The New FISA

     What is at stake in the legislation, signed into law last weekend by President Bush, amending the Foreign Intelligence Surveillance Act of 1978 (FISA)? To answer this question, it’s necessary to review how we came to this point.

    The Fourth Amendment generally forbids the government to engage in wiretaps or other forms of electronic surveillance of private communications without a prior judicial determination that there is probable cause to believe that unlawful conduct is afoot.
      In 1972, in the Keith case, the Supreme Court unanimously held that even in national security investigations the president cannot constitutionally conduct electronic surveillance of American citizens on American soil without a judicially issued search warrant based on a finding of probable cause.
      In 1978, Congress enacted FISA, which established special rules dealing with foreign intelligence surveillance. FISA set up a special “secret” court, the Foreign Intelligence Surveillance Court, to handle these matters, but retained the probable cause and warrant requirements. FISA criminalizes any electronic surveillance not authorized by statute and made clear that it set forth the exclusive means by which foreign intelligence surveillance may lawfully be conducted.
      In early 2002, President Bush secretly authorized the National Security Agency to monitor international telephone calls and email messages without any showing of probable cause to believe that a participant in the communication was involved in unlawful or terrorist activity and without requiring a search warrant from a court of law. When the existence of this program came to light in 2005, critics charged that it violated FISA and/or the Fourth Amendment.
      The President and his defenders responded that the NSA program was lawful because (a) Congress had implicitly empowered the President to ignore FISA when it authorized the use of military force after 9/11, and/or (b) FISA is unconstitutional insofar as it limits the President’s inherent constitutional authority to act in the nation’s best interests in his role as “commander in chief” of the armed forces.
      Both of these arguments have been dismissed as groundless by most constitutional scholars, a federal court rejected both arguments and held the President’s secret surveillance program unlawful and unconstitutional, and last January the President agreed to have the program overseen by the FISA court, although it was unclear precisely what that court was to do with program.
      Recently, the FISA court apparently ruled that it could not lawfully approve at least some of the President’s requests to engage in electronic surveillance of international communications because such surveillance was not authorized by FISA. This led to demands by the Bush administration that Congress amend FISA immediately to enable it to carry out this surveillance. 
      What does the amendment authorize? Until last weekend, FISA prohibited the government from intercepting any international telephone call or email communication involving persons in the United States without a warrant from the FISA court based upon probable cause. The amendment authorizes the government to wiretap or intercept any international communication, even if one of the participants is an American citizen on American soil, as long as the intercept is undertaken for foreign intelligence purposes and is “directed at a person reasonably believed to be located outside of the United States.”
      There is no requirement that the government must obtain a search warrant from the FISA court, and no requirement that the government must have probable cause to believe that the person “reasonably believed to be outside of the United States” is a terrorist or even an associate of terrorists. The new legislation empowers the Attorney to authorize such surveillance as long as the purpose is to gather “foreign intelligence” and the surveillance is “directed at a person reasonably believed to be outside the United States.”
    Why should we care about this law?  In general, United States law (statutory and constitutional) does not restrict the ability of the government to search the homes of people in Iraq, to read the mail of people in France, or to wiretap telephone calls in Japan. Why is the new law any different?
      When the government intercepts telephone calls and email exchanges between an American in Chicago and a foreign national in Berlin it intrudes upon the privacy of both parties to the communication. Such surveillance invades the privacy of the American in Chicago just as much when the exchange is with someone in Berlin as when it is with someone in Miami. That the surveillance is “directed at a person reasonably believed to be outside the United States” is no consolation to the American in Chicago.
      Until last weekend, the law did not define the privacy interest of the American in Chicago in terms of whether he was speaking or emailing with a person in Miami or Berlin. In either case, because the surveillance invaded the privacy of an American on American soil, the government needed probable cause and a warrant.
      The simple and proper solution to this “problem” to require the government to obtain a warrant based upon a showing of probable cause whenever it wants to tap a telephone call or read an email exchange involving an American on American soil. That was the law before last weekend and there is no good reason why it should not be the law now.
      That Republicans in Congress supported this legislation is unfortunate. That some Democrats supported it, and thus made its passage possible, is nothing short of disgraceful. Just as they were stampeded by trumped up hysteria into authorizing the invasion of Iraq, once again they have been stampeded into granting the President a power he should never have been granted.
      “Fool me once, shame on you. Fool me twice, shame on me.”

