Bush's illegal wiretaps and the unPATRIOTic Act: a timeline

Why did the president find it necessary to order the NSA to bypass a secret court set up expressly for this purpose and spy on people within the United States without a warrant? Why did this revelation upset enough Senators to help Russ Feingold uphold a filibuster against renewal of the PATRIOT Act?  Why did it upset Arlen Specter enough to immediately call hearings to investigate? And why does Bush's order constitute not only a violation of the Fourth Amendment of the Constitution, but also a 1968 decision by the United States Supreme Court?

Answers after the jump...

Why did the president find it necessary to order the NSA to bypass a secret court set up expressly for this purpose and spy on people within the United States without a warrant? Why did this revelation upset enough Senators to help Russ Feingold uphold a filibuster against renewal of the PATRIOT Act?

The revelation that Mr. Bush had secretly instructed the security agency to intercept the communications of Americans and terrorist suspects inside the United States, without first obtaining warrants from a secret court that oversees intelligence matters, was cited by several senators as a reason for their vote.

Why did it upset Arlen Specter enough to immediately call hearings to investigate?

Senator Arlen Specter, the Pennsylvania Republican who is chairman of the Judiciary Committee, has said he would conduct hearings on why Mr. Bush took the action.

And why does Bush's order constitute not only a violation of the Fourth Amendment of the Constitution, but also a 1968 decision by the United States Supreme Court?

Alright, let's start with two of our main protagonists, FISC and FISA:

The United States Foreign Intelligence Surveillance Court (or FISC) is a U.S. federal court authorized under 50 U.S.C. § 1803 and established by the Foreign Intelligence Surveillance Act of 1978 (known as FISA for short). Its jurisdiction is to oversee requests for surveillance warrants by federal police agencies (primarily the F.B.I.) against suspected foreign intelligence agents inside the United States.

Each application for one of these surveillance warrant (called a FISA warrant) is made before an individual judge of the court. Like a grand jury, FISC is not an adversarial court: the federal government is the only party to its proceedings. <snip> [D]enials must be appealed to the United States Foreign Intelligence Surveillance Court of Review. Such appeals are rare: the first appeal from the FISC to the Court of Review was made in 2002, 24 years after the founding of the FISC.

Because of the sensitive nature of its business, the FISC is a "secret court"

The first time the government appealed a FISC ruling was in 2002? Why, what a funny coincidence:

Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible "dirty numbers" linked to Al Qaeda, the officials said.

Domestic spying w/o judicial oversight started precisely at the same time the government for the first time ever appealed an unfriendly FISC ruling. So what exactly happened in 2002? Let Professor William C. Banks, director of the Institute for National Security and Counterterrorism, tell the story as he did in testimony before the Senate Judiciary Committee on September 10, 2000 (and let me fill in some of the gaps). We begin with United States v. Keith, the 1968 SCOTUS decision that denied the president the authority to order surveillance without a warrant - the very ruling Bush has now violated. First some historical background flavor, from the Times:

The N.S.A. domestic spying operation has stirred such controversy among some national security officials in part because of the agency's cautious culture and longstanding rules.

Widespread abuses - including eavesdropping on Vietnam War protesters and civil rights activists - by American intelligence agencies became public in the 1970's and led to passage of the Foreign Intelligence Surveillance Act, which imposed strict limits on intelligence gathering on American soil. Among other things, the law required search warrants, approved by the secret F.I.S.A. court, for wiretaps in national security cases. The agency, deeply scarred by the scandals, adopted additional rules that all but ended domestic spying on its part.

Now Professor Banks:

Thirty years ago the Supreme Court first confronted the tensions between unmonitored executive surveillance and individual freedoms in the national security setting. United States v. United States District Court (Keith) arose from a criminal proceeding in which the United States charged three defendants with conspiracy to destroy government property - the dynamite bombing of a CIA office in Ann Arbor, Michigan. During pretrial proceedings, the defendants moved to compel disclosure of electronic surveillance. The Government admitted that a warrantless wiretap had intercepted conversations involving the defendants. In the Supreme Court, the government defended its actions on the basis of the Constitution and a national security disclaimer in the 1968 Crime Control Act. Justice Powell's opinion for the Court first rejected the statutory argument and found that the Crime Control Act disclaimer of any intention to legislate regarding national security surveillance simply left presidential powers in the area untouched.

