Thursday, June 20, 2013

The legal scholar and the FISA court: ignorance is bliss

President Obama, speaking to Charlie Rose (on The Charlie Rose Show) this past Monday night:
It is transparent. That's why we set up the FISA court. Look, the whole point of my concern, before I was president — because some people say, 'Well, you know, Obama was this raving liberal before. Now he's, you know, Dick Cheney.' Dick Cheney sometimes says, 'Yeah, you know? He took it all lock, stock, and barrel.'  
My concern has always been not that we shouldn’t do intelligence gathering to prevent terrorism, but rather are we setting up a system of checks and balances? So, on this telephone program, you’ve got a federal court with independent federal judges overseeing the entire program. And you’ve got Congress overseeing the program, not just the intelligence committee and not just the judiciary committee -- but all of Congress had available to it before the last reauthorization exactly how this program works.
Forgetting the pathetically petty and un-Presidential swipe at Dick Cheney (wherein Cheney is supposedly--by context--some sort of authoritarian monster), Obama's words suggest he doesn't have a clue how the FISA court works, why it exists, or much less when it was established.

During the Bush presidency, the FISA court was a frequent target for complaints from liberal, progressive, and libertarian alike. It's existence was taken as absolute evidence for the lack of transparency, when it came to surveillance of the citizenry. Because, of course, that seemed to be the entire point of establishing the court!

Obama's words--"WE set up the FISA court"--suggest it's a relatively new thing, that he had a hand in establishing it. Many of its critics believe it to be a product of the Bush Administration. Neither is the case. The Foreign Intelligence Surveillance Act was passed by Congress and signed into law by President Jimmy Carter in 1978. And in that Act, the court was created. Yes, the FISA court has been around for 35 years. By the way, the initial legislation was introduced by the "liberal lion" himself, Ted Kennedy, but I digress.

The reasons for the act were simple: Nixon and Vietnam. People had become concerned--by the mid-70's--that government agencies were crossing too many lines, had basically unchecked power, and that they could and would use this power against American citizens for political reasons. The Church Committee's reports in the mid-70's documented not only potential ways such power could be abused but also specific cases of it being abused, including a CIA program that secretly took and opened the mail of U.S. citizens, then resealed it and put it back into postal circulation! Thus in theory, the FISA court supposedly exists as a check against the powers of the mostly-executive-branch government agencies.

In theory.

Because over time, what the FISA court became was a means of legalizing behavior that should rightly be illegal. But let's not get involved in dredging up the past in this regard, let's deal with what is before us now: the metadata collection undertaken by the NSA, involving phone and internet search records of U.S. citizens.

FISA--the Act itself, not the court--was passed because government officials rightly recognized that circumstances could arise wherein critical intelligence could only be had using routes outside those available to traditional law enforcement agencies (i.e., we have spies because we need spies). In the U.S. code, FISA rules are found under Title 50, Chapter 36 (50 USC Chapter 36), entitled "Foreign Intelligence Surveillance." The title is very clear: these rules are about surveillance work directed at foreign interests and their agents. In 50 USC § 1802, very specific requirements are given for warrantless surveillance. Let's take a look:
(1) 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—
(A) the electronic surveillance is solely directed at—
(i) 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
(ii) 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;
(B) 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
(C) the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 1801 (h) of this title;
This is very, very clear (an odd thing for U.S. code, to be sure). Warrantless surveillance under FISA is limited to communications involving exclusively foreign nationals. Any communications that involve U.S. citizens--or that appear likely to do so--are strictly off-limits for warrantless surveillance. The one item that is less than clear is the last: "minimization procedures." But we'll get back to this, shortly.

