Delayed Reaction to NSA Wiretapping

by Charles

After absorbing over a week of news regarding the warrantless surveillance by the NSA, I thought I'd write this down to keep it all straight.  Calls for impeachment are serious business, not to be taken lightly or quickly or without good reason, and several of those calls have been made.  From what I've seen so far, the person who has written the most clearly on the NSA surveillance matter has been Orrin Kerr, along with a few others such as Cass Sunstein (more from Sunstein here).  Going through the list of fundamental questions:

Did it violate the Fourth Amendment?
Probably not, since the surveillances involved international calls and e-mails, and there is a plausible argument that border search exceptions exist.  There is also case law which opens the door to exceptions on the grounds of national security.  Kerr links to the relevant court cases and he comes across as reasonable.  In a follow-up post, Kerr raises the issue of the special needs exception.

At this point, there is much we don't know about who was being surveiled, their citizenship, where they were and the nature of the communications but, to me, it is unsettling that this course of action was taken.  The administration made the excuse that they didn't want to codify the surveillance into law because Congress wouldn't approve it anyway.  The excuse is lame, but it doesn't look like it violates the Fourth Amendment.

We also don't know where the surveillance was taking place.  Jeff Goldstein:

The point being, that we don’t know enough about the program itself to state with any kind of certainty that FISA law (or fourth amendment protections, for that matter) has been violated, and from what we do know from official statements is that the collection of information is happening outside of the US ["when the surveillance occurs outside of the United States, FISA is not applicable, and there is no requirement of prior judicial authorization. In these cases, Executive Order 12,333 is the primary source of regulation”—Duke Law Journal, in an analysis of the Echelon program; much more here.]

However, the idea that collecting information outside the United States yet still involving a United States person on U.S. soil is unnerving.

Did it violate FISA?
Probably so.  The language is fairly direct about who United States persons are, what electronic surveillance is, and the requirements for warrants before surveiling them.  What's more, while al Qaeda can be classified as a foreign power under 50 USC 1801(a), they are specifically excluded from domestic surveillance sans warrants because 1802(a)(1) covers only three of the six kinds of foreign powers, and international terrorist organizations aren't in that top three.  If the law is to be changed, adding one or more of these kinds of foreign powers to the list would be a start. 

But even if al Qaeda were included as a foreign power as defined in 1801(a)(4) or (a)(5) and if communications among its agents, defined under (b)(2), are targeted for scrutiny, the administration still has to deal with the definition of electronic surveillance in 1801(f) and major restrictions to the exception language in 1802(a)(1)(B):  "there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a part can be monitored without warrants."  As I see it, a United States person could very well be a traitor, but a warrant to monitor him or her is still required under the law.

But there is a huge "however", since the FISA Court of Review has addressed the issue and allowed the surveillance under the auspices of the Authorization to Use Military Force.  Former associate attorney general John Schmidt in the Chicago Tribune:

In the most recent judicial statement on the issue, the Foreign Intelligence Surveillance Court of Review, composed of three federal appellate court judges, said in 2002 that "All the ... courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence ... We take for granted that the president does have that authority."

If impeachment should occur, then it should extend to two branches of government or not at all.

Was it allowed under the Authorization to Use Military Force?
Probably not, according to Kerr, but I'm leaning toward "probably so".  50 USC 1809 states that a person is guilty of FISA "except as authorized by statute", with the statute being the AUMF:

"That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

There is some squishiness to it, depending on whether communications among al Qaeda agents and the surveiling of them is "so fundamental and accepted an incident to war".  Orrin Kerr sided against.  I think his first two reasons are debatable but the third reason (the Patriot Act was passed a month after the AUMF and it did not extend that authority to the president) is his best one.  To me, this area looks fairly gray, particularly since signals intelligence is a part of war and could fall under the interpretation of "all necessary and appropriate force".

Does Article II of the Constitution give the president the authority?
Kerr is not convinced since most of the administration's arguments tended toward a relaxed Fourth Amendment, and not directly addressing whether Article II made certain Congressional requirements inoperative.  I'll side with Kerr on this one, mostly because I'm not well versed in this area.  The argument that a president can violate an existing law because he has the inherent authority to do so (in his own judgment) is worrisome to say the least.

But the biggest question is: 

Was it an impeachable offense?
Opinions will vary.  To me so far, the answer is no because this is a not black-and-white case and there is much that we do not know.  Also, violating FISA may not have been a crime, and the standard for impeachment is that a high crime or misdemeanor was committed.  I don't believe this was a high crime because the surveillance actions were taken after consultations with the Justice Department, the procedures were time-limited and circumscribed, they were taken to FISA Courts of Review, and members of Congress were notified.  In other words, but for the surveillance of United States persons without warrants (yes, they are big buts and I don't like big buts*) FISA was followed.  Another ameliorating factor is that the communications were restricted to international calls and e-mails involving known al Qaeda suspects [Update:  At least, that's what the administration is telling us].  If the administration were intentionally trying to hide this surveillance by bypassing the Justice Department, the FISA Court of Review or Congress, then that would be another story.

* big butts on the other hand...

Comments

[Gary Farber]

"Perhaps I am a bit more skeptical than you."

Of what?

"...Maybe forcing terrorists to use encryption creates a traffic pattern that can help detect them...."

It's conceivable.

"It just seems like a lot of effort and a big sacrifice of principles for an unlikely return to me."

It certainly could be. I'm certainly utterly unwilling to surrender the principles without, just for starters, clear information on precisely what we're surrendering (and, yes, trying to maintain reasonable security, not just political "security" does make that difficult; but it shouldn't be impossible; the whole line about how "the terrorists" would now know that the U.S. government is trying to listen to them and spy on them, because of this leak, is one of the many of the more insanely ludicrous lines this Admin has ever put out, although "the AUMF authorized the President to do anything he wants, ever," is another recent contender).

