A War Like No Other (32 page)

The original 1978 FISA statute sought to fill the decisional space left by the Court first in
Katz
and then narrowed in
Keith.
The statute established a procedure that required the attorney general to apply to a special court for permission or authorization to intercept telephone calls—both domestic and international—that were being transmitted through facilities located in the United States. This requirement of FISA for prior court approval should not, however, be confused with the warrant requirement that had been imposed by the Court in
Katz
and
Keith.
FISA did not require, as those two decisions had, the government to set forth reasons for believing that the target of the tap is guilty of a crime. The government need only set forth reasons for believing that the target of the surveillance is an agent or employee of a foreign power. The statute further requires the government to assure the court that there is no substantial likelihood that the interception will acquire the contents of communications to which U.S. citizens or persons admitted for permanent residence are parties. It also requires that the interception be likely to secure foreign intelligence, broadly defined by the statute as information that could (but need not) be related to criminal activity, such as sabotage or international terrorism. By the terms of the statute, foreign intelligence may also relate to alleged clandestine intelligence activities or the conduct of foreign affairs.

As a result of the 1978 statute, a dual structure emerged for wiretapping. Some taps required warrants based on probable cause; others, those specifically designed to gather foreign intelligence, did not. Remarkably, to this day—more than thirty-five years later—the Supreme Court has not ruled on the constitutionality of the FISA scheme or the dual structure it created. Yet a number of lower courts upheld the statute.
³⁴
Those courts then faced a new quandary: could the transcript of a telephone
conversation obtained through the less demanding FISA procedures be admitted into evidence in criminal prosecutions?

These courts could have held that the probable cause requirement of
Katz
and
Keith
had to be satisfied whenever the result of a wiretap was to be introduced in a criminal prosecution. They chose a more permissive rule, however, and defined that rule in terms of the purpose of the interception. As long as the primary purpose of the tap was to gather foreign intelligence, the government could follow the less demanding FISA procedures for obtaining court permission and then use the results of that interception in a criminal prosecution against the target of that tap even though that permission was not based on a showing of probable cause as understood by
Katz
and
Keith
.
³⁵

This ruling lessened the force of the standards that the Supreme Court had enunciated in
Katz
and
Keith,
a trend that continued with a statute passed in the immediate wake of the September 11 attacks—the USA PATRIOT Act.
³⁶
That measure provided that the gathering of foreign intelligence had to be merely a significant, as opposed to a primary, purpose of the interception in order for the less demanding FISA procedures to govern. As a practical matter, this enabled the government to avoid the Fourth Amendment warrant requirement as understood by
Katz
and
Keith
whenever it could show a reason to believe that the target of the interception was an agent of a foreign power, that there was no significant likelihood of acquiring the contents of a communication to which an American was a party, and that foreign intelligence would be gathered by the interception. Gathering foreign intelligence could be a significant or a substantial purpose of the tap, and thus would be legitimate under the less demanding FISA procedures, even if the primary purpose of the interception was to gather evidence for a criminal prosecution.

The Terms of the 2008 FISA Amendments

The 2008 amendments preserved the changes to FISA effectuated by the USA PATRIOT Act. The government need only show that the gathering of foreign intelligence is a significant, as opposed to a primary, purpose of the wiretap. The 2008 statute also continued the original FISA requirements for authorizing wiretaps in which the target is not a citizen but is nonetheless a person located in the United States. In these cases, the government must, in addition to the showing of significant purpose, establish a reason for believing that the target is an agent or employee of a foreign power. However, the 2008 statute introduced a further complexity in the FISA structure by establishing, as the Bush administration proposed, a special set of rules to apply when the target of the tap is located outside the United States.

Some of these persons abroad may be Americans or, in the language of the statute, “United States persons,” a category defined to consist of United States citizens and persons lawfully admitted for permanent residence in the United States.
³⁷
With respect to them, the requirements for surveillance are roughly the same as those provided by the original FISA statute as amended by the USA PATRIOT Act. The government must establish that a significant purpose of the tap is to gather foreign intelligence and that the individual is an agent or employee of a foreign power. These requirements apply regardless of whether the interception is effectuated through facilities located in the United States or through facilities located abroad.

However, in the case of non-U.S. persons—in my terms, foreigners—who are located abroad, the 2008 statute radically departs from the original FISA standards. As under the original statute, there is no need to obtain authorization of any kind from a FISA judge when the wiretap does not require access to facilities located in the United States.
³⁸
When, however, the tap aimed
at foreigners abroad requires access to facilities in the United States, permission by a FISA judge is required, but the traditional FISA standard is drastically lowered. Although the government must state that a significant purpose of the tap is to gather foreign intelligence, little more is required. The government need not have reason to suspect that the targets of the tap are agents or employees of a foreign power, only that they are foreigners and that they are located outside the United States.
³⁹

The 2008 statute not only lowers the standards for authorizing wiretaps aimed at specific or individual foreigners abroad, it facilitates the issuance of “blanket” authorizations for taps of such persons, as the original Terrorist Surveillance Program did.
⁴⁰
Even though the entire FISA procedure is secretive, the 2008 statute relieves the government of the need to disclose to a FISA judge the identity of each individual to be targeted. It requires only that the government describe and employ procedures reasonably designed to ensure that its proposed surveillance activity will be limited to foreigners located abroad.
⁴¹
Arguably, this might permit the government to obtain authorization from a FISA judge to tap the telephone calls of an entire group of foreigners abroad (for example, “persons suspected of links with al-Qaeda” or “high-ranking officers of the Pakistani army”).

