Wiretapping, FISA, and the NSA, 2006-01-11
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If the search is done with consent (and here is the tough part - maybe with just the consent of the ISP), or because of some imminent harm or exigent circumstance, or to protect the safety of the police, or for a whole host of other exceptions carved out by the Supreme Court (including because its in a car), then no warrant is necessary.
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For interception of the contents of communications within the United States (whether among citizens or not) the government (typically the FBI) can get a warrant under the federal wiretap statute (called Title III) or the Electronic Communications Privacy Act. Such warrants are difficult to obtain, must be supported by a finding of probable cause to believe that a crime has been or will be committed and that the tap will uncover evidence of that crime, and that reasonable steps have been taken to minimize the possibility that non-criminal conversations (or e-mails) will be intercepted and examined. As part of the USA-PATRIOT Act, Congress authorized so-called "roving" wiretaps, which allow the FBI and not the Court to decide that a target was now using a different telephone, and to transfer the wiretap authority from one phone to another. This resulted in reports of hundreds of erroneous wiretaps for the wrong telephone number, address, or email address.
But Title III wiretap orders apply only to findings of criminal activity. Now it is difficult for me to imagine a circumstance where someone could be part of a terrorist organization, planning or discussing terrorist activities and not be suspected of a crime. Terrorism is a crime. Murder is a crime. Destruction of property is a crime. Conspiracy is a crime. Money laundering, fraud, immigration fraud, false statements, counterfeiting - all of these are crimes. In the recent Spielberg movie Munich, Mossad agents assigned to assassinate those responsible for planning the abduction and murder of Israeli Olympic athletes agonize over the legality of their actions, but ultimately focus on its necessity. Niceties of the law are rarely debated on the battlefield, and according to the current administration, the battlefield is everywhere and forever.
The Foreign Intelligence Surveillance Act (FISA)
Nevertheless, the executive branch has another mechanism for obtaining court orders to intercept communications (including e-mail) if the government doesn't believe that it has evidence of a crime. The Foreign Intelligence Surveillance Act allows the government to get an interception or seizure order (or a secret search warrant) by proving to a special super-secret court that the purpose of the surveillance is to obtain foreign intelligence, including (as amended by the USA PATRIOT Act) intelligence about terrorism.
FISA orders are directed at interceptions of "U.S. Persons" meaning U.S. citizens or permanent resident aliens, or U.S. corporations. Thus, if a U.S. person is the target of the surveillance, FISA by its terms, applies. If the U.S. person is not the target, but is otherwise intercepted, the surveillance is okay as long as there are appropriate minimizations procedures in place.
Prior to the enactment of FISA, domestic wiretaps were routinely done for "national security purposes" under nothing more than Presidential authority. Presidents from Roosevelt to Nixon ordered domestic wiretaps to protect national security. Indeed, prior to the enactment of the FISA statute, there used to be an exception in the wiretap criminal statute that provided, "[n]othing contained in this [statute] shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities..." The Nixon administration used this exception to conduct surveillance and interception without warrants on a host of domestic "subversive" groups. When this was revealed, Congress stepped in to limit the abuses by giving the President a mechanism for conducting foreign intelligence (and now terrorism) investigations by passing the Foreign Intelligence Surveillance Act (FISA).
FISA and Presidential power
With the enactment of the FISA statute, this provision was changed to essentially read that FISA now "shall be the exclusive means by which electronic surveillance and the interception of domestic wire, oral, and electronic communications may be conducted." Thirty three years ago the US government tried to rely on pure Presidential power to engage in domestic surveillance of domestic subversive groups without a warrant. U.S. Supreme Court rejected the government's contention that the courts were not prepared to deal with the sensitive classified information, could not make informed decisions about the threats to national security, and that the President had independent authority to order these wiretaps without the Courts. Even if the wiretaps were "reasonable" the Supreme court opined, they violated the Fourth Amendment. Shortly thereafter, the same court found that even the Attorney General could be held liable for authorizing these "national security" wiretaps in that case against a group planning to bomb bridges and tunnels. It was this precedent, establishing that a government official's immunity for ordering such illegal wiretaps is only limited that Supreme Court nominee Samuel Alito sought to reverse when he was advising the Reagan Administration's Justice Department.
Alas, the court also noted that this opinion applied only to wiretaps of domestic groups unaffiliated with foreign entities. The government later tried to use this "foreign" exception to the restrictions to national security wiretaps to wiretap conversations of a Daniel Ellsberg with his lawyer, because the tap was on the phone of a non-U.S. citizen, even though, according to Justice Douglas, "the intercepted conversations ... had nothing to do with respect to activities of foreign powers or their agents." Again, the government tried to assert additional authority for non-court ordered wiretapping.
Why not FISA for the NSA?
If these taps truly were aimed narrowly at "bad persons talking to bad persons" why couldn't the NSA get a FISA warrant? The President and Attorney General have both opined that it would be impossible to do so because of the "need for speed," despite the fact that FISA allows warrants to be issued after the fact. In addition, the President has stated that FISA was designed for "extended" surveillance - presumably implying that the wiretaps and email surveillances at issue were for a brief period of time. The administration has also asserted that they couldn't ask Congress to amend FISA because that would have alerted our enemies to the fact that we were intercepting communications.
Now anyone who has worked in a bureaucracy knows how hard it is to get anything done. Indeed, to get a FISA tap, the NSA agent monitoring traffic in the field (whether that is in Afghanistan, at an ISP, or in Fort Meade, Maryland) would likely have to get the approval of several levels of supervisors, and then lawyers for the NSA would get involved. Then the NSA would have to involve the Department of Justice's Office of Intelligence Policy and Review, and the Office of the Attorney General to review and analyze the FISA order, establish appropriate minimization procedures, and present the case for review by the FISA court. Finally, the FISA court would be convened and review, modify or approve the request for a wiretap. The wheels of justice grind exceedingly slow.
I can't imagine however, that the non-FISA "presidential authority" wiretaps would be much faster. NSA agents and supervisors, NSA counsel and the Department of Justice would all have to be involved in approving the wiretaps, and they would then have to be reviewed by the White House, and ultimately approved by the President himself. This may turn out to be a case where the need for "speed" is really a euphemism for the need to assert Presidential authority over the courts.
So what is likely to happen? Already one member of the FISA court has resigned in protest, and Congress is likely to hold hearings not only on the specifics of the NSA wiretaps but also on whether FISA needs to be reformed in light of the government's needs. If the President's authority is, as he asserts, plenary during a time of war, then laws like the USA-PATRIOT Act would be unnecessary, and would in fact limit the President's plenary powers. One thing is certain. The "war on terrorism" is a fundamentally different kind of war than, say the Civil War or World War II, new threats, new laws and new technology make for interesting times.