Comments

[LAK]

Huh? "no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

What do you mean it doesn't "conflate" the two? I have no idea what you are saying.

It is quite clear. If the governemnet wants to search you or your stuff, it needs a warrant supported by probable cause. It is plain language at its plainest. You can argue that tapping a phone line is not a search as Lacksabrain does, but that isn't the argument I'd hang my hat on, though it may be the only legitimate one to make in this instance.

Congress can't give the President the power to violate the Constitution. And if you are one of these sophists who thinks it can during "war" time, the fact is FISA was amended after the grant of war powers to explicitly include foreign terrorists along with foreign states, so it was clear it was not their intent to allow the Executive branch to piss all over the 4th amendment and violate FISA (which is itself pretty suspect from a 4th amendemnt standpoint).

Honestly, the willingness to abandon the fundamental protections of our consitution in the face of fear is the saddest thing. It is pathetic and shame worthy. The government spying on its citizens should frighten anyone. It may not be so scary in this instance, but it is a slippery slope. Y'all have gotten intellectually soft living in your comfort zones. Principles are important and exist for more than just consideration on a case by case basis.[EXPLITIVE].

[reshufflex]

"That was the law before last weekend and there is no good reason why it should not be the law now."

Sure there are good reasons; you just don't want to accept them. The critical, salient one, of course, speaks to the timeliness and criticality of the hypothetically conspiratorial discourse-and the need to act upon it forthwith.

Let's walk thru a reasonable hypothetical.

Let's say one of Al Zawahiri's proxies is on a cell phone in Mexico speaking to another proxy in Houston. Let us add, for fun, that it is "a bright cold day in April and the clocks were striking thirteen." Ok. Maybe we can set that aside. Their ominous exchange is brief, code is used, but the message is clear. And it isn't, "no mas, no mas." The proxy in Houston is given final, go-ahead instructions. He's to rent a Piper plane, load it with Tabun gas that was keenly stored at a nearby farm site and fly the plane into the Bush compound in nearby Crawford. Let us pray that Cindy Sheehan is not holding court.

He readily does so, this domestic munition, which is to say, Houston doesn't have a problem...

Too dreamy? An absurd instantiation? Hardly. The 911 terrorists worked in an eerily similar vein.

Under your recommended FISA guidelines, the ones not yet baptized with the curse of Big Brother, at best, the entire doomsday discussion would have required that some FISA judge fast arbitrate the matter and issue a warrant. Uh, huh. There's haste personified. Don't concern yourself suddenly with matters bureaucratic.

At worst, the (surely anti-neocon) jurist rules that no domestic intercepts be allowed-because one of the truly democratic voices was on our soil. And our soil is not to be despoiled. Not like this. Maybe, even, just maybe, the judge would have had an untimely, vexatious sense of humor and quipped that we ought to remember the Alamo.

More to the point, scenarios as above-noted concerning terrorists' exchanges would seem to be the precise methodology that we might expect with our ever-advancing, new-age telecomunications. ATT must be behind this whole thing. Plant a few jihadists, let them assimilate-maybe they can become egalitarian law professors-and then send them an email, a text message with a few simple words. Some words like detonate and Allah. Or, your bill is due.

Continuing the polemic, we know where youre going, ultimately, with your Jeffersonian construct. Better that 12 men die in a suicide attack than one citizen have his library privileges unfairly interposed upon. (How else might one comfortably read 1984?)

Ok, maybe a bit harsh. My bad. Let me tone it down. Pitiful rhetoric. But do tell us, professor. In the age of Orwellian encroachments-putative or not-what is the more likely destiny of our open-ended culture:

1)An end to personal, constitutional liberties or
2) A few wide-eyed boys named al-Something or Other laying waste to it?