So, the NSA--in the current brouhaha--necessarily needed a warrant to collect all of the data it collected. And it got that warrant--a secret and sealed one, not unlike the one used to investigate James Rosen--from the FISA court. The requirements for a warrant to do what the NSA did, as outlined in 50 USC § 1804 (my boldface):
Each application for an order approving electronic surveillance under this subchapter shall be made by a Federal officer in writing upon oath or affirmation to a judge having jurisdiction under section 1803 of this title. Each application shall require the approval of the Attorney General based upon his finding that it satisfies the criteria and requirements of such application as set forth in this subchapter. It shall include—
(1) the identity of the Federal officer making the application;
(2) the identity, if known, or a description of the specific target of the electronic surveillance;
(3) a statement of the facts and circumstances relied upon by the applicant to justify his belief that
(A) the target of the electronic surveillance is a foreign power or an agent of a foreign power; and
(B) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power;
(4) a statement of the proposed minimization procedures;
(5) a description of the nature of the information sought and the type of communications or activities to be subjected to the surveillance;
(6) a certification or certifications by the Assistant to the President for National Security Affairs, an executive branch official or officials designated by the President from among those executive officers employed in the area of national security or defense and appointed by the President with the advice and consent of the Senate, or the Deputy Director of the Federal Bureau of Investigation, if designated by the President as a certifying official—
(A) that the certifying official deems the information sought to be foreign intelligence information;
(B) that a significant purpose of the surveillance is to obtain foreign intelligence information;
(C) that such information cannot reasonably be obtained by normal investigative techniques;
(D) that designates the type of foreign intelligence information being sought according to the categories described in section 1801 (e) of this title; and
(E) including a statement of the basis for the certification that—
(i) the information sought is the type of foreign intelligence information designated; and
(ii) such information cannot reasonably be obtained by normal investigative techniques;
(7) a summary statement of the means by which the surveillance will be effected and a statement whether physical entry is required to effect the surveillance;
(8) a statement of the facts concerning all previous applications that have been made to any judge under this subchapter involving any of the persons, facilities, or places specified in the application, and the action taken on each previous application; and
(9) a statement of the period of time for which the electronic surveillance is required to be maintained, and if the nature of the intelligence gathering is such that the approval of the use of electronic surveillance under this subchapter should not automatically terminate when the described type of information has first been obtained, a description of facts supporting the belief that additional information of the same type will be obtained thereafter.
Despite the length of the above, the requirements really aren't that extensive nor difficult to understand. And what the bold-faced portions make clear is that these FISA court warrants are supposed to have a clear target that IS NOT AN AMERICAN CITIZEN. Moreover, the information is supposed to be information that could not otherwise be gleaned. Both of these requirements would seem to disqualify the NSA request. But never fear, via legal hair-splitting, the NSA--under the authority of the President--apparently convinced the FISA court to allow the program. Amazing, isn't it?

Still, the requirement for "minimization procedures" has once again come up (section (4)), so let's get a handle on what this means. 50 USC § 1801 provides all of the definitions for the terminology uses in Title 50. For "minimization procedures," it says the following:
(h) “Minimization procedures”, with respect to electronic surveillance, means—
(1) specific procedures, which shall be adopted by the Attorney General, that are reasonably designed in light of the purpose and technique of the particular surveillance, to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information;
(2) procedures that require that nonpublicly available information, which is not foreign intelligence information, as defined in subsection (e)(1) of this section, shall not be disseminated in a manner that identifies any United States person, without such person’s consent, unless such person’s identity is necessary to understand foreign intelligence information or assess its importance;
(3) notwithstanding paragraphs (1) and (2), procedures that allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes; and
(4) notwithstanding paragraphs (1), (2), and (3), with respect to any electronic surveillance approved pursuant to section 1802 (a) of this title, procedures that require that no contents of any communication to which a United States person is a party shall be disclosed, disseminated, or used for any purpose or retained for longer than 72 hours unless a court order under section 1805 of this title is obtained or unless the Attorney General determines that the information indicates a threat of death or serious bodily harm to any person.
Source: http://www.historycommons.org/
Why is this in here? Simple, when FISA was passed in 1978, Congress did not want the Act to become the basis for a nationwide and continuous surveillance program, nor did it want ancillary information obtained by federal agencies used for purely political purposes (again, the whole point of FISA). So in this regard, any program that collects data on U.S. citizens is supposed to be close-ended, not open-ended, and non-vital information is supposed to be dumped, forthwith. FISA is specifically about not creating a permanent database on things like phone records. It doesn't matter if the data is regular run-of-the-mill data or if it is "metadata," the federal government is not supposed to be holding on to it, period.

With all of this in mind, let's return to Obama's defense of the program:
My concern has always been not that we shouldn’t do intelligence gathering to prevent terrorism, but rather are we setting up a system of checks and balances? So, on this telephone program, you’ve got a federal court with independent federal judges overseeing the entire program. And you’ve got Congress overseeing the program, not just the intelligence committee and not just the judiciary committee -- but all of Congress had available to it before the last reauthorization exactly how this program works.
The President apparently thinks everything is hunky-dory with the program, that a working system of checks and balances is in place, with the FISA court front and center in this regard. One must ask: if this is the case, then how has the NSA managed to establish a program that does exactly what FISA--and therefore the FISA court--was supposed to prevent?

Mind-boggling.

Cheers, all.