Turning to the constitutional claim, the Court found authority for national security surveillance implicit in the President's Article II Oath Clause, which includes the power "to protect our Government against those who would subvert or overthrow it by unlawful means." However, the "broader spirit" of the Fourth Amendment, and "the convergence of First and Fourth Amendment values" in national security wiretapping cases made the Court especially wary of possible abuses of the national security power. Justice Powell then proceeded to balance "the duty of Government to protect the domestic security, and the potential danger posed by unreasonable surveillance to individual privacy and free expression." Waiving the Fourth Amendment probable cause requirement could lead the executive to "yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy and protected speech."

 

The eventual result of the Keith decision was FISA, creating a special system of judicial oversight in line with the government's need to conduct intelligence gathering for national security concern in secrecy:

Although Congress did not react immediately to Keith, Justice Powell's opinion provided an important impetus for the development of what became the Foreign Intelligence Surveillance Act of 1978 (FISA). Like the Supreme Court, Congress recognized that warrantless surveillance by the executive branch untethered by law could undermine important constitutional values at the confluence of the First and Fourth Amendments. At the same time, Congress came to appreciate that the nature and purpose of intelligence investigations differs considerably from criminal law enforcement investigations. As such, the traditional warrant requirement as practiced by law enforcement might not be the best model for assuring that the balance of security and liberty is fairly struck in national security investigations.

The FISA system worked fine for 23 years. Then along came the U.S.A. Patriot Act:

In the weeks after September 11, the Justice Department pressed for greater authorities to conduct surveillance of would-be terrorists. Officials reasonably maintained that counter terrorism investigations are now expected to be simultaneously concerned with prevention of terrorist activities and apprehension of criminal terrorists. Surveillance of such targets is for overlapping purposes, both of critical importance. In the USA Patriot Act, Congress agreed to lower the barrier between law enforcement and intelligence gathering in seeking FISA surveillance. Instead of intelligence collection being the primary purpose of the surveillance, it now must be a "significant purpose" of the search or wiretap.

What does this mean? Why does the distinction between intelligence gathering and law enforcement play such an important role in FISA? It's all about the Probably Cause clause of the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and 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.

Prior to the unPATRIOTic Act, all law enforcement was bound to this rule: the government can't search or spy on people unless they establish probable cause, i.e., produce credible evidence that the people in question are involved in illegal activities. FISA created an exception to this rule; but that exception was solely applicable to intelligence gathering for national security purposes. Another Professor, David Cole from Georgetown, explains it better (in his testimony before the Judiciary Committee on May 10, 2005:

FISA does not require the government to show probable cause that evidence of a crime will be found, but only probable cause that the target of the search is an "agent of a foreign power." "Foreign power" is in turn defined so broadly that it encompasses any political organization comprised of a majority of noncitizens. Where "U.S. persons" are the target of a FISA search, the government must make additional showings, but to search the home of a foreign national here on a work permit, for example, the government need only show that he's an employee of an organization made up principally of noncitizens. It need not show that the individual be engaged in any criminal wrongdoing whatsoever, much less terrorism.

Hence the importance of the distinction between intelligence gathering and law enformement. Then along came the PATRIOT Act and purposely muddled this distinction - thereby significantly undermining the power of the Fourth Amendment.  Professor Cole:

Of the surveillance provisions that are subject to sunset, to my mind the most constitutionally dubious may be Section 218. That provision substantially expanded authority to conduct wiretaps and searches under the Foreign Intelligence Surveillance Act (FISA) without probable cause of criminal activity. The number of FISA searches has dramatically increased since the Patriot Act was passed, and for the first time now exceeds the number of wiretaps issued on probable cause of criminal activity. Yet because of the secrecy that surrounds FISA searches, we know virtually nothing about them. The target of a FISA search is never notified that he was searched, unless evidence from the search is subsequently used in a criminal prosecution. Even then the defendant cannot see the application for the search, and therefore cannot meaningfully test its legality in court.

Simply put, the Fourth Amendment puts the bar for the government spying on you at establishing that you're a criminal, and FISA puts the bar for the same thing at establishing that you're an agent of some foreign power. Then along comes the PATRIOT Act and turns FISA into a monster, now allowing the government to spy on you w/o really establishing either thing. But there's still one last hurdle the government has to clear before it can spy on you: it has to obtain a FISA warrant from a judge of that "secret court", FISC.  

And the FISC judges haven't always interpreted the PATRIOT Act quite the way BushCo wanted it to. They didn't do so on May 17, 2002.

Based on the PATRIOT Act, the Ashcroft DoJ moved FISC in early 2002 to do away with all procedures designed to maintain a wall between intelligence gathering and law enforcement. And FISC turned them down. Not only that, but in an unprecedented move, the FISC judges decided to actually make their opinion - signed by all seven judges - public. You can check it out right here. Back to Professor Banks:

The concern exposed by the May 17 FISC opinion is easy to envision, stripping away the technical questions of statutory interpretation: Prosecutors may seek to use FISA to end-run the traditional law enforcement warrant procedures. They gain flexibility that way, but they also become less accountable, and any of us could be subject to surveillance and then arrested and detained without the protections afforded by the criminal justice system.

