Operational Reasons for Avoiding the FISA Process
On this topic, I'll note that I've got about 20 years of experience in computer security, DoD classified stuff, and in particular, spent a number of years doing operational intelligence collection and analysis systems. So, absent soemone with a current clearance and active knowledge of this operation, I think I'm fairly well informed.
And, of course, anyone who actually has real operational knowledge shouldn't be talking about it anyway. (But more on that later.)
One of the questions that has been raised is "why do they need to act so quickly"? So, let's just discuss that for a minute.
Let's say, for purposes of illustration, that a known or suspected al Qaeda member, Alice, is captured in Pakistan. ("Alice", in this case, might be Khalid Sheikh Mohammed for a concrete example.) At the time of capture, Alice has a laptop computer with a number of phone numbers, email addresses, and possibly some IP addresses either stored in user files, or in some logging data. One of these phone number is a "disposable" cell phone belonging to Ben in the USA. Ben is a legal permanent resident of the US and therefore might otherwise be considered a "US person."
It is the nature of this kind of network that once a node is known to be compromised, all connections to that node are dropped. Ben would put the cell phone in the trash or give it to a rape crisis center or whatever. So the various intelligence agencies --- this lies somewhere in both the domain of CIA and NSA --- know there is a very small time, in the order of hours, to exploit this intelligence before it goes stale. They need to intercept communications. (It might even be as simple as holding the phone up to Alice's mouth when a call comes in.)
Now, assume they feel they need FISA authorization before they can do so. How likely is it that FISA authorization can be obtained in a sufficiently short time? Operationally, you need to be able to act in minutes, not hours, to exploit this intelligence; we have the former DIRNSA's statement that this has led to collecting intelligence they wouldn't otherwise have had.
Aside: As an intelligence guy, by the way, this disclosure does bother me quite a bit. What it's done it put on notice everyone from whom intelligence is currently being collected that we're doing the collection. They probably stopped. As the president said in his press conference today, we've had that experience before, with the bin Laden satphone intercepts. Which, by the way, were blown by Orrin Hatch, so he's picked an example out of his own party. It's also notified al Qaeda et al that in the future, they have a much shorter window before a captured channel could be exploited; they will probably change their procedures as a result. At least I sure as hell would. Personally, I'd think the Attorney General should be thinking about prosecution under 18 USC 793, not 50 USC 1801 et seq. But not prosecuting the Administration.
Legally, and now recall I'm not a lawyer, just a logician, but I note that §1801(a) defines who a "foreign power" is, and §1801(b) defines who an agent of a foreign power is. As I understand it, once you're defined to be an "agent of a foreign power" you no longer enjoy all the protections of a "US person." Since 1801(b) specifically includes people engaged in or supporting international terrorism, seems there would be an argument that the Attorney General could authorize surveillance and intercept on that basis using the procedures in §1802 et seq.
Now, this analysis seems to pretty much depend on whether or not a person engaged in international terrorism loses some of the protections of being a "US person". It seems to me from the standpoint of logic that if you're excluded from the class of "US persons" in §1801(a-b), then you lose the protections accorded a "US person" in §1802.
Annoyingly, however, §1802 also says you can only conduct warrantless searches on people defined under §1801(a)(1-3), which leaves out the "terrorism" parts. On the other hand, it may be that al Qaeda is a "foreign power" under §1801(a)(1-3), which would appear to make someone who is an "agent" of al Qaeda fit the definition of someone who is an agent of a foreign power. Then §1801(e) comes in and makes this "foreign intelligence information." So, if I were a lawyer, I think I might very well want to argue that it all adds up to suggest that the "US person" restriction doesn't apply, at least as far s collection goes.
It would also appear that, from that USA v bin Laden decision, the District Court specifically appears to give some strength to that argument, but then excludes evidence collected under such an exception from the trial. This seems, to my untutored legal mind, to make good sense --- and operationally, it's fine with me, because I don't want to try these people, I want to track down their superiors and cells and kill them. We can try the survivors; this is a war.
But, it also appears that this has been a question before --- the events in USA v bin Laden happened in 1997. US Signals intelligence Directive 18 lays out the procedure and seems to very closely match what was described in Bush's statement. (See sections 4 and 5.) This directive dates from 1993. It's been widely reported that there was a program called ECHELON that did collect intelligence throughout the 90's. And I've seen it reported that the Carter administration made a similar executive order in 1979.
So, again, I am not a lawyer --- but it seems like there's some precedent here.
Now, if we look a little more closely at §1802, I'll note that the title of the section is "Electronic surveillance authorization without court order." The whole section lays out the circumstances under which intelligence intercepts can be performed without a court order.
The fact that this section exists makes it clear the law does contemplate the possibility of doing intercepts without a court order (warrant). What's more, the code lays out two different procedures under which it can be done: first, under §1805, you can do it and apply later (within 72 hours, see §1805(f)); or, second, according to §1802, if you're not concerned with "US persons" under §1801 then you can collect without a warrant, and all you must do is file with the FISA court, under seal, a notice that you've done so, plus inform the Congress.
