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.

"Since I am a US citizen , should the US protect my right to a fair and speedy trial "

Got a story you want to share :)

No, when in a foreign country you are bound by the laws of that country. The U.S. government is not providing your trial, the Mexican government is and they have their own laws and protections. If for example, the Mexican government chose to allow your prosecution in the U.S. then yes, you would have those protections provided by the U.S. government.

"By the same logic should I have the same expectations of privacy from any communication to a foreign country?"

The Constitution is in effect in all dealings between the U.S. and it's citizens where ever they are.

ndt: "If the U.S. person is talking to a known terrorist abroad, that would be sufficient evidence to get a FISA warrant."

"However, because of the President's constitutional duty to act for the United States in the field of foreign relations, and his inherent power to protect national security in the context of foreign affairs, we reaffirm what we held in United States v. Clay, supra, that the President may constitutionally authorize warrantless wiretaps for the purpose of gathering foreign intelligence."

--United States v. Brown, 484 F.2d 418, 426 (1973)

"We agree with the district court that the Executive Branch need not always obtain a warrant for foreign intelligence surveillance."

--U.S. v. Truong Dinh Hung, 629 F.2d 908, 913 (1980)

"Prior to the enactment of FISA, virtually every court that had addressed the issue had concluded that the President had the inherent power to conduct warrantless electronic surveillance to collect foreign intelligence information, and that such surveillances constituted an exception to the warrant requirement of the Fourth Amendment."

--United States v. Duggan, 743 F.2d 59 (1984)

"The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent [constitutional] authority to conduct warrantless searches to obtain foreign intelligence information."

--In re Sealed Case, 310, F3d. 717, 742 (2002)

2 points for good HTML sills and 2 points for creative quotes mining.

"We agree with the district court that the Executive Branch need not always obtain a warrant for foreign intelligence surveillance."

You left out what followed not one paragraph later..

"Balancing individual privacy and government needs, the Supreme Court concluded that the executive must seek a warrant before it undertakes domestic security surveillance.

"...the President did have inherent [constitutional] authority to conduct warrantless searches to obtain foreign intelligence information"

It goes on to say ...

"The question before us is the reverse, does FISA amplify the President’s power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government’s contention that FISA searches are constitutionally reasonable."

In other words, the president is still bound by the reasonableness clause. If the president were to conduct suvailance without a warrant he could be found to have violated the constitutional rights of the person spied upon. Note, "reasonable" does not refer to level of national threat, but to evidence of wrong doing. No evidence of wrong doing, no spying allowed.

"...the President may constitutionally authorize warrantless wiretaps for the purpose of gathering foreign intelligence."

Foreign intelligence yes, but if you bothered to read the sentence before that one you would see this.

"...in the area of domestic security, the President may not authorize electronic surveillance without some form of prior judicial approval."

ndt:

domestic

Domestic intelligence surveillance is irrelevant to the current debate over the President conducting warrantless intercepts of foreign intelligence communications. Do you understand the difference?

ndt:

Incorrect, as the holdings in the four appellate cases cited in #25 plainly show, the President has the inherent constitutional authority to conduct warrantless searches to obtain foreign intelligence information.

ndt:

domestic

Domestic intelligence surveillance is irrelevant to the current debate over the President conducting warrantless intercepts of foreign intelligence communications. Do you understand the difference?

ndt:

Demonstrably incorrect.

The difference between "domestic" and "foreign" national security intercepts has nothing to do with the point of origin, destination or intercpetion of the communication. Nor does it depend on whether either party is a U.S. citizen or resident. The difference between "foreign" and "domestic" national security intercepts, as the term is used by the courts and intelligence agencies, is the source of the threat, i.e., whether at least one party to the communication was acting as an agent of a foreign power.

That distinction was never made more clear than it was in the Truong case. Truong, a U.S. resident alien, and Humphrey, a U.S. citizen and an employee of the USIA, conspired to commit espionage by delivering confidential government documents to the communist government of Vietnam from 1976 to 1977. In this case, the court held that the intercepts did not require a warrant since both defendants were acting as agents of a foreign power and thus the intercepts were a legitimate exercise of foreign national security intelligence gathering.

