A War Like No Other (34 page)

Under Title III, the government is required to give all subjects of a wiretap notice of an interception after the surveillance is complete. There is no such notice requirement in FISA. In the standing case handed down by the Supreme Court in 2013, the government indicated that under the 2008 FISA Amendments, individuals would be provided notice of an interception when the government intends to use that interception as part of a criminal prosecution.
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Justice Samuel Alito, who wrote for the majority in that case, made reference to this possibility in trying to explain why the Court’s opinion denying standing to the named plaintiffs did not insulate the statute from judicial review. Although the terms and conditions of that notice remain unclear to me, let us assume that as a result of this promised notice an individual might, now and then, learn that he or she had been the subject of a FISA tap. Then that individual might be able to demonstrate in a subsequent action for damages that the surveillance was undertaken for the worst of reasons, for example, to make life difficult for a political enemy or to learn of the accused’s strategy in an ongoing criminal prosecution.

But this imagined scenario hardly lives up to one of the assumptions underlying the special needs exception: namely, that a retrospective action for damages might hold the government accountable and thus avoid unreasonable infringements of privacy. The receipt of the promised notice for a FISA tap is likely to be a rare and isolated event, available only if a criminal prosecution is launched against one of the victims of the interception. In any event, such notice and the action it might
prompt do not adequately guard against the principal harm of wiretapping—the fear of being heard by others. This fear might limit conversations, or discourage them altogether, which would be a tremendous loss for the individual and impair the democratic character of society, even though it is not likely to be a sufficient basis for an action for damages.

C. Extraordinary Crimes and the Problem of Overbreadth.
In an era that began with the terrorist attacks of September 11, 2001, the temptation is great to develop a special rule for surveillance activities aimed at preventing further terrorist attacks. This rule would free the government from the Fourth Amendment warrant requirement in such cases and might be justified in terms of the magnitude or severity of the harm to be avoided. No warrants are required, under this theory, for the investigation of extraordinary crimes.

Such a rule might be understood as an expansion of the special needs exception, which is premised on the disjunctive reading of the two clauses of the Fourth Amendment that makes reasonableness the touchstone of legality. The test is not whether the surveillance is authorized by a warrant based on probable cause but whether the government’s action is unreasonable. From this perspective, it would be difficult to fault the government for instituting a wiretap without first obtaining a warrant when the purpose of the surveillance is to prevent terrorism.

In a recent case,
United States v. Jones,
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Justice Alito suggested yet another way of conceptualizing this special rule for terrorism, though the result would be the same—no warrant would be required. For Alito, the Fourth Amendment does not protect privacy but only a reasonable expectation of privacy, and the severity of the harm to be avoided would enter into the judgment as to whether there was a violation of that expectation.
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When investigating extraordinary offenses, such as those involving terrorism, there may be, under Alito’s theory,
no intrusion of a reasonable expectation of privacy, and thus no warrant would be required.
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In the
Jones
case, the police had installed a Global Positioning System (GPS) tracking device in the undercarriage of a suspect’s car without first obtaining an adequate warrant. The device was used to track the vehicle’s movement over the next twenty-eight days.
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Justice Scalia wrote the opinion for the Court and in it he applied a methodology reminiscent of Chief Justice Taft’s decision in
Olmstead.
Scalia first said that the car was an “effect” within the meaning of the Fourth Amendment, and then concluded that the act of installing the GPS device constituted a trespass and thus was a “search” or “seizure” within the meaning of that amendment.
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Justice Alito wrote a special concurrence in which he disassociated himself from Justice Scalia’s mode of analysis. Condemning the police practice within the framework of
Katz,
Alito maintained that the police had violated a reasonable expectation of privacy and thus were required to obtain an appropriate warrant authorizing the surveillance.
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In insisting on such a warrant, Justice Alito emphasized the length of the surveillance—twenty-eight days.
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He thought that relatively short-term monitoring of a person’s movement on a public street might be in accord with “expectations of privacy that our society has recognized as reasonable.”
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In restating this conclusion, however, Alito also made the nature of the offense relevant for determining whether there was interference with a reasonable expectation of privacy and thus whether a warrant was necessary. As he put it, “the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.”
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In saying this, and speaking of “most offenses,” Justice Alito appears to contemplate a special rule for exceptional or extraordinary offenses. Mindful of the novelty of this approach, however, and perhaps in an effort to satisfy the other justices who joined his opinion—Justices
Breyer, Ginsburg, and Kagan—he ended his opinion with a disclaimer, so evocative of the national security disclaimer in
Katz
and the foreign intelligence gathering disclaimer in
Keith:
“We also need not consider whether prolonged GPS monitoring in the context of investigations involving extraordinary offenses would similarly intrude on a constitutionally protected sphere of privacy.”
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The defendant in
Jones
was charged with drug trafficking—surely not an extraordinary offense. Terrorist activities on the scale of the 9/11 attack or any other acts of international terrorism may have that quality of extraordinariness to which Justice Alito referred. My inclination, however, is to resist the temptation to allow an exception to the warrant requirement for so-called extraordinary crimes, regardless of how the exception is formulated.

For one thing, I fear that an exception to the warrant requirement for extraordinary crimes would be susceptible to great abuse. The government can always claim that it is seeking to prevent an extraordinary crime and then defend that claim on the basis of knowledge that it alone has. Even more, I fear the jurisprudential consequences of such an approach. It would impair the authority and near-sacred quality of the Constitution, which, in addition to establishing the structure of government, defines the highest ideals of the nation. It would also put judges into the business of making exceptions to a standard rule that is not easily cabined and that is at odds with their obligation to say what the law is. Pragmatic considerations often enter into judicial judgments, but never in a way that permits disregard for a clearly established constitutional rule.

