. Intelligence is a search for the needle in the haystack. FBI agents don't like being asked to chase down clues gleaned from the NSA's interceptions, because 99 out of 100 (maybe even a higher percentage) turn out to lead nowhere. The agents think there are better uses of their time. Maybe so. But maybe we simply don't have enough intelligence officers working on domestic threats.

have no way of knowing how successful the NSA program has been or will be, though, in general, intelligence successes are underreported, while intelligence failures are fully reported. What seems clear is that fisa does not provide an adequate framework for counterterrorist intelligence. The statute was enacted in 1978, when apocalyptic terrorists scrambling to obtain weapons of mass destruction were not on the horizon. From a national security standpoint, the statute might as well have been enacted in 1878 to regulate the interception of telegrams. In the words of General Michael Hayden, director of NSA on September 11 and now the principal deputy director of national intelligence, the NSA program is designed to "detect and prevent," whereas "fisa was built for long-term coverage against known agents of an enemy power."

In the immediate aftermath of the September 11 attacks, Hayden, on his own initiative, expanded electronic surveillance by NSA without seeking fisa warrants. The United States had been invaded. There was fear of follow-up attacks by terrorists who might already be in the country. Hayden's initiative was within his military authority. But, if a provision of fisa that allows electronic surveillance without a warrant for up to 15 days following a declaration of war is taken literally (and I am not opining on whether it should or shouldn't be; I am not offering any legal opinions), Hayden was supposed to wait at least until September 14 to begin warrantless surveillance. That was the date on which Congress promulgated the Authorization for Use of Military Force, which the administration considers a declaration of war against Al Qaeda. Yet the need for such surveillance was at its most acute on September 11. And, if a war is raging inside the United States on the sixteenth day after an invasion begins and it is a matter of military necessity to continue warrantless interceptions of enemy communications with people in the United States, would anyone think the 15-day rule prohibitive?

We must not ignore the costs to liberty and privacy of intercepting phone calls and other electronic communications. No one wants strangers eavesdropping on his personal conversations. And wiretapping programs have been abused in the past. But, since the principal fear most people have of eavesdropping is what the government might do with the information, maybe we can have our cake and eat it, too: Permit surveillance intended to detect and prevent terrorist activity but flatly forbid the use of information gleaned by such surveillance for any purpose other than to protect national security. So, if the government discovered, in the course of surveillance, that an American was not a terrorist but was evading income tax, it could not use the discovery to prosecute him for tax evasion or sue him for back taxes. No such rule currently exists. But such a rule (if honored) would make more sense than requiring warrants for electronic surveillance.

Once you grant the legitimacy of surveillance aimed at detection rather than at gathering evidence of guilt, requiring a warrant to conduct it would be like requiring a warrant to ask people questions or to install surveillance cameras on city streets. Warrants are for situations where the police should not be allowed to do something (like search one's home) without particularized grounds for believing that there is illegal activity going on. That is too high a standard for surveillance designed to learn rather than to prove.

Richard A. Posner is a federal circuit judge and the author of the forthcoming Uncertain Shield: The U.S. Intelligence System in the Throes of Reform.

First, 50 USC 1802 is entirely inapplicable to the present discussion because that section deals solely with surveillance of non-U.S. persons. And in this discussion we are specifically addressing those situations that include a U.S. persons.

Second, even if §1802 did permit surveillance of U.S. persons, it does not contain, as you assert, the word "known", nor does the language you highlighted even imply such a standard.

Third, your standard that the subject be a "known" agent of a foreign power for the surveillance to be "reasonable", is so out of touch with legal reality, that it is even a greater standard than the courts already require for regular 4th Amendment searches, where the standard of reasonableness is "probable cause".

Fourth, since the In re: Sealed Case court held that "the President did have inherent [constitutional] authority to conduct warrantless searches to obtain foreign intelligence information", then the standard of reasonableness required in such cases is clearly less than the "probable cause" needed had a warrant been required. That would mean that, at most, a standard of "reasonable suspicion" might be required.