So the DoJ appeals to Foreign Intelligence Surveillance Court of Review.

The brief of the Department of Justice on appeal to the Foreign Intelligence Surveillance Court of Review is forcefully written. Its legal arguments are powerful. However, it is hardly the case as the brief maintains that the FISC was "plainly wrong." Although the USA Patriot Act did lower the wall between intelligence and law enforcement, it was not removed, and the essence of FISA as an exceptional procedure for the gathering of foreign intelligence information remains.

The Foreign Intelligence Surveillance Court of Review is a three-judge panel appointed by the late Chief Justice William Rehnquist. Of course, the DoJ won. Here's what the ACLU had to say on the day the ruling came down, 11/18/2002:

WASHINGTON - Ruling for the first time in its history, the ultra-secret Foreign Intelligence Surveillance Court of Review today gave the green light to a Justice Department bid to broadly expand its powers to spy on U.S. citizens.

"We are deeply disappointed with the decision, which suggests that this special court exists only to rubberstamp government applications for intrusive surveillance warrants," said Ann Beeson, litigation director of the Technology and Liberty Program of the American Civil Liberties Union.

<snip>

"This is a major Constitutional decision that will affect every American's privacy rights, yet there is no way anyone but the government can automatically appeal this ruling to the Supreme Court," Beeson said. "Hearing a one-sided argument and doing so in secret goes against the traditions of fairness and open government that have been the hallmark of our democracy," she added.

So here's the $64,000 question: Why did BushCo find it necessary even in the face of the review court's ruling in favor of the DoJ to simultaneously start a secret surveillance program that illegally circumvented FISC review? Here of course I can only offer speculation:

• Even if the watered-down PATRIOT Act standards allowed the DoJ to expand FISA procedures to matters of domestic law enforcement, they would still have to deal with the same FISC in every single case. And they knew now, thanks to the May 17th ruling, that that FISC didn't necessarily share their interpretation of the PATRIOT Act.

• I have to wonder to what extent the administration and the DoJ were specifically irked by the FISC's move to make their opinion public. Of course, the FISC judges continue to be bound to upholding secrecy of the affairs they deal with. But might the FISC judges have taken it upon them in the future to make particularly egregious surveillance requests by the government known to the public, without giving away and details of the case at hand, just the fact that those requests existed? I don't know whether this was at all in the cards. But I have to think that the administration and this point no longer trusted the FISC judges.

• It is also an open question whether the illegal program was started prior to the review court's ruling - this seems at least likely. Perhaps the president felt justified in sidestepping judicial review in the face of what he felt was a judicial vacuum. And once enacted, the program was found just too useful to the administration's ambitions to allow it to expire.

So, in sum, here are my tentative answers to the questions I started out with:

• Why did Bush enact a program of domestic spying that illegally sidestepped the FISC? - My guess is, it might have something to do with the fact that the FISC had brought down an opinion in May of 2002 that strongly disagreed with the government's assumed powers of domestic spying.

• Why did the revelation shock a number of Senators enough to join Feingold's filibuster against the PATRIOT Act renewal? - Because it confirmed everybody's darkest fears about the monster Congress had created with that law. The government clearly felt emboldened by the PATRIOT Act to expand domestic spying from intelligence gathering to matters of law enforcement, under minimal judicial review, and as we now know, in many cases with no review whatsoever. Let's hear it one more time from the Grey Lady:

Administration officials were also encouraged by a November 2002 appeals court decision in an unrelated matter. The decision by the Foreign Intelligence Surveillance Court of Review, which sided with the administration in dismantling a bureaucratic "wall" limiting cooperation between prosecutors and intelligence officers, cited "the president's inherent constitutional authority to conduct warrantless foreign intelligence surveillance."

* Why did the revelation upset Arlen Specter enough to immediately call hearings to investigate the government? Perhaps that has something to do with the fact that throughout 2002, in multiple hearings before his committee, experts such as Professors Banks and Cole had warned the committee that this was going to be the effect the PATRIOT Act was going to have on FISA.

And as a reminder, a probably incomplete list of the laws and court decisions Bush has violated:

• The Fourth Amendment of the United States Constitution
  
• The SCOTUS 1968 Keith ruling
  
• FISA
  
• And even the November 2002 decision of the Foreign Intelligence Review Court, which while siding with the DoJ, of course upheld future FISC review.