Over two weeks ago, the Bush administration stunned both supporters and detractors of the National Security Agency’s Terrorist Surveillance Program — heretofore, involving warrantless eavesdropping on suspected enemy communications into and out of the United States — by announcing that the program would henceforth operate under the supervision of the FISA court.
The volte-face was bracing because, for over a year since the wartime signals-intelligence effort was first exposed by the New York Times, the administration had acknowledged that the program could not operate under the strictures of FISA — the Foreign Intelligence Surveillance Act of 1978. Now, even though FISA has not been amended (efforts to do so having petered out last year when the Republicans still controlled Congress), the Justice Department represents that it has obtained (on January 10, 2007) orders from the FISA court which permit what DOJ previously indicated could not be permitted — and with no diminution in the NSA program’s speed and agility.
The altered course has left no one satisfied. Confused defenders of the program are left wondering whether the plank has been sawn off behind them. Detractors, feeling vindicated in their claim that the program was illegal, are demanding more information — and clearly sensing that, with the administration in retreat, now may be the time for push-back on several fronts where government powers were enhanced after 9/11.
WHAT’S THE EXPLANATION?
When pressed to explain the legal rationale for its new position that FISA can accommodate the program after all, the Justice Department declined. It claimed that doing so would compromise operational details.
That seems odd. Justice, after all, previously made public a lengthy memorandum laying out the legal justification for the NSA program. The memo strongly suggested that FISA’s legislative and judicial restrictions on wartime monitoring of enemy communications by the executive branch might be unconstitutional. (For what it’s worth, I, among others, have argued that they are unconstitutional.) Implicitly, this meant the program probably could not operate within FISA’s constraints. (There were other arguments that the program was consistent with FISA’s terms, but they are not germane for present purposes.)
Furthermore, AG Gonzales publicly provided written answers to questions from the Senate Judiciary Committee’s then-Chairman, Arlen Specter. He contended that the NSA program’s capability to begin monitoring instantly once a threat emerged could not be replicated even under FISA’s emergency eavesdropping provision, which allows wiretapping to proceed for three days without court approval. Gonzales elaborated:
[T]he emergency authorization provision … does not—as many believe—allow the Government to undertake surveillance immediately. Rather, in order to authorize emergency surveillance under FISA, the Attorney General must personally “determine that … the factual basis for issuance of an order under [FISA] to approve such surveillance exists.”… FISA requires the Attorney General to determine that this condition is satisfied in advance of authorizing the surveillance to begin. The process needed to make that determination, in turn, takes precious time. By the time I am presented with the application, the information will have passed from intelligence officers at the [NSA] to NSA attorneys for vetting. Once NSA attorneys are satisfied, they will pass the information along to Department of Justice attorneys. And once these attorneys are satisfied, they will present the information to me. And this same process takes the decision away from the intelligence officers best situated to make it during an armed conflict. We can afford neither of these consequences in this armed conflict with an enemy that has already proven its ability to strike within the United States. [Emphasis in original.]
This has always been a fair point. Forbidding eavesdropping until the Attorney General of the United States could be tracked down and briefed every time a new operative is identified would be absurd. It is worth noting, however, that FISA’s emergency provision (Section 1805(f) of Title 50, U.S. Code) requires approval only from the attorney general. FISA does not call for the other delaying rungs of approval (NSA attorneys, DOJ attorneys, etc.) described by Gonzales. Those rungs have been put in place by the Justice Department, and could be streamlined without modifying FISA.
In any event, though, FISA has not been amended since the attorney general made the statements excerpted above. FISA’s mandate of pre-monitoring approval is still in effect. Were that mandate to be honored, it would still seem that we’d miss crucial communications while bureaucrats scrambled to get their ducks in a row. It is thus difficult to understand how the NSA program can incorporate FISA’s mandate and still carry on with no fall-off in speed and effectiveness. If it can, it is equally difficult to understand why we needed to have the NSA program, and all the fuss it has stirred, in the first place.
