FISA + EO 12333 + [redacted] procedures = No 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.

Yesterday, I showed that the government claims it doesn’t have a database of incidentally collected data from non-targeted US persons; and then I showed why that claim is not credible. Today, I’ll point to another big loophole in the government’s wiretapping program revealed by the FISCR opinion: the use of three or more different methods of getting around Fourth Amendment requirements of probable cause and particularity.

The opinion describes what it seems to present as abundant protections involved in the wiretapping at issue–noting that these protections are included not just in Protect America Act, but also Executive Order 12333 and certain classified procedures.

Beginning in [redacted] 2007, the government issued directives to the petitioner commanding it to assist in warrantless surveillance [redacted, redacted footnote]. These directives were issued pursuant to certifications that purported to contain all the information required by PAA.

The certifications require certain protections above and beyond those specified by the PAA. For example, they require the AG and the National Security Agency (NSA) to follow the procedures set out under Executive Order 12333 2.5 …, before any surveillance is undertaken. Moreover, affidavits supporting the certifications spell out additional safeguards to be employed in effecting the acquisitions. This last set of classified procedures has not been included in the information transmitted to the petitioner. In essence, as implemented, the certifications permit surveillance conducted to obtain foreign intelligence for national security purposes when those surveillances are directed against foreign powers or agents of foreign powers reasonably believed to be located outside the United States. [my emphasis]

Much later, when the Court is testing the government’s claim that certifications in question qualify as “reasonable,” it again lists these several “safeguards.”

The government rejoins that the PAA, as applied here, constitutes reasonable government action. It emphasizes both the protections spelled out in PAA itself and those mandated under the certifications and directives. This matrix of safeguards comprises at least five components: targeting procedures, minimization procedures, a procedure to ensure that a significant purpose of a surveillance is to obtain foreign intelligence information, procedures incorporated through Executive Order 12333 2.5, and [redacted] procedures [redacted] outlined in an affidavit supporting the certifications. [my emphasis]

Understand–this opinion is not about whether PAA (or, more generally, a Congressionally-sanctioned wiretap program) by itself authorizes under the Fourth Amendment the actions the government required the plaintiff to take. It is about whether PAA + EO 12333 (the Reagan Executive Order laying out our intelligence program, plus the amendments to that EO) + redacted procedures submitted in conjuction with, but not mandated by, PAA fulfill Fourth Amendment requirements. PAA, by itself, does not fulfill Fourth Amendment requirements.

FISCR uses EO 12333 to fulfill probable cause

Now consider why this is important. The opinion describes the role of EO 12333 in authorizing the wiretaps, using it to dismiss the plaintiff’s probable cause concerns.

The procedures incorporated through section 2.5 of Executive Order 12333, made applicable to the surveillances through the certifications and directives, serve to allay the probable cause concern. That section states in relevant part:

The Attorney General hereby is delegated the power to approve the use for intelligence purposes, within the United States or against a United States person abroad, of any technique for which a warrant would be required if undertaken for law enforcement purposes, provided that such techniques shall not be undertaken unless the Attorney General has determined in each case that there is probable cause to believe that the technique is directed against a foreign power or an agent of a foreign power.

[citation omitted, emphasis original, link to EO added]. Thus, in order for the government to act upon the certifications, the AG first had to make a determination that probable cause existed to believe that the targeted person is a foreign power or an agent of a foreign power.

(Click through to read the further description on page 23 of what the AG gets from NSA to make this determination.) This strikes me as critically important. The FISCR is not relying on the following language–the language from PAA–to get to probable cause:

Sec. 105B. (a) Notwithstanding any other law, the Director of National Intelligence and the Attorney General, may for periods of up to one year authorize the acquisition of foreign intelligence information concerning persons reasonably believed to be outside the United States if the Director of National Intelligence and the Attorney General determine, based on the information provided to them, that–

  1. there are reasonable procedures in place for determining that the acquisition of foreign intelligence information under this section concerns persons reasonably believed to be located outside the United States, and such procedures will be subject to review of the Court pursuant to section 105C of this Act;
  2. the acquisition does not constitute electronic surveillance;
  3. the acquisition involves obtaining the foreign intelligence information from or with the assistance of a communications service provider, custodian, or other person (including any officer, employee, agent, or other specified person of such service provider, custodian, or other person) who has access to communications, either as they are transmitted or while they are stored, or equipment that is being or may be used to transmit or store such communications;
  4. a significant purpose of the acquisition is to obtain foreign intelligence information; and
  5. the minimization procedures to be used with respect to such acquisition activity meet the definition of minimization procedures under section 101(h).