All applications for warrants, even those required by
Katz
and
Keith,
are considered by a judge without notice to the target. The hope is that a judge, acting on his own, will scrutinize the factual basis of the application. This hope arguably persisted even under the original FISA scheme, though two of its features lessened the likelihood of that hope ever being realized—the judges on the FISA court are handpicked by the chief justice, and they are assured of a degree of anonymity. But the 2008 statute went further: it sought to eliminate the powers of a FISA judge to challenge the factual predicates of the government’s
application for authorization for a wiretap where the target is a foreigner abroad.

In 2004, Congress passed a statute establishing the Office of the Director of National Intelligence to coordinate and oversee the work of all of the intelligence-gathering agencies of the United States.
⁴²
This statute also amended the original FISA statute to require that those applications that had to be jointly authorized by the director of the CIA and the attorney general now had to be authorized by the director of national intelligence and the attorney general.
⁴³
The 2008 FISA Amendments continued this requirement of joint authorization by the attorney general and the director of national intelligence.
⁴⁴
These officials must jointly establish a plan for governing these surveillance activities aimed at foreigners abroad, submit that plan to the FISA judge, and certify that the new FISA requirements for such targets are met.
⁴⁵
In another radical departure from the original FISA scheme, the 2008 statute goes on to provide that the judge must approve the application if the certification “contains all the required elements.”
⁴⁶
There is no room for the judge to scrutinize, as he or she might or should have done in the past, the factual predicates of the government’s FISA application. The 2008 statute also places a strict limit—thirty days—on the time the FISA judge has to consider the application.
⁴⁷

Having minimized the role of the judiciary, the 2008 statute provides for a measure of after-the-fact review of the surveillance activities of the Department of Justice and the various intelligence agencies that might be engaged in wiretapping. This review power was entrusted to a bevy of inspectors general, who on any account are administrative officials, not detached and impartial magistrates. Inspectors general are appointed by the president and are subject to removal by him. The Senate must confirm their appointment and be given thirty days’ notice of their removal.
⁴⁸
They were created by a 1978 statute,
also a response to the disclosures of the Church committee, and are charged with reporting to Congress and the executive on the practices of the administrative agencies to which they are assigned. The 2008 FISA Amendments specifically instructed the inspector general of the Department of Justice and his or her counterpart in each of the intelligence agencies involved in the surveillance to review and report on the extent to which the surveillance targets persons ultimately determined to have been located in the country, and the extent to which the surveillance produces intelligence reports that identify Americans.
⁴⁹

The Conflict with the Fourth Amendment

The constitutional protection of privacy is not absolute. The Fourth Amendment does not altogether deny the government access to the information that it needs to discharge its elemental duty to secure the land. Rather, it seeks to minimize or avoid the dangers inherent in surveillance by restricting the techniques and methods that the government may employ to acquire that information. It places a zone around certain domains and activities of the individual—those endowed with a “reasonable expectation of privacy”
⁵⁰
—and then constructs a barrier to protect this zone. This barrier is reinforced by the understanding that each intrusion not only impairs the individual’s interest in privacy and thus undermines the conditions necessary for human flourishing but may, given the particular circumstances of the intrusion and the reasons for it, threaten a multitude of other interests, including those protected by the constitutional guarantees of free speech, a fair trial, and equal treatment.

The 2008 FISA Amendments are a grant of authority. They allow the government to intercept telephone conversations and thus to interfere with an activity most certainly endowed with a reasonable expectation of privacy. The validity of the statute
turns on the conditions it imposes on the exercise of this authority and whether those conditions are stringent enough to comport with the Fourth Amendment and the barriers it interposes against such intrusions of privacy. Typically, the Fourth Amendment has been used to review criminal convictions, and in that context constitutes a standard to measure, after the fact, the investigatory activity of law enforcement officials. It also has been held to establish a standard to measure prospectively legislative grants of investigative authority and the power of government officials to engage in various forms of surveillance, including wiretapping.
⁵¹

A. The Probable Cause Requirement.
The barrier constructed by
Katz
and
Keith
has two features. It requires court approval prior to the interception and it conditions that approval upon a showing of probable cause. FISA—as originally enacted and as amended—satisfies the first requirement of prior court approval. But it qualifies in important ways the second—the need to show probable cause.
⁵²

The Fourth Amendment does not elaborate on the meaning of probable cause, but, as
Katz
and
Keith
and countless other cases declared, probable cause is, as used in the Fourth Amendment, a technical term linked to criminality. It is, as Justice Ruth Bader Ginsburg recently observed, “a term in the legal argot.”
⁵³
Probable cause does not simply mean reason to believe or suspect that something is the fact, but rather reason to believe or suspect that the person whose calls are being intercepted had committed a crime, is committing a crime, or is about to commit a crime.

The burden of showing probable cause may weigh heavily on the government. The government may sometimes need to wiretap in order to acquire the information that will enable it to identify a criminal or give it reason to believe that an individual is about to commit a crime. The same could be said about
intrusions into the home: they may be needed to establish probable cause. However, under the Fourth Amendment, that information must be secured by means that do not entail intercepting a conversation or intruding into a domain that is endowed with a reasonable expectation of privacy. In
Katz
and again in
Keith,
the Supreme Court stopped short of applying this understanding of probable cause to wiretapping aimed at gathering foreign intelligence and reserved that question for another day—a day that has not yet come.