However, even if Justice Alito has his way and an exception to the Fourth Amendment warrant requirement were allowed for extraordinary offenses, it is hard to see how it might save the 2008 statute, or even the FISA scheme in general. These statutes,
in contrast—say, to President Bush’s Terrorist Surveillance Program—are in no way limited to surveillance that is aimed at al-Qaeda or associated forces, or even international terrorism in general. As originally enacted, the 1978 FISA statute defined a foreign power to include a group engaged in international terrorism and then defined foreign intelligence in a way to include information about international terrorism. Yet the statute is not confined to terrorism. In 2004, FISA was amended to include suspected terrorists who acted on their own,
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but that only broadened the reach of the statute.

In utilizing the powers granted by the 2008 statute, the attorney general may be guided by an understanding of the historical context in which the statute was enacted—the statute was passed during an era defined by the War on Terror and, in essence, sought to give legislative authorization for President Bush’s Terrorist Surveillance Program. Under these circumstances, the attorney general might well decide to use the 2008 grant of authority only for the purpose of preventing international terrorism or pursuing those who have engaged in such terrorist activities. But we can never be sure of that. The FISA regime—as originally enacted and amended in 2008—reaches more broadly and thus exacts a toll on our freedom. The very existence of the statute gives rise to the fear that international telephone calls will be tapped without the kind of judicial scrutiny and authorization required by the Fourth Amendment.

In the context of the First Amendment and its guarantee of freedom of speech, we have learned to judge statutes on their face—on the basis of all their possible applications. Under the so-called overbreadth doctrine, the Court will strike down statutes that arguably may have some constitutionally permissible applications if there are a substantial number of applications that impinge on activities that are concededly constitutionally protected.
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The Court will declare the statute invalid on its face
as a way of enlarging the freedom of citizens to participate in those activities that are constitutionally protected. Legislators remain free to prohibit the activities that may be constitutionally unprotected, although they must do so in a way that narrowly targets those activities and thus economizes on the sacrifice of First Amendment freedoms.

A similar doctrine needs to be recognized in the Fourth Amendment context.
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In the First Amendment context, the overbreadth doctrine was announced as a protection against the chilling effect of a criminal statute. The 2008 act, as well as the original FISA statute, is a grant of authority to the executive, not a criminal statute addressed to the citizenry, and yet such a grant of authority may have the effect of discouraging—or chilling—the exercise of personal liberty, in this instance the liberty to engage in private telephone conversations. Thus, even if Justice Alito’s theory is embraced—even if there are some offenses that are so extraordinary that we may allow the government to investigate them without a warrant—the statute that permits or authorizes such investigative activity must fall when it reaches such a broad category of investigative activity as “foreign intelligence gathering.” The legislators must go back to the drawing board and come up with a statute confined to investigations related to international terrorism. Then and only then will the Supreme Court have reason to decide whether international terrorism is the kind of extraordinary offense that Justice Alito contemplated and whether an investigation of such an offense justifies an abandonment of the traditional warrant requirement of the Fourth Amendment.

One branch of the principle requiring separation of powers warns against unilateral exercises of executive power. From this perspective, the 2008 statute, compared to President Bush’s Terrorist Surveillance Program, might be seen as a step forward, or maybe a half step. In it, the role of the judiciary is minimized,
but Congress nonetheless authorized what Bush had decreed. From the perspective of the Fourth Amendment and the values it seeks to protect, however, the 2008 statute is a step backward because its authorization of warrantless wiretapping is in no way confined to terrorism or to the investigation of any other extraordinary offense. Like much of what has happened during the post–September 11 era, such as the use of military commissions and prolonged, indefinite imprisonment without a trial, the 2008 statute has transformed the exception into the rule. At the moment, the authority to engage in warrantless wiretapping is confined to the process of gathering foreign intelligence, broadly construed. If left unchecked, it will provide the foundation for a similar authority in other realms and thus become, I fear, a new point of departure.

Prologue to Chapter 10

Trevor Sutton

Most of the essays in this volume examine national security policies that originated during the Bush administration and were subsequently extended by President Obama. Although critics of these policies can justifiably blame Obama for prolonging them, it is important to recognize that Obama’s choices were to a significant degree constrained by his predecessor’s actions. Obama may have failed to close Guantánamo, but it was Bush who established the Guantánamo prison in the first place. Obama may have failed to try Khalid Sheikh Mohammed and other accused terrorists in federal court, but it was Bush who propagated the belief that some individuals are too dangerous to be tried by Article III judges and juries. Obama may have failed to investigate and prosecute practices such as “enhanced interrogation” and waterboarding, but it was under Bush that those practices actually occurred.

The topic of the following essay is different. It concerns an area of government activity for which Bush laid some legal foundation but which Obama transformed into a major
component—maybe the central component—of his counterterrorism strategy: the use of targeted killings to eliminate terrorist threats outside a theater of armed combat, typically by drone attack. Bush lifted the twenty-five-year-old ban on assassination in the wake of the September 11 attacks, but for the remainder of his term that power was exercised sparingly (so far as we know). For all the justified criticism that accompanied the Bush administration’s prosecution of the War on Terror, it was chiefly a military campaign, and not one conducted by the CIA. Moreover, away from hot battlefields, al-Qaeda members were less likely to be killed outright than to be apprehended for interrogation and prolonged detention.