This determination shall be in the form of a written certification, under oath, supported as appropriate by affidavit of appropriate officials in the national security field occupying positions appointed by the President, by and with the consent of the Senate, or the Head of any Agency of the Intelligence Community, unless immediate action by the Government is required and time does not permit the preparation of a certification. In such a case, the determination of the Director of National Intelligence and the Attorney General shall be reduced to a certification as soon as possible but in no event more than 72 hours after the determination is made. [my emphasis]

It is relying on this language, from EO 12333.

The Attorney General hereby is delegated the power to approve the use for intelligence purposes, within the United States or against a United States person abroad, of any technique for which a warrant would be required if undertaken for law enforcement purposes, provided that such techniques shall not be undertaken unless the Attorney General has determined in each case that there is probable cause to believe that the technique is directed against a foreign power or an agent of a foreign power.

In other words, probable cause here is not tied to the “reasonable belief” that the surveillance is directed at persons believed to be outside the US. It is not tied to the procedures used to come to that reasonable belief. Rather, probable cause requires solely that the technique is directed against an agent of a foreign power, and probable cause is specifically tied to techniques used within the US or against a US person. The probable cause, here, is tied specifically to actions and persons within the US.

And we know that the AG certification that the surveillance “concerns” people outside the US (mandated by PAA) and the AG determination of “probable cause” (mandated by EO 12333) are different things, because the former remains good for one year, whereas the latter is based on an NSA statement limiting the surveillance to a shorter period of 90 days.

[The AG determination is based on DOD regulations that] also required a statement of the period–not to exceed 90 days–during which the surveillance was thought to be required. [my emphasis]

So, one year for the certification tied to persons located outside the US, 90 days for the determination of probable cause related to agents of a foreign power that may or may not be located inside the US. (I’ll explain why this 90 day limit is important in a later post, but for the moment remember that this opinion, which authorized ongoing wiretaps, was written on August 22, 2008, more than 90 days after PAA expired on February 16, 2008.)

And conveniently, PAA specifically allows for its use with other laws.

FISCR uses redacted procedures to fulfill particularity

But that’s not all. Now we come to the matter of the redacted procedures, which is what the Court uses to dismiss concerns about particularity.

The petitioner’s arguments about particularity and prior judicial review are defeated by the way in which the statute has been applied. When combined with the PAA’s other protections, the [redacted] procedures and the procedures incorporated through the Executive Order are constitutionally sufficient compensation for any encroachments.

The [redacted] procedures [redacted] are delineated in an ex parte appendix filed by the government. They also are described, albeit with greater generality, in the government’s brief. [redacted] Although the PAA itself does not mandate a showing of particularity, see 50 USC 1805b(b), this pre-surveillance procedure strikes us as analogous to and in conformity with the particularity showing contemplated by Sealed Case. [my emphasis]

And if all those redactions in this argument dismissing the need for particularity don’t make you nervous, note there’s an entire paragraph redacted following these two.

Review closely what this passage says. FISCR admits that it has, in Sealed Case, mandated something “analogous to and in conformity with” particularity. It acknowledges here that PAA does not itself mandate particularity at all. Only when PAA is applied in a certain way–with EO 12333 and with these redacted procedures–does the action the government is compelling the plaintiff to do overcome Fourth Amendment prohibitions on unreasonable search and seizure.

It’s worth recalling, at this point, something Mary has pointed out: the FISCR is not here ruling on all activities conducted under PAA. It is only ruling on this particular order. That’s because it can’t rule that PAA itself is constitutional because–by itself–it is admittedly not. The determination of the constitutionality of the actions mandated under PAA can only be made in conjunction with a review of these redacted procedures.

And oh, by the way, the plaintiff doesn’t get to see those procedures, at least not beyond the “greater generality” with which they’re described in the government’s brief.