And, yea, I'll concede the false dichotomy in advnce, but you'll need to concede that liberty is only precious if one is alive to enjoy it.

-resh

[JackD]

Hamilton,
As you point out, the poll you rely upon is over a year old and is about a different program than the one just voted upon. A congressional vote does not establish the attitude of the electorate but you knew that. I have no contrary poll but was curious as to whether you had one I had not seen.

[LAK]

But Resh,

1. Sounds like we would have probable cause in this situation.

2. FISA already allows you to get a warrant ex-post.

3. While 9/11 was horrifying and scary and certainly could happen again, I'm still more likely to die in a car wreck by multiple powers of ten. Y'all are so scared and so overblown the terrorist threat it is ridiculous.

4. On that note, I'll point out I *am* alive so I would like to enjoy my civil liberties, and as scared as you are about the boogie men, I'm not. Your fear should not be enough to erode my constitutional rights to privacy and to be free from governement searches without cause. It's just that simple. Y'll need to get some curage and some smarts and realize just how much of a threat these guys really are. I'd worry about your heart health and cancer risk first.

[BAC]

LAK,

"If the governemnet wants to search you or your stuff, it needs a warrant supported by probable cause. It is plain language at its plainest."

You can't be more wrong on this point, LAK. Any 1L is familiar with the Supreme Court's decision in Terry, which allowed a search without probable cause (GASP!). And if you took the time to read the SC's decision in Terry, you woud understand that the warrant clause is distinct from the unreasonable search and seizure clause of the Fourth Amendment.

Before lecturing on the Fourth Amendments, perhaps you should spend some time studying the material.

[LAK]

You got me BAC! I mean citing the stop and frisk case? come on. But even then you need "reasonable" cause though, and if I'm not mistaken the holding is limited to weapons searches is it not? Obviously there are exceptions to needing warrants when immediate search by police is involved, but stop and frisk isn't really relevant in the context of premeditated government wiretaps now is it?

I'm hardly wrong on this. Warrants and probable cause are *always* required except in the most limited of circumstances involving police officers stopping you, and still they can only do so for casue and still you are protected by the 4th amendment at all times (thus the limiting of Terry to guns, if I'm remebering my 1L year correctly)

I'm not sure what this has to do with the plain language of the 4th amendment requires warrants and probable cause for a search, other than pointing out that limited expections exist.

Certainly the limited police exception you smugly cite is not relevant to the situation where the governement decides in advance to listen to telephone calls of citizens without any cause whatsoever. In that situation, or in any situation where a warrant can be procured without endagering law enforcement, a warrant and probable cause is still required.

So [EXPLOITIVE] off.

[LAK]

Next why don't you argue that because you can't shout "fire!" in a crowded theater, the Constitution doesn't plainly and clearly state that Congress can't pass laws abridging the freedom of speech.

"You couldn't be more wrong! There is no freedom of speech guranteed by the Constitution. I just pointed out an exception, so clearly the plain language and constitutional protection do not exist."

What an a**hole.

[LAK]

Oh and I realize you can consent to searches as well! Maybe your argument is that by having a phone, you are giving consent to be searched? Cause it aint no stop and frisk, that is for sure. Any other highly limited exceptions you want to cite as reasons the Executive branch should be able to spy on its citizens without a warrant or cause and listen to their private conversations in violation of the plain language of the constitution?

[BAC]

My point, again, was that the probable cause standard in the Warrant Clause is separate from the "reasonableness" standard in the Search and Seizure Clause of the Fourth Amendment. I only cited Terry because you seemed to be struggling with that concept, LAK.

Do you now agree with my point -- which is the same point you lambasted Leif for making?

And the point is an important one because, to the extent you believe the President has authority to conduct warrantless searches, then the Constitutional standard governing the exercise of that power is reasonableness, not probable cause.

But, alas, this is all likely too nuanced for you LAK.

[LAK]

I never said otherwise in the first place, BAC. I never confounded anything, and am completely aware of the two clauses.

