Saturday, January 27, 2007

Bush and FISA: What is Going On Here?

Two weeks before the Court of Appeals was scheduled to hear argument on the Bush Administration's warrantless wiretaps, Attorney General Alberto Gonzales issued a cryptic letter that the Administration had reached a compromise with the FISA court and would henceforth be acting with the Court's approval:

[A] Judge of the Foreign Intelligence Surveillance Court issued orders authorizing the Government to target for collection international communications into or out of the United States where there is probable cause to believe that one of the communicants is a member or agent of al Qaeda or an associated terrorist organization. As a result of these orders, any electronic surveillance that was occurring as part of the Terrorist Surveillance Program will now be conducted subject to the approval of the Foreign Intelligence Surveillance Court.

In the spring of 2005 -- well before the first press account disclosing the existence of the Terrorist Surveillance Program -- the Administration began exploring options for seeing such FISA Court approval. Any court authorization had to ensure that the Intelligence Communicty would have the speed and agility necessary to protect the Nation for al Qaeda -- the very speed and agility that was offered by the Terrorist Surveillance Program. These orders are innovative, they are complex, and it took considerable time and work for the Government to develop the approach that was proposed to the Court and for the Judge to consider and approve these orders.

It is, perhaps, a little late for me to speculate on what this means, but better late than never. The most obvious conclusion is that the Administration istrying to evade hearing on the legality of its Terrorist Surveillance Program (TSP) of warrantless wiretaps. But beyond that, what have the Administration and the Court agreed to, and should we accept it?

Complicating the question of what the Court agreed to is the question of what the Administration was doing without court approval. Attorney General Alberto Gonzales officially announced that surveillance was limited to "a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda." Other Administration supporters have suggested that the program included only surveillance of telephone numbers captured from Al-Qaeda -- suspicious, but short of the legal standard of probable cause. However, the New York Times and the Washington Post have reported a much more extensive, data mining program. According to the Post's more detailed account:

Surveillance takes place in several stages, officials said, the earliest by machine. Computer-controlled systems collect and sift basic information about hundreds of thousands of faxes, e-mails and telephone calls into and out of the United States before selecting the ones for scrutiny by human eyes and ears.

Successive stages of filtering grow more intrusive as artificial intelligence systems rank voice and data traffic in order of likeliest interest to human analysts. But intelligence officers, who test the computer judgments by listening initially to brief fragments of conversation, "wash out" most of the leads within days or weeks.

The Post reports that approximately 5,000 calls have been suspicious enough to be listened to, and these have yielded about 10 calls a year suspicious enough to seek a warrant.

Whatever the scope of the TSP, has a FISA judge approved the entire program, or only agreed to issue individual warrants? On first reading that the Administration would have the court's approval for "any electronic surveillance that was occurring as part of the Terrorist Surveillance Program, Law Professor Orin Kerr, an expert in surveillance law, speculated that the judge had given a single warrant approving the entire program. He commented that, although such a warrant would be illegal, it would also be secret and unappeallable and therefore almost impossible to stop.

After reading the Department of Justice briefing, however, Professor Kerr changed his mind. Although the official maintained the Administration's usual vagueness, he did reveal that:

[T]hese orders are not some sort of advisory opinion ruling on the program as a whole. These are orders that comply with the terms and requirements of the FISA statute, just like other orders issued by the FISA court.

I will say, however, that the orders we're talking about here are not some cookie cutter order where you can just take a book down off the shelf with a model application and slap it together and file it with the court.

These orders are complex. It took a long time to work on them. People have been working very hard on this for almost two years actually, and it has just now been approved a week ago by the judge of the FISA court.

Professor Kerr interpreted this to mean that the FISA court will issue "anticipatory warrants," i.e. warrants issued in advance that would take effect with some triggering condition. A classic anticipatory warrant is one allowing search of the suspect's house whenever a package, believed to contain contraband, arrives. An anticipatory wiretap warrant would authorize a wiretap when a certain condition is met.

But the question remains, does an "anticipatory" wiretap warrant mean the court will promise to grant an individual warrant if certain conditions are met? Or does it issue a general warrant pre-approving surveillance in any such case? Different commentators have weighed in with various guesses. Persons outside the United States may be wiretapped without a warrant, and such wiretaps may end up overhearing calls into the US. One suggestion is that the FISA court has agreed to allow such incidental surveillance as evidence for issuing warrants to allow wiretapping in the United States. A similar speculation is that any US resident receiving a certain number of suspect calls, even if all appear innocent, may be subject to surveillance. FISA allows emergency surveillance for up to 72 hours before a warrant is obtained. However, if the judge refuses the warrant, all conversations recorded must be destroyed and the target must be notified. One observer believes that anticipatory warrants are a way of avoiding this difficulty. Another opinion is that the goverment is seeking anticipatory warrants because 72 hours is not enough time to prepare the necessary paperwork. Professor Kerr has interpreted later accounts that the program is a "hybrid," allowing both individual and group warrants, as further evidence that the program is "anticipatory." "In some cases, the trigger of the anticipatory warrant will be general, involving eavesdropping on a broadly defined group." Another suggetion [can't find the link] is that the court has agreed to a more lax standard for determining probable cause to issue a warrant in exchange for more stringent "minimization procedures," i.e., guarantees that government will stop listening if it is intruding on an innocent conversation, or destroy any recordings or transcripts of conversations by non-suspects.

So, what is my view on all this? I will not even venture an opinion on the nature of the deal the Administration and the court have struck. But I do have opinions as to what would be acceptable. Programatic warrants would emphatically not. FISA requires individual warrants, and any program approved must be based on individual warrants. "Group warrants" of the type Professor Kerr postulates are also not acceptable. It seems reasonable to have procedures in place for identifying new, suspicious groups. But FISA would still require a warrant establishing probable cause that any particular individual target is a member of the targeted group. I would not object to an agreement that certain conditions will automatically qualify as "probable cause" to issue an individual warrant provided that the conditions are reasonable (a very subjective word, I know) and there is regular review to ensure if the conditions really are (objectively) reasonable. I would not necessarily object to laxer standards of probable cause in exchange for stricter minimization procedures (again subject to reevaluation). I agree that the Administration can and legitimatel should conceal what exactly the new standards of probable cause are. But should reveal the broader contours of the agreement, such as whether individual warrants are required, how often the standards are reviewed, and at least some general outline of the deal. Finally, if 72 hours is not enough to complete the necessary paperwork, the Administration should explain the problem to Congress and request a longer grace period.

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