Fifth, the issue you raised in #37 regarding pre-FISA versus post-FISA court decisions is irrelevant, since the courts (both pre-FISA and post-FISA) based their holdings on a constitutional right of the President, and Congress is forbidden from infringing on a constitutional right.

ndt:

national security

Katz vs. United States

First, Katz was NOT a case dealing in any shape, manner or form with "national security" wiretaps. It was a simple domestic law enforcement case that involved wiretaps.

Second, Contrary to what you imply with your quote, Justice Douglas and Brennan's words are only a concurring opinion and not the decision of the majority. Moreover, their comments are dicta and not a holding by the court.

Third, The only time the phrase "national security" is used in the majority decision, was when Justice Stewart stated in a footnote...

"Whether safeguards other than prior authorization by a magistrate would satisfy the Fourth Amendment in a situation involving the national security is a question not presented by this case."

--Katz v. United States, 389 U.S. 347, 358 (1967), J. White concurring

Fourth, Not only did Justice Stewart note that the Katz court made no holding as to warrant requirements for national security cases, but Justice White, in a now famous concurrence stated...

"We should not require the warrant procedure and the magistrate's judgment if the President of the United States or his chief legal officer, the Attorney General, has considered the requirements of national security and authorized electronic surveillance as reasonable."

--Katz v. United States, 389 U.S. 347, 364 (1967), J. White concurring

Fifth, Both Justice Stewart and White noted that the issue of national security wiretaps wouldn't be considered by the Katz court, however since then the issue has been heard by numerous courts and virtually all them have held that "the President did have inherent [constitutional] authority to conduct warrantless searches to obtain foreign intelligence information."

Sixth, Your opening contention that the "label of national security does not give the President free reign to bypass the fourth amendment and hence probable cause" flies in the face of all relevant court holdings on the matter of foreign intelligence gathering, and specifically those cases shown in post #25.

You may not like current state of the law, but at some point you've got to come to grips with the simple truth that the courts have unanimously said you're wrong.

Good night...

"50 USC 1802 is entirely inapplicable to the present discussion because that section deals solely with surveillance of non-U.S. persons. And in this discussion we are specifically addressing those situations that include a U.S. persons."

Are you suggesting that the bar for evesdropping on U.S. persons is even lower? Yes, this is the law for foreign intelligence of both U.S persons and foreign agents, thats why they call it FISA, look up the acronym. It specifically bars warrantless wiretapping of U.S. persons.

If you know of another law that superseded this please post.

"even if §1802 did permit surveillance of U.S. persons, it does not contain, as you assert, the word "known", nor does the language you highlighted even imply such a standard."

The A.G. has to certify under oath the it is directed at communications exclusively among foreign powers, AND that there is no substantial likelihood that it will capture the communications of a U.S. person.

How can you possibly certify that under oath without knowing that your target is an agent of a foreign power? Please explain to me how you would do that.

"since the In re: Sealed Case court held that "the President did have inherent [constitutional] authority to conduct warrantless searches to obtain foreign intelligence information..."

They found that the President did have the power because he showed probable cause that the target was an agent of a foreign power. That does not apply to those only suspected.

From: Sealed Case "Sealed Case No. 02-001 " ..the court found that the government had shown probable cause to believe that the target is an agent of a foreign power.."

"the issue you raised in #37 regarding pre-FISA versus post-FISA court decisions is irrelevant, since the courts (both pre-FISA and post-FISA) based their holdings on a constitutional right of the President, and Congress is forbidden from infringing on a constitutional right."

You seem to completely ignore the constitutional right of the U.S. citizen to be free from unreasonable search and seizure, the President also is forbidden from infringing on a constitutional right, that is the reason for the warrants, and that is the reason that all the rulings you have pointed too were "agents of a foreign power" and not U.S. persons.

BTW, Congress can limit presidencial discression, even his discression on fighting war. That is not my opinion, that is Prize Cases ( THE AMY WARWICK, 67 U.S. 635 (1862) ) and that is exactly what FISA is, a congressional limitaion.