[cleek]

Saying it's a boring subject of interest only to only DBAs and statisticians is, I'm trying very hard to do more than suggest, is very unuseful.

good thing i didn't say that, then.

liek it or not, i think "wiretap" is still a good word for what's going on. yes, it's wholesale and yes there is a new layer of automation between your call and the guys in fedoras, but when you get right down to it, it's still the government listening to your calls, without your knowledge or permission. the fact that a DSP is listening to your call, and not an actual person is a marvel of technology, and not a safeguard of privacy; that DSP is simply an inexpensive stand-in for a room full of patient people with headphones.

they're still listening to us without warrants.

The government must obey the law or there will be Obsidian hell to pay.

oh yeah? who's gonna enforce that "law" ? certainly not the government, which is perfectly happy to find justification for all kinds of things reasonable people would have never thought possible, four years ago.

so, be careful, next time you're talking to your friend overseas - you never know when you'll trip some NSA keyword-detector and earn yourself a one way ticket to indefinite detention in sunny Cuba, or maybe an extraordinary rendition. or maybe you can show me the laws that prove that'll never happen to you.

[ral]

Gary: ... [skeptical] of what?

Of whether the furshlugginer thing even does any good.

I agree with you about the threat to our liberties, of course.

[Gary Farber]

"...but when you get right down to it, it's still the government listening to your calls, without your knowledge or permission...."

Before I completely give up, may I ask then, does data-mining absent eavesdropping on phone calls strike you as unimportant, then?

And does eavesdropping on potentially every citizen of the United States, and maintaining massive files on everyone, with every credit purchase you've ever made, and every other bit of data available on your life, strike you as less important than wiretapping a few thousand specific phones?

I don't understand how or why anyone would minimize this, unless their goal was to defend the Administration, which is presumably not your goal.

I don't it's accurate to describe an apple as a seed, or a telephone as a telegraph, or datamining as "wiretapping," but we all see things and understand them our own way.

[Gary Farber]

"Of whether the furshlugginer thing even does any good."

Did I say a word about what good or not it does or may do? (Not that there's anything wrong with speculating about what I might think, to be sure.)

[Duane]

ok, everyone. without looking it up, what are the five leading causes of preventable death in the US?

1) Heart attack
2) Cancer
3) Car accidents
4) Stroke
5) Flu

...goes and looks up answers...

Not bad at all, if I do say so myself.

[cleek]

...does data-mining absent eavesdropping on phone calls strike you as unimportant, then?

datamining absent eavesdropping is statistics. it's very important, and arcane.

I don't understand how or why anyone would minimize this...

nor do i.

[Anarch]

ok, everyone. without looking it up, what are the five leading causes of preventable death in the US?

I think a better question is, what counts as preventable?

[Gary Farber]

"...datamining absent eavesdropping is statistics."

So you've always been fine with the FBI keeping files on folks, so long as there was no wire-tapping, I take it?

The government can spy on you all it likes, so long as it's done via master switches, and parabolic mikess, and lasers bouncing off your windows, and portable bugs, and videotaping you, and not a guy in your basement. Because, newsflash, none of that is wiretapping.

I do now give up. Minimize the threat of datamining amd wholistic surveillance all you like (and presumably corporate datamining is also something to be copacetic about, and, of course the threat will remain static as of... whatever baseline you use).

We'll see what you think by December, 2006, let alone December, 2016, of what you've been saying here about how boring and unimportant this threat is.

[KCinDC]

Gary, the word in the quote you're responding to is "eavesdropping". Do you think that people don't consider things "done via master switches, and parabolic mikess, and lasers bouncing off your windows, and portable bugs, and videotaping you" to be eavesdropping?

[john miller]

gary, I don't think that cleek was minimizing what this is all about.

I remember when bar codes and special discount cards became available at grocery stores. There was a big uproar about how our shopping habits were going to be public records.

Well, it turns out that the Republicans have been using that data to determine voting patterns. I don't think there is anything really wrong with that, but the point is that this kind of data-mining can be used for all sorts of things, and not necessarily for the benefit of mankind.

Once "statistics" are gathered, tracing back to specific sources is probably not that difficult.

My brother and I are in frequent e-mail communication with a lot of not very flattering discussion of the current information.

A little over a month ago he visited China. Does that combination make him a potential target, and by association am I?

The potential for this to turn into something far worse than Orwell ever imagined is there.

I can understand the supposed security advantages, but then I also understand the healthcare advantages of never being in public. The cost of both may be too high.

[Gary Farber]

"Gary, the word in the quote you're responding to is 'eavesdropping'.

Try the fuller context, please.

Did cleek's "liek it or not, i think 'wiretap' is still a good word for what's going on" contain ambiguity I missed?

Note that "wiretapping" is what people keep saying in these threads here (and all over the internets)-- just do a "find" on this thread, and start counting, before you give up out of boredom. Note what I've consistently been saying regarding "wiretapping" and "datamining."

If other people equate "wiretapping," and "eavesdropping," or switch terms mid-argument, well, again this is part of the confusion of terms and understanding I've been ranting about. But, again, the datamining threat is far larger than just eavesdropping, no matter that, of course, eavesdropping is a far larger threat than wiretapping.

This is precisely why I hate sloppy writing; it only causes confusion and misunderstanding.

I'm guilty of sloppy writing in almost every comment, of course. Surely I need not draw the syllogism.

[cleek]

So you've always been fine with the FBI keeping files on folks, so long as there was no wire-tapping, I take it?

huh ?

We'll see what you think by December, 2006, let alone December, 2016, of what you've been saying here about how boring and unimportant this threat is.

are you quoting me while responding to someone else ?