Note that in Truong, both the origin and destination of the intercepted calls were within the United States. Note also, that both defendants were U.S. residents, and in Humphrey's case, a U.S. citizen, as well. Yet the court held that these were foreign national security intercepts.

Thus, your contention that in the present case of the national security wiretaps revealed by James Risen in the NYT, that they are "domestic" wiretaps is demonstrably untrue, they are "foreign" national security wiretaps.

"the difference between "domestic" and "foreign" national security intercepts has nothing to do with the point of origin"

I never said that it did, on the contrary, I stated that it had to do with status as either an U.S. Person or as an Agent of a Foreign Power, which it does.

" Nor does it depend on whether either party is a U.S. citizen or resident"

That is incorrect in so far as a U.S. citizen or legal resident is presumed to be U.S. Person unless domonstratably otherwise by acting as an Agent of a Foreign Power.

In the case of Truong, he enlisted a (unknown to him) CIA informant to carry classified data to the North Vietnamese government, thereby establishing himself as a "agent of a forign power". It was after this that the warrantless intelligence activities took place.

OK, I'm sick of typing U.S. Person, from now on it is USP

NOTE: All quotes below are from the Truong case

Taps on the phones of known international terrorists do not require a warrant, that is not at issue. When those taps intercept a third party, and if that third party turns out to be a USP, yes, a warrant becomes required for that conversation. It can be issued retroactively, and if that U.S. person is calling a known international terrorist, I can think of no reason why the FISA court would turn down that warrant.

The Truong case does not allow the president or his agents to conduct warrantless eavesdropping on USPs without reasonable evidence that they are acting as agents of a foreign power.

" Even if a warrant is not required, the Fourth Amendment requires that the surveillance be "reasonable."

A USPs name being in the phone book of a terrorist may be reasonable evidence of possible wrongdoing, or he might be the pizza guy. What it is not, is proof of being an agent of a foreign power. That would be a case that required a warrant, even for the president.

So, does the president have inherent power to conduct warrantless eavesdropping even when the subject is a USP and is not previously known to be an agent of a foreign power? Lets see what the Truong court had to say.

"Because the Fourth Amendment warrant requirement is a critical constitutional protection of individual privacy, this discussion should conclude by underscoring the limited nature of this foreign intelligence exception to the warrant requirement which we recognize in the instant case. The exception applies only to foreign powers, their agents, and their collaborators."

Yes, I guess I do agree with them. NO! the president does not have the power to conduct warrantless eavesdropping unless the target is already known to be an agent of a foreign power.

ndt:

Let me make some minor adjustments to that...

"~~Taps on the phones~~intercepts of communications of known or suspected international terrorists do not require a warrant, that is not at issue."

ndt:

That is incorrect, as the holding in Truong makes abundantly clear. They specifically held that no such warrant was required. You're entitled to your own opinion, but not your own facts.

ndt:

FISA courts don't issue warrants. Nor do FISA courts even use the "probable cause" standard required for warrants.

ndt:

without reasonable evidence

The Truong court never held any such a thing. The governments actions were done without any court permission, oversight or approval and were held by the court to be completely constitutional after the fact and after the trial.

ndt quotes Truong:

Yes, and then the Truong court ruled on the reasonableness, saying: "As the district court observed, the surveillance was nonetheless reasonable, and we agree." Notice, the court found it reasonable long after the fact and long after the trial and merely gave their stamp of approval to what the government had already done.

ndt:

proof

When it comes to initiating foreign intelligence intercepts, "proof" is not the standard, nor is it "probable cause", all that the President needs is a reasonable suspicion that at least one individual that is party to a communication, is acting as an agent of a foreign power.

ndt:

Sorry, all the leading cases and four courts of appeal disagree with you and state emphatically, and without the limitation you dreamt up, that the President has the inherent constitutional authority to conduct warrantless searches to obtain foreign intelligence information.

If you think you can find a case cite that agrees with your position, post it.

Yours are in italic, the Truong court is in bold italic

" That is incorrect, as the holding in Truong makes abundantly clear. They specifically held that no such warrant was required. You're entitled to your own opinion, but not your own facts."

Have you even read the case?

"First, the government should be relieved of seeking a warrant only when the object of the search or the surveillance is a foreign power, its agent or collaborators."

Not "suspected" not "probable", known.

" FISA courts don't issue warrants. Nor do FISA courts even use the "probable cause" standard required for warrants."

So which is it, they don't issue warrants or they use a different standard?

Are we even using the same acronym? You can read up on what they do here.

" The Truong court never held any such a thing. "

And I quote Q.U.O.T.E. from the TRUONG COURT

" Even if a warrant is not required, the Fourth Amendment requires that the surveillance be "reasonable.""

"First, the government should be relieved of seeking a warrant only when the object of the search or the surveillance is a foreign power, its agent or collaborators."

"Notice, the court found it reasonable long after the fact and long after the trial and merely gave their stamp of approval to what the government had already done."

It was reasonable because Truong had indited himself by working with a CIA informant, his status as a foreign agent was established BEFORE the eavesdropping.

"all that the President needs is a reasonable suspicion that at least one individual that is party to a communication, is acting as an agent of a foreign power."

Is that opinion or are you having trouble finding the quote for that one.

"Sorry, all the leading cases and four courts of appeal disagree with you and state emphatically, and without the limitation you dreamt up, that the President has the inherent constitutional authority to conduct warrantless searches to obtain foreign intelligence information."

Dremt up? I was quoting from the Truong case. They state emphatically? You mean like this.

"First, the government should be relieved of seeking a warrant only when the object of the search or the surveillance is a foreign power, its agent or collaborators."

or like this

"We thus reject the government's assertion that, if surveillance is to any degree directed at gathering foreign intelligence, the executive may ignore the warrant requirement of the Fourth Amendment."

or maybe like this

"..we .. are convinced that the Fourth Amendment will not permit us to grant the executive branch more."

ndt:

Sorry, you're simply incorrect, neither the Truong court nor any other court to have ruled on the matter has ever once uses the word "known" as a requirement for subjects of surveillance as agents of a foreign power.

ndt:

Both.

ndt:

Yes, dreamt up, since none of those quotes you provided show the court requiring the subject be a "known" agent of a foreign power. They use no such word or language in limiting the scope of the President's authority.

Nor would it be logical to expect any court to impose such a standard of "known", since when the government initiates an investigation, by definition, the word "investigation" admits to much being unknown about a case.

"Nor would it be logical to expect any court to impose such a standard of "known", since when the government initiates an investigation, by definition, the word "investigation" admits to much being unknown about a case."

FISA is quite clear in the requirements for warrantless eavesdropping .

"Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that—"

the electronic surveillance is solely directed at—
1. the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title; or
2. the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801 (a)(1), (2), or (3) of this title;
there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and
the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 1801 (h) of this title; and

Note that it is A, B and C, not either or. If they can't meet this requirement then they need a warrant (or if you prefer, a court order)

The whole point is that they are allowed to do so without a warrant if the targets are known agents of a foreign power, if there is any question, then they need a warrant. The A.G. has to certify under oath that they are in fact agents of a foreign power. There is no room for "might be", "we think they are".

"Yes, dreamt up, since none of those quotes you provided show the court requiring the subject be a "known" agent of a foreign power. They use no such word or language in limiting the scope of the President's authority."

There is good reason why the presidentially applied label of "national security" does not give the President free reign to bypass the fourth amendment and hence probable cause. Well summed up by Supreme Court Justices Douglas and Brennan in Katz vs. United States.

"Neither the President nor the Attorney General is a magistrate. In matters where they believe national security may be involved they are not detached, disinterested, and neutral as a court or magistrate must be. Under the separation of powers created by the Constitution, the Executive Branch is not supposed to be neutral and disinterested. Rather it should vigorously investigate and prevent breaches of national security and prosecute those who violate the pertinent federal laws. The President and Attorney General are properly interested parties, cast in the role of adversary, in national security cases. They may even be the intended victims of subversive action. Since spies and saboteurs are as entitled to the protection of the Fourth Amendment as suspected gamblers like petitioner, I cannot agree that where spies and saboteurs are involved adequate protection of Fourth Amendment rights is assured when the President and Attorney General assume both the position of adversary-and-prosecutor and disinterested, neutral magistrate."

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