"Contrary to what you imply with your quote, Justice Douglas and Brennan's words are only a concurring opinion"

First I didn't say it was the court opinion, thats why I named the two justices.

Second, the A.G. in his defense of the eavesdropping felt Whites opinion was worth including, and I chose to include the other, so what, it is just a good summation of the topic at hand and that is how it was used.

Finally as for the quotes from #25, all but one were cases of agents of a foreign power, the one that was not (U.S. vs Brown), was pre-FISA.

And a good night (or morning as the case may be) to you too.

ndt:

In re: Sealed Case

because

probable cause

(emphasis in original)

No, that's incorrect, the court never said, nor implied any such thing. The court's conclusion was explicitly based solely on the President’s constitutional responsibility to conduct the foreign affairs of the United States.

But this claim of yours is a perfect example of the mental, logical and legal contortions you've been going through in a hopeless attempt to find some way to invent limits on the President's constitutional powers, powers which all the courts cited above have concluded belong inherently to the President.

First you invented out of whole cloth your own novel standard of evidence that an agent of a foreign power had to be "known" to be such before surveillance could be commenced. Never mind that neither the court nor the law ever articulated such a standard. And then to support your contention, you vainly attempted to place such words in the mouth of the court and the words of the law, when none existed.

When your illogic was pointed out to you that your "known" requirement far exceeded even the "probable cause" requirement for obtaining a conventional criminal search warrant, you dropped your "known" standard and began substituting the probable cause requirement, insisting that it was the "real" standard by which reasonableness should be determined.

But since virtually all courts to have ruled on the matter have held that the warrant requirement is inapplicable to the President's inherent authority, then so to is the probable cause requirement. What is left is simply a determination of whether the government's surveillance was "reasonable".

But what makes all your considerations moot and irrelevant, is that by the time any court becomes aware of such surveillance, it will only be because the case has ripened into a full-fledge intelligence or criminal case, that would not be before the court had there NOT been a reasonable cause to proceed in the first place.

This article....this question is predicated on an erroneous assumption:

WHAT IF WIRETAPPING WORKS?

What went on with regard to the monitoring of supposed Al Qaeda phone conversations was NOT WIRETAPPING.
If it was, then there would certainly have been laws broken if the Bush Administration had handled it in the same way.
But it was not wiretapping...it was the monitoring of wireless communications. Two totally different things.
It drives me mad when these Leftist commentators like Chris Matthews and Imus scream about "Bush wiretapping everybody".

It seems as if they go out of their way to educate the ignorant of this country...the Mr. and Mrs. Mundanes of the world...with totally wrong information.
Just to get as much of the electorate as possible to parrot their lies.

"No, that's incorrect, the court never said, nor implied any such thing. The court's conclusion was explicitly based solely on the President’s constitutional responsibility to conduct the foreign affairs of the United States."

Now please stop for a second and actually read the paragraph below, it is directly cut and pasted from Sealed Case at the link you provided above. If you don't believe me, click your own link and read the first paragraph of section one.

" The court’s decision from which the government appeals imposed certain requirements and limitations accompanying an order authorizing electronic surveillance of an “agent of a foreign power” as defined in FISA. There is no disagreement between the government and the FISA court as to the propriety of the electronic surveillance; the court found that the government had shown probable cause to believe that the target is an agent of a foreign power and otherwise met the basic requirements of FISA. The government’s application for a surveillance order contains detailed information to support its contention that the target, who is a United States person, is aiding, abetting, or conspiring with others in international terrorism. [approx. 1 page deleted]3 The FISA court authorized the surveillance, but imposed certain restrictions, which the government contends are neither mandated nor authorized by FISA. Particularly, the court ordered that"

You are hinging your entire argument on one sentence and ignoring the rest of the decision.

"When your illogic was pointed out to you that your "known" requirement far exceeded even the "probable cause" requirement for obtaining a conventional criminal search warrant"

That section of FISA has nothing to do with a warrant, it is the requirement for not having a warrant. You have failed to explain how the G.A. can certify under oath items AB and C are true. You have failed to do so because you can not do so and you know you can not, so you choose to ignore it just as you choose to ignore the passage above from the very court decision you are citing as your justification.