And we're not assuming the President has the power to conduct warrantless searches. That's the very issue we're fighting over. The government simply can't conduct searches on citizens without a warrant and any type of cause whatsoever, and it appears that is exactly whatthey are doing. The new FISA says so long as the search is for "foreign intelligence purposes" and the government reasonably believes one of the parties is international, they can listen in without so much a a drop of cause or suspicion the citizen is engaged in illegal activity. As Stone paraphrases the new law:

"There is no requirement that the government must obtain a search warrant from the FISA court, and no requirement that the government must have probable cause to believe that the person “reasonably believed to be outside of the United States” is a terrorist or even an associate of terrorists. The new legislation empowers the Attorney to authorize such surveillance as long as the purpose is to gather “foreign intelligence” and the surveillance is “directed at a person reasonably believed to be outside the United States.”"

So the issue could not be any clearer. It has everything to do with having actual cause and a warrant to tap phones. While there is planty of nuance in 4th amendment jurisprudence, it simply isn't relevant here. We're not talking about the reasonableness of searches, were talking about the plain language requirement set forth in the constitution that if the government is going to wire tap you, listen in on your conversations, spy on you, they sure better have specific cause to do and a warrant to back it up.

Indeed you are the confused one BAC. Sometimes issues aren't that complicated or involve much nuance. We're dealing with the second half of the 4th amendment here plain and simple. It makes you look both smug and dumb at the same time to claim we're not, which is tough to accomplish, but which is something you have managed.

[LAK]

It was Laksabrain who was the confused one if you'll go back:

"And finally -- the Fourth Amendment says unreasonable searches and seizures are prohibited. Telephonic eavesdropping is neither."

I merely corrected him and pointed out what the issue in this post is all about, which is the warrant and probable cause requirement for searches. You see that? So you? Read closely now. You don't want to look any sillier.

[Leif]

There is no probable cause requirement for searches. There is a probable cause requirement for warrants, which protects against the issue of general warrants, which is the abuse that the Framers were trying to curb. Searches themselves must be reasonable, which is why Terry stops are okay - essentially, questioning and patting down is all that is reasonable when an officer has "reasonable suspicion" instead of probable cause. Persons and effects can be seized without a warrant if there is probable cause to do so.

This is such a basic issue of English, legal history, criminal procedure, and constitutional law, LAK, that further discussion is unproductive until you've remediated the gaps in your memory.

[Erasmussimo]

I have a small contribution to make to this discussion; it concerns the willingness of Americans to spy on other people. To illustrate my point, I pose the following question: if we declare a sovereign right to spy on non-Americans, how can we object to any other nation declaring a sovereign right to spy on us? In other words, if the government of, say, China decides that it wants to spy on American citizens, and proceeds to intercept their telephone calls and emails, surely we would have no objection, would we? After all, they would be exercising exactly the same rights we claim for ourselves.

Right?

[Frederick Hamilton]

JackD,
Yes it was a year old. But it was indeed all about the law just passed. It is the same program. The NSA terrorist intercept program. I highly doubt there would be a different view of the majority of Americans with the tweaking of the NSA program just passed. In fact with the recent London experiences I suspect the percentages of Americans wanting our government listening in on international terrorist communications would be higher. Don't you?

It is not a leap of faith to realize that for 41 House Democrats and 16 Senate Democrats to agree with the DNI that the law needed upgrading to protect our ability to intercept and stymie the terrorists represented the will of the people. It surely did. If you don't like the results of the democratic process, get different representatives or get the Supremes to rule the national security international intercepts to be unconstitutional. Good luck.

[Frederick Hamilton]

Eras,
"If" China is spying on American citizens? Please. Of course we have no rights regarding what the Chinese do other than the right to expose them and protest.

The Jerusalem Post just published the official policy of the Chinese regarding visitors carrying crosses, Star of David, Bibles with them on their travels to China. They will be confiscated.