This last set of classified procedures has not been included in the information transmitted to the petitioner

And if the plaintiff got to see those redacted procedures, it would make all the difference. As Russ Feingold noted,

The decision placed the burden of proof on the company to identify problems related to the implementation of the law, information to which the company did not have access. The court upheld the constitutionality of the PAA, as applied, without the benefit of an effective adversarial process. The court concluded that “[t]he record supports the government. Notwithstanding the parade of horribles trotted out by the petitioner, it has presented no evidence of any actual harm, any egregious risk of error, or any broad potential for abuse in the circumstances of the instant case.” However, the company did not have access to all relevant information, including problems related to the implementation of the PAA. Senator Feingold, who has repeatedly raised concerns about the implementation of the PAA and its successor, the FISA Amendments Act (“FAA”), in classified communications with the Director of National Intelligence and the Attorney General, has stated that the court’s analysis would have been fundamentally altered had the company had access to this information and been able to bring it before the court.

Now, Russ Feingold has read and been briefed on the unredacted opinion and has some idea what’s included in those redacted procedures. And he says that if the plaintiff were given access to those redacted procedures so it could address the sufficiency (or not) of them with regards to particularity, then the Court would have ruled the government’s order unconstitutional.

It’s a neat parlor trick the Bush Administration–with the full complicity of Congress–has pulled off. The FISCR all but admits that PAA, by itself, was unconstitutional. But it has allowed the government to use PAA to compel cooperation from telecoms, and then use AG determination (including, potentially, with regards to Americans claimed to be agents of a foreign power) and these redacted procedures (procedures which the telecom, which is virtually the only entity with standing to object to the orders, may not see, and procedures which are apparently not guided by any law) to get around the probable cause and particularity required by the Fourth Amendment.

The Fourth Amendment still exists, the FISCR maintains, but it exists somewhere you–and even the telecoms now required to spy on you–can’t see.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

  1. AZ Matt says:

    I am not a legal type person but Marcy you make the twists and turns of this understandable so Thank You very much. I am so glad that these disgusting freaks are two days from out of office.

  2. Curious says:

    Sorry this is off-topic —

    Pelosi Open to Prosecution of Bush Administration Officials

    The House speaker suggests to “FOX News Sunday” that the law might compel Democrats to press forth on some prosecutions of Bush administration officials, saying they may not “have a right to ignore” them.

    http://www.foxnews.com/politic…..officials/

    • bobschacht says:

      Pelosi Open to Prosecution of Bush Administration Officials

      The House speaker suggests to “FOX News Sunday” that the law might compel Democrats to press forth on some prosecutions of Bush administration officials, saying they may not “have a right to ignore” them.

      So, they really would like to ignore the law, but they don’t have the right to? Wow! What champions of the rule of law these Democrats are! /s

      The Democratic leadership is disgusting. I just hope they are not reflecting the will of the rank and file. But I’m afraid that they are.

      Bob in HI

  3. AZ Matt says:

    Does anybody out there thing that there will be changes to this by the congress or new admiistration. Will Feingold introduce any legistlation to change this?

    • freepatriot says:

      I dream that emptywheel is the Declassification Fairy, floating thru the whitehouse turning bushco’s illegally classified documents into indictments with a flick of her instadeclassification wand.

      in reality, I call my congresscritters an tell em to read Marcy

      so maybe …

  4. tryggth says:

    What do you make of the “Parting Shot” paragraph? Seems that during oral arguments petitioner discussed a scenario which can occur within the minimization framework and all the court had to say was “trust the government to let you know if such an event occurs”. Heh. Given that petitioner isn’t even allowed to see the procedures, what are the odds that is ever going to happen?

    It seems the data has all gone to a contractor who holds the data “unanalyed” until AG, DoD prompting (CIFA/TALON?) requests a network analysis of the most popular pizza take out places for an individual.

    Notice that the dates in the opinion have been redacted. Methinks some of them fell within the first two weeks of Dec. 2005.

    • emptywheel says:

      No, the dates will all be 2007 and 2008–they are clearly after PAA was passed in 2007.