"But what makes all your considerations moot and irrelevant, is that by the time any court becomes aware of such surveillance, it will only be because the case has ripened into a full-fledge intelligence or criminal case, that would not be before the court had there NOT been a reasonable cause to proceed in the first place."

Are you now arguing that it does not matter if it is legal or not as long as it is kept secret?

ndt:

because

probable cause

ndt (quotes the court):

Show me where in that quote you provided that it states, as you claim, that the court "found that the President did have the power because he showed probable cause that the target was an agent of a foreign power".

ndt:

Obviously, because as I pointed out in #41, your reference to §1802 was an irrelevant digression from the topic under discussion, since that section specifically excludes U.S. persons from surveillance.

ndt:

I will simply note for the record, your attempt at mis-characterizing my position that the proper standard is one of reasonable suspicion.

" Obviously, because as I pointed out in #41, your reference to §1802 was an irrelevant digression from the topic under discussion, since that section specifically excludes U.S. persons from surveillance."

We both agree that the president has the authority to conduct eavesdropping without a warrant on "agents of a foreign power". Our main sticking point (in regards to FISA) is does he also have the power to conduct warrantless eavesdropping on U.S. Persons without knowledge that they are also acting as an agent of a foreign power.

According to 1802, no he does not, because a certification under oath is required that the target is in fact an agent of a foreign power, which was my point all along.

As far as FISA is concerned, the president does not have that power provided to him by statute to conduct warrantless eavesdropping on U.S. Persons that are not also agents of a foreign power.

"I will simply note for the record, your attempt at mis-characterizing my position that the proper standard is one of reasonable suspicion."

It was not a statement, it was a question, as indicated by the standard sentence structure of beginning with "Are you" and ending with a (?).

Your statment was as follows:

"But what makes all your considerations moot and irrelevant, is that by the time any court becomes aware of such surveillance, it will only be because the case has ripened into a full-fledge intelligence or criminal case, that would not be before the court had there NOT been a reasonable cause to proceed in the first place."

You clearly state that only cases that have "ripened into a full-fledge intelligence or criminal case" will be judged by "reasonable cause". This to me sounds like a justification for an administration to proceed with eavesdropping without reasonable cause, since evidence of wrong doing would never come to light.

If I am mistaken just say so, but you may want to clarify because I do not see how that statement has anything to do with saying "proper standard is one of reasonable suspicion".

Your reply neglected to show me where, in your quote of In re: Sealed Case that you posted, that it states, as you claim, that the court "found that the President did have the power because he showed probable cause that the target was an agent of a foreign power".

ndt:

Incorrect, we have no "sticking point in regards to FISA", because those specific requirements of FISA are trumped by the constitutional grant of authority to the President.

ndt:

Irrelevant digression, §1802 specifically excludes U.S. persons from surveillance, and is therefore not pertinent to the present discussion of surveillance of U.S. persons. I will not let you take me down this side path, it is not on topic.

ndt:

sounds like a justification

It is no such thing, it a simple statement of a logical truth, that when a case is reviewed after-the-fact, the initial investigation will always be viewed as reasonable simply because if wasn't reasonable, there would be no case for the court to review. Do not continue with this attempt to distort my position into a justification for illegal wiretaps.

"Your reply neglected to show me where, in your quote of In re: Sealed Case that you posted, that it states, as you claim, that the court "found that the President did have the power because he showed probable cause that the target was an agent of a foreign power".

Well maybe the conclusion was in the context of a duck. You know the president has the legal authority to conduct warrantless eavesdropping on a duck.

The fact that the government had shown the target to be an agent of a foreign power is only important if you think the stated facts of the case actually are used to determine the conclusions.

"Do not continue with this attempt to distort my position into a justification for illegal wiretaps."

Get off your high horse Boot. I did no such thing. It's all public record here.

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