We spy on the Chinese. They spy on us. We spy on the Islamic jihadists. They spy on us. It is a nasty brutish dangerous world we live in. A reality check is needed for most of the commentators on this blog.

And for the Bush derangement folks, as soon as a new administration is ensconsed, they will be listening in on every terrorist call anywhere in the world (inside and outside of America) they can. Have to. The real world and all.

Or all you Ostrichs and Chicken Littles will put us in grave danger. The times, they have really changed. Sad but true.

[Erasmussimo]

Well, Mr. Hamilton, I applaud your consistency in supporting spying by all upon all. I don't approve of such policies, but I acknowledge your consistency.

[Leif]

Eras, Fourth Amendment questions are separate from questions of the law of international relations. The law of nations questions are interesting, but were not the point of the post or the discussion that followed.

I think, though, that we would have to separate government intrusion upon private communications (objectionable, but I do not believe prohibited by the law of nations) from government intrusion upon internal communications of another sovereign - you know, spying.

[LAK]

Silly Leif, don't be such a doctrinal law dork. Honestly. You recognize that warrants are necessary in government searches in all cases except a few highly limited, well defined exceptions, none of which are operative here. And you recognize that warrants require probable cause to be issued. And you recognize all this is because of the plain language of the 4th Amendment. So to say that searches require probable cause pursuant to the 4th amendment is for all functional purposes a useful and true statement. Certainly "cause" is required for a search in this country in light of the fact that at least some kind of cause is required in every instance of one of the exceptions to the warrant requirement.

Point is you need probable cause to conduct any type of planned premeditated search by the government of its citizens, and in all circumstances you need some kind of cause to conduct a search. Point is the FISA rewrite grants the government the power to spy on its citizens with no other requirement than the government believes one of the parties is international. That should scare the shit out of everyone as it is clearly unconstitutional, unless you believe some ridiculous argument about commanders and war powers and unitary suchandsuch trumping the clear intent of the Founders and plain language of the Constitution.

[Lackawanna Blues]

LAK,

Please explain why telephonic eavesdropping is a "search" within the meaning of the Fourth Amendment.

Do you really believe that it's not an arguable position that wiretapping is not a search? The trespass/tort theory prevailed in this country until the Court's decision in Katz. Katz is not defensible on stare decisis grounds or on the basis of a theory of Constutional interpretation other than the "what did I eat for breakfast and how can I please liberals today" variety.

If you can actually put in words a theory of Constitutional interpretation that accounts for why wiretapping is a "search" within the meaning of the Fourth Amendment -- without resorting to phrases like "obviously, like, the zone of privacy that, like, the Framers like, well, like intended us all to have, dude, like must include phone calls, man" then I would count myself surprised.

[LAK]

Well, acknowledging that even the possibility of telephones and of recording the human voice, let alone computerized surveillance and digital "searching" and indexing of words in phone conversations for keywords wasn't part of the general awareness back when the constitution was written, it is more reasonable than not that the government listening in on, recording and searching your words is the exact type of behavior that the founders had in mind when they added the 4th amendment. The 4th amendment captures pretty clearly the idea that you have a right as an individual to be free form government intrusion without cause, certainly everywhere you'd reasonably expect to have privacy, like in your home and in your private conversations, either on your telephone or in person. When I get on the phone, I expect to know who is on with me, as does every other citizen. Given that speech is already given special protection from government interference, that conversations would be considered part of the universe of things over which you would expect to have privacy and be free from government intrusion does not seem like a stretch at all. Not to mention that people can have property rights in thoughts, words and ideas, so that your words would be considered part of your property over which you have a reasonable expectation of privacy in the setting of a private closed conversation is more reasonable than if they weren't considered such. In fact, I would think the burden would be on someone who thinks otherwise to explain why government eavesdropping and recording and seizure of words and sound indexing and "searching" of conversations isn't the proper subject of 4th Amendment scrutiny and protection. What makes words and ideas any less valuable and worthy of protection from government invasion without cause than your person and tangible property?