We know that the Attorney General certified this as needed; we know the Congress has been briefed; the actual certification would be classified, but I just don't see any reason to think the certification hasn't been filed.
Practically, it appears we've got a situation in which (a) the Administration received competent legal advice that it was permissible; (b) they followed the procedures laid out in the statute and USSID 18; and (c) that it is something that has been done in previous administrations, and if we have to be partisan about it, by administrations of both parties.
Given all of these things, I suspect that there's at the very least a pretty strong "good faith" issue here, ie, that the Administration could in all good faith believe it to have been legal.
Other People's Arguments
James Robbins more or less repeats my arguments about 1801, 1802, and so on.
I argued below that I thought the President, in his radio address, was more or less following that same argument. I still think so, but today in his press conference, he laid out an argument based on presidental powers under the Constitution; so did the AG. Hugh Hewitt lays that out. I usually find Hewitt a little too polemical, but he is an attorney, and his argument seems to match the one the AG used.
Byron York makes some pragmatic arguments.
Orin Kerr did a long post on it at Volokh; he addresses the §1801 issue, and argues:
So as I read the statutes, Congress was trying to give an exception for monitoring foreign governments (a1, a2, a3) but not terrorist groups (a4, a5, a6), so long as no citizens or lawful permanent resident aliens were being monitored. There are interesting questions of how that might have applied to Al Qaeda in Afghanistan, but I don't think we need to reach them. It's my understanding that the program monitored both citizens and non-citizens, so I don't see how the exception is applicable.
But then, when I look at this "USA v bin Laden" case, the District Court says
"this Court adopts the foreign intelligence exception to the warrent requirement for searches targeting foreign powers (or their agents.)"
It goes on to say:
The Court is also persuaded that al Qaeda was properly considered a foreign power. In reaching this conclusion, the Court relies on the definitions of "foreign power" and "agent of a foreign power" which were incorporated by Congress in FISA See 50 USC 1801(a)-(b).
They then go on to say that the collection of intercepts under the "USA v bin Laden" case was unlawful, but specifically because the Government didn't get the authorization of the President or AG. It follows logically that if they had the President's authorization, the possibility exists at least that it would have been lawful. (I think if I were playing an advocate I'd argue that more strongly, but I don't think it follows by syllogism.)
In any case, it seems to me that the District Court doesn't agree with Prof. Kerr. One of the attornies that hang around here might weigh in on this.
- A former Air Force intelligence officer, Emily Francona, says:
Whether the President acted under proper executive authority will undoubtedly be determined during hearings of the Senate Judiciary Committee. But he did follow requirements for legal review of his orders by consulting with the NSA Legal Counsel and the U.S. Attorney General.
He also followed congressional oversight requirements by notifying the appropriate congressional committees in a timely manner. And it is customary for more sensitive activities to be briefed only to a limited number of senior oversight committee members to avoid leaks of classified national security information. Our current system of checks & balances does not require congressional oversight committees to approve intelligence activities in advance, only that they be notified of significant activities in a timely manner.
Perhaps the most improtant aspect of this debate is whether we, the people, are comfortable with executive powers being invoked in certain circumstances to protect the nation: I would argue that under certain national security related circumstances it is necessary to trust the President of the U.S. to do the right thing - we elected him to conduct the people's business to the best of his ability.
- Interestingly enough, 50 USC 1811 broadens the President's powers after a declaration of war. But we're not at war, you say?
Well, Joe Biden disagrees:
M: (Inaudible) Talbot(?). Senator, thank you for this broad gauged approach to the problems we face. My question is this, do you foresee the need or the expectation of a Congressional declaration of war, which the Constitution calls for, and if so, against whom? (Scattered Laughter)
JB: The answer is yes, and we did it. I happen to be a professor of Constitutional law. I'm the guy that drafted the Use of Force proposal that we passed. It was in conflict between the President and the House. I was the guy who finally drafted what we did pass. Under the Constitution, there is simply no distinction ... Louis Fisher(?) and others can tell you, there is no distinction between a formal declaration of war, and an authorization of use of force. There is none for Constitutional purposes. None whatsoever. And we defined in that Use of Force Act that we passed, what ... against whom we were moving, and what authority was granted to the President.
- Interesting quote:
"The Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes," Deputy Attorney General Jamie Gorelick testified before the Senate Intelligence Committee on July 14, 1994, "and that the President may, as has been done, delegate this authority to the Attorney General."(See Byron York today.)
"It is important to understand," Gorelick continued, "that the rules and methodology for criminal searches are inconsistent with the collection of foreign intelligence and would unduly frustrate the president in carrying out his foreign intelligence responsibilities."
- Via The American Thinker today, I learn of this executive order authorizing the Attorney General to conduct warrantless searches for foreign intelligence information under 50 USC 1801 et seq. Who was the executive? Jimmy Carter.