      I think one of the points of hiding them is to hide that discrepancy–between the PAA order and the 12333 order. I think, in turn, that’s to hide what I’m talking about here–that the collection can only be done if the AG is willing to say it’s all about foreign targets, but that the actual probable cause determination may well include domestic targets. It may well be that the telecom objected to a targeting done in February-March 2008, with what appeared to be a new order, but taht because of the structure they’ve set up here, they AG got to continue picking new actual targets (the 90 day determination) provided that the larger collection of information was still based on a pre-February 16, 2008 order.

  5. pdaly says:

    Great post, emptywheel.

    I tried last night to read through to court’s decision and got hopelessly lost in the tangle of citations and seeming repetition of catch phrases. Glad you were able to strap on your crampons and wield your trusty ice axe to scale this monstrosity. And thanks for throwing a rope down to the rest of us.

    Some lingering questions:

    Is there a reason the company bringing this suit has remained anonymous? (its choice? or the government’s?).

    What does “reasonably believed to be outside the US” mean in practice?

    Yeah, I think I read that he was going to Paris next week, and I think it’s been a week. Let’s tap him.

    Once that “reasonably believed” outside the US determination has been made, how long until that reasonable belief has to be revisited?

    • emptywheel says:

      This is–as we were discussing in the last thread–almost certainly a case brought by an email provider. I’ll explain why in a later post. But with that in mind, try to figure out what happens when teh govt comes to say–Google and says “you need to open up your email servers so we can look for terrorists.”

      Remember, the particularity is not tied at all to the PAA order, so the govt can come and ask for everything based on something as flimsy as “Ramzi bin al-Shibh’s cousin has a Gmail address.” Well, since Ramzi bin al-Shibh’s cousin is hidden away in (say) Pakistan, the govt can fairly say they reasonably believe the data was located outside the US. It’s possible said cousin has snuck into the US, but they don’t think he has.

      So there you’ve got all of Gmail’s emails. And only once you get that do you do the data mining (which I’m 99% sure is what the redacted procedures are about) to get teh actual emails that you’re going to read.

      With each step separate, they’ve got enormous leeway to do things with the email servers once they get them. And it’s pretty clear from this structure that the email provider has no fucking clue–they’re not allowed to know–how the govt is using the data.

      • pdaly says:

        Well if it was an email provider concerned for its customers’ 4th amendment rights (and its bottom line), it has an easy excuse to comply with the government’s order.

        Maybe they too believe this is governmental overreach in the form of unconstitutional search and seizure.
        Any news of arrests of CEOs of email providers? Here’s hoping.

  6. pdaly says:

    I’m reminded of the 2006 news that the government needed internet users’ search terms from all the internet providers in order for the government to form an antipornography law. Seemed like a convenient work around the 4th amendment at the time to get at internet providers’ user data.

    Google, unlike AOL, Yahoo! and Microsoft, chose to fight the government order in court.
    I don’t remember the final outcome, but I assume even if the government won, it was not enough.

    Maybe the 2007 laws are the new work around?

  7. JohnLopresti says:

    Blog of LegalTimes pushed an email to me recently linking to a post there two days ago, in which Turley is paraphrased observing FISC is designed to be a nonAdversarial forum, as if a ray of hope that the current fracturing of the 4th is less than the authority a decision at Scotus would carry. I understood from a distant thread T, too, has a history in a public issue which I avoided in a prior presidency. One of the facets the BLT blurb mentions is a juxtapositioning of PAA with the neoFISC 2008law congress passed; the article entirely omits drawing comparisons with eo12333, which reads like legislation imperially penned by Potus.

  8. JohnLopresti says:

    @15, way I recall, G supplied 1,000,000 searchstrings but won in court in the sub-issue of govt request to include machine identification of who typed the searchstring. Perhaps the issue may be nonsharing of physical server topology for G, which seems to invoke the expert witness in Hepting. Digital changes everything since 12333. G’s site was fairly silent but I think eff has a page for both matters.

  9. shawnfassett says:

    From James Bamford’s ‘The Shadow Factory’ (p. 236)

    Closer to home, America’s two major telecom companies, AT&T and Verizon, have outsourced the bugging of their entire networks – carrying billions of American communications every day – to two mysterious companies with very troubling foreign connections. In AT&T’s secret room in San Francisco, a mirror image of all data entering the building is filtered through surveillance equipment supplied and maintained by Narus. Verizon, which controls most of the rest of the country’s domestic and international communication networks, chose a different company. According to knowledgable sources, that company is Verint.

  10. LabDancer says:

    Ms E Wheel:

    Can I just say at the outset that, in general outlines & as well in several particulars, I agree with a lot of what you’ve posted here, and moreover it’s very good stuff – indeed, given the existence of those specialized law & security blogs, I haven’t seen any of those I normally check on go through the problems with anything like the intensity in your approach

    [bearing in mind that Glenn Greenwald, who certainly gets all this & indeed specifically recognizes your efforts is writing to a different audience – or at least writing with different kind of demand on his audience – & moreover professor Marty Lederman has not been posting for weeks, unsquelched rumor having it that he’s being vetted for a return to the OLC, presumably with more authority than he had before – tho assuming the new chief is the woman nominated, I’m sure that’s gravy].

    I have a few thoughts – well, quite a few; but I’ve responded with some on previous threads, and no doubt there’ll be more opportunities – so I’ll keep these as much as possible to your analysis here.

    [1] I’m going to assume that the counsel acting for the Petitioner were not, despite the rude treatment received from the court, objectively naive & stupid, and did not attempt anything like the general criticism of professor Jon Turley [to the effect that even the FISA 1978 was/is unconstitutional – which is far from stupid of course, but goes into a larger set of issues than I think you intended to deal with here].

    Supporting that take is the court’s opinion shows the Petitioner got stuck with having to attack the PAA, as it really wanted to challenge – well, let’s just say your own response @ #8 is a very strong candidate for what it wanted to challenge.

    [2] Staying with that last point, whether your surmise is bang on or close enough [it’s at least the latter], the Petitioner would have chosen not to challenge the FAA by virtue of whatever it was the NSA was saying the order meant not appearing to fit what those in Congress [encompassing both chambers] had intended when they voted for it.

    How could they tell? Well, not just from those on the Dem side who knew what they were talking about [which eliminates Jello], but also from at least some on both sides [Rs & Blue Dogs] who DIDN’T know what they were talking about, and by combination of the intention to adhere to talking points and the inability to avoid talking out their hats made claims which strictly couldn’t stand up to what the DoJ lawyers were saying to the court the FAA stood for.

    [3] Nonetheless, assuming [as you argue in a later thread, and I agree with you] the Petitioner is an email provider, and Google, or at least one not previously involved with the government’s ongoing illegal partnership with the telcos, there is suggested some [quite understandable, and in my view quite foregive-able] naivete to the submissions on behalf of the Petitioner, both implied in & to some extent explaining the court’s rude, sarcastic, dismissive language in reference to Petitioner’s counsel.

    And it strikes me that at least part of that, and maybe most of the cause the Court’s tone, might have to do with the Petitioner’s counsel challenging some ‘accepted’ thinking – which, as we know from Galileo & Darwin & el Barradei, tends to enflame the passions of established mindsets – – & interests [More on the latter below].

    Experienced, even new court attorneys are only too familiar with this phenomenon: sometimes the court doesn’t get it, & that’s bad enough – but sometimes the court REFUSES TO ADDRESS IT, which goes over on impassioned, no matter how well-prepared, as a bucket of ice-water.

    [4] The point could have [may have] been made that, while on its surface the PAA isn’t unconstitutional, putting the rationale for the order behind affidavit is one things, but using that vehicle, superficially designed to protect sources etc as a vehicle to hide as well the mechanics of interception & minimization is to pervert the process, and turn the exercise further away from the already-compromised checks envisioned in the FISA 1978 and the PAA 2007, but particularly the latter given the former never even envisioned the possibility of either the position the Petitioner was being placed in or the advocacy being engaged in by it.

    A few threads back I did a riff on a dump truck that serves to express this type of concern in somewhat oversimplied fashion – – maybe oversimplied.

    [5] This isn’t even the SECOND time I’ve expressed this, but there seems to be a glossing over of the word “unreasonable” in the 4th Amendment – & I don’t mean by you; but it’s important to reflect on the word’s meaning in the jurisprudence. I keep getting the sense, just as I have from time to time when at the defense table this comes up [I never have argued inconsistently on this.], that the word qualifies, or ONLY qualifies, the means by which the