[JackD]

Hamilton,
The votes of the blue dogs represented a minority of the Democrats in office. Together with the Republicans, as noted by Matt Stoller on Huffingtonpost, we've awakened "to a new working Republican majority." The notion that this represents the views of the majority of Americans is wishful thinking. It might or might not. That year old poll was not about the same issue and you know that.
The fact that someone is in office does not represent what the majority want or believe at any given point in time. Consider the desire of a significant majority of Americans to withdraw from Iraq according to current, not old, polls.

[Lackawanna Blues]

That was a wonderful exposition, LAK. Completely devoid of anything resembling analysis of the meaning of the word "search," but what more should I have expected from a liberal?

Good job re-packaging the logic of the Katz opinion. It becomes all about "privacy" and nothing about "searches" or "seizures." The Amendment doesn't say "privacy." It does refer to a right to "be secure in their persons, houses, papers, and effects." Which one of these covers a phone call? And what gets searched when the government taps your phone?

You are a typical liberal -- you think that every policy result you don't like (the government having limited warrantless wiretap powers) has a solution in the Constutition. Maybe the Constitution is silent on this issue precisely so that the politcal branches (you know, those people we elect to make decisions) can decide what the right level of intrusion on privacy should be.

You ask "[w]hat makes words and ideas any less valuable and worthy of protection from government invasion without cause than your person and tangible property?" Maybe nothing. But since the Fourth Amendment speaks to the latter and not the former, it is for our elected leaders to answer your question -- not you, law professors, or unelected judges purporting to interpret the Constitution to reach your liberal policy ends.

[LAK]

Well seeing that phone calls didn't exist back then, your call for framing my argument within the text is nearly impossible. Times change, so do legal concepts with them. Get real. You are the one who desperately wants to achieve your policy ends by so restricting legal interpretation as to render laws useless over the course of time.

But to please you: phone calls are of your "person" because they are of your voice, which is a part of your "person," and whom you direct your conversation to is also a fundamental aspect of your person. They happen presumptively in peoples houses and the legal equivalents, and one could argue your personal telephone number or cell phone is an extension of your house or being secure in your "house." An interpretation of "papers" could easily include conversation transcripts, given that recording didn't exist then. What the NSA is presumptively doing is listening in on peoples conversations and in the process recording them, which could constitute a "seizure," and searching these recordings for keywords. Computers do a wonderful job at eavesdropping, but in doing so they are "seizing" your voice and words in recording, and maybe even "searching" your voice and words for keywords. How about that? Totally ridiculous, useless and unnecessary, but possible to do for a decent sophist.

[LAK]

And just as a conceptual note, you originalists and strict textualist are very unsophisticated about your legal analysis. You should think of certain laws, certainly constitutional principles, as operators in a large vector space that have no meaning unless they operate on a vector of facts and produce a factual outcome. When you think of law this way you can recognize that just because certain outcomes are new or different based on the underlying facts in a given legal and factual situation, the operator, the law itself, is not necessarily changing, just as it is in math and science. The notion that we as a nation must keep our laws and the text in them perfectly up to date based on changing times is an absurd proposition. It could never happen. The world has changed radically and technological advancement has so changed the realities of our society that legal realism should be viewed as just that: most real. You're not departing from any democratic process when you assume that the 4th amendment applies to phone conversations when phones and voice recording didn't exist when the 4th amendment was drafted. It is an easy case to make, and it wouldn't be so controversial to conservatives if they opened their minds to the tools that allow us to advance in other fields, like math and science.

[BAC]

LAK,

Anyone who writes, "warrants are necessary in government searches in all cases except a few highly limited, well defined exceptions, none of which are operative here," has no grounds for accusing other posters of being unsohpisticated.

The warrant exceptions are neither "highly limited" or "well defined." In fact, the vast majority of government searches take place without a warrant and without probable cause. Think of all the searches the government does at the airport and on our borders -- all without probable cause and all without a warrant. We even let high school principals search any student without a warrant and without probable cause.

So before breezily posting about vectors and operators, perhaps you should study up on the real scope of warrantless searches in our country and the legal doctrines that permit them to happen.