And it is even harder to grasp why merely disclosing Justice’s new legal theory about the necessary pre-conditions for commencement of surveillance would help the enemy. Up until now, the Department has had no hesitation about such disclosures: Under FISA, monitoring could begin only after the required approvals were obtained if there was probable cause that the target was an agent of a foreign power, and it could continue for 72 hours, or longer with court approval; under the NSA program, monitoring could begin immediately once a Defense Department intelligence officer determined there were “reasonable grounds to believe” the target was an agent of al Qaeda or one of its affiliates, and it could continue indefinitely — as long as the president continued to approve the program and no new evidence undermined the original “reasonable grounds.” To be sure, there is much here to argue about (and we have done plenty of that). But none of these legal protocols betrays any information about exactly who is being monitored and what specific facts trigger “probable cause” or “reasonable grounds.”
In any event, if the administration believed giving in to critics who wanted FISA court supervision would usher in a new era of bipartisan cooperation, it was sadly mistaken. Although the new policy was announced on the eve of Gonzales’s scheduled appearance before the newly-Democrat-controlled Senate Judiciary Committee, the attorney general was still aggressively grilled. Not only Democrats (like the committee’s new chairman, Sen. Patrick Leahy) but some Republicans (like Sen. Specter) wanted more information about the new process. Was the Justice Department going to the FISA court on a case-by-case basis? Or had it succeeded in persuading a FISA judge to give it broad “programmatic” approval that would somehow overcome the slow-down inherent in FISA’s pre-monitoring approval requirements?
Gonzales refused to get into such details. Then, however, there was a new wrinkle. Chairman Leahy decided to go around the attorney general and seek disclosure of the new orders directly from the FISA court, through its chief judge, Colleen Kollar-Kotelly. She happens to be a Clinton appointee who, the Washington Post reported last year, was “infuriated” when she first learned of the NSA program and “expressed serious doubts about whether the warrantless monitoring of phone calls and e-mails … was legal.” Upon receiving Leahy’s request, Judge Kollar-Kotelly quickly fired off a letter agreeing to disclose the classified orders to the Committee, provided that “the executive and legislative branches reach agreement for access to this material.”
This threw Justice for a loop. Given the FISA court’s apparent unconcern, the attorney general’s stated fears about edifying the enemy seemed overblown. Still, DOJ continued to resist revealing its new theory despite withering pressure from Congress — pressure which was intensified when the House Intelligence Committee (now also under Democrat control) got into the act. Its new chairman, Rep. Silvestre Reyes, joined others on the committee in threatening to subpoena documents related to the program.
Now, though, the Justice Department has relented. Members of the House and Senate Intelligence Committees and some select additional members of Congress (presumably including the senior members of the Senate Judiciary Committee who have led the charge) will, as the New York Times reported on Thursday, be allowed to “review those court orders to determine whether the administration had significantly changed the program by putting it under the authority of the Foreign Intelligence Surveillance Court.”
It will be interesting, to say the least, to see what comes out of this review. We can expect much more on whether the administration’s decision to place the program under FISA court supervision is really a victory that gives the effort the judicial imprimatur craved by critics (which is how the Justice Department has been portraying the move), whether it is a cave-in that necessarily reduces the effort’s effectiveness (which is what program supporters fear), or whether FISA could have been used all along (in which case we have spent fourteen months fighting over an empty bag).
For my money, I think we ought to cut the Justice Department some slack. I imagine DOJ has made use of a well-established tool: the “anticipatory search warrant.”
There are times when what the government is able to tell a court does not yet amount to probable cause but would if certain contingencies occurred. For example, let’s say an informant with no track record of reliability tells the government that A will leave his home to deliver drugs to B at 10 P.M. There is not yet probable cause that A actually has drugs in his home. If, however, if the A-B meeting actually happens as foretold at 10 P.M., there would be a much stronger basis to think A’s home was a drug stash. In such a situation, the government will often get an anticipatory warrant to search A’s home; the judge basically says: you have permission to search if the 10 p.m. meeting happens — you don’t need to come back to me for permission; but, if the 10 p.m. meeting doesn’t happen, there is no warrant and the search is impermissible.
I suspect the Justice Department may have figured out an anticipatory warrant procedure for FISA. That is, it may have explained to the FISA court that the attorney general has granted approval for the NSA to monitor communications under FISA’s emergency authority if certain conditions occur (which conditions, in the attorney general’s calculus, would amount to probable cause that the target it an agent of al Qaeda).
I suspect the Justice Department has probably enumerated those conditions for purposes of (a) satisfying the FISA court that monitoring would not occur absent defined criteria being met and (b) guiding the NSA about who may be monitored. Nevertheless, publicly describing those conditions would effectively tell al Qaeda how to avoid FISA — i.e., would compromise operation details. Thus, the Justice Department’s refusal to talk about its new legal theory owes to its reluctance to reveal the conditions precedent to NSA surveillance.
Sure, there may be some embarrassment about the fact that this new procedure, consistent with FISA, could have been figured out long ago — which would have obviated the need to fight over the NSA program. If I am right, though, the main national security concern would be the need to avoid publicly revealing — and thus telling al Qaeda — what precise activities will trigger surveillance. That, I surmise, is why Justice has properly fought to keep its procedure confidential.
MEANWHILE, BACK IN THE COURTS
In the interim, if the administration hoped its embrace of FISA would moot sundry court challenges to the Terrorist Surveillance Program, those hopes, too, are unlikely. Wednesday in Cincinnati, the Sixth Circuit U.S. Court of Appeals heard arguments in the government’s effort to overturn last year’s decision, by a federal judge in Detroit, holding the program unconstitutional. (FDD’s Center for Law & Counterterrorism, which I direct, has filed an amicus brief in the case in support of the government’s position.) Though the government argued mootness, Deputy Solicitor General Gregory G. Garre also made clear that the Justice Department still believes the Constitution authorizes the president to order warrantless wiretapping. Obviously, this means President Bush (or a future president) could opt out of FISA supervision at any point, and thus that the controversy could recur.
Regardless of the mootness question, the government should prevail anyway. The administration’s defense of presidential power to penetrate enemy communications in wartime remains sound (although, as I have previously conceded, whether that claim would win support from five justices on the current Supreme Court is questionable). The federal courts, however, should never reach that issue.
The private parties challenging the program (mainly civil-liberties activists, and lawyers and journalists who want to represent or communicate with potential terror suspects) do not have standing to sue. They have not been concretely injured by the program in a way that materially distinguishes them from the rest of us.
Even if they had been, moreover, the government has properly asserted the state secrets privilege. This privilege, reaffirmed by the Supreme Court only two years ago in Tenet v. Doe (2005), holds that litigation must be aborted if it could result in the disclosure of information vital to national security. That plainly is the case with the NSA program, and the courts (including the one in Detroit) which have attempted to navigate around the privilege have been wrong to do so.
They have reasoned that the cat is already out of the bag since the administration has admitted that the program exists. The question, though, is not whether the fact of the program and its incompatibility with FISA are now public; it’s whether fully litigating the program would reveal details the disclosure of which would help our enemies. Surely, confirming for al Qaeda who is monitored and why would be terribly damaging. Further, the constitutional official responsible for protecting the United States from foreign attack is the president; as the Supreme Court has acknowledged, it is not for the courts to second-guess executive judgments in this area — they are political decisions, not legal ones.
So the FISA follies continue. Surveillance of the enemy is now conducted differently, but our battles over the old rules are far from over, and controversy over the new rules has only just begun.
– Andrew C. McCarthy directs the Center for Law & Counterterrorism at the Foundation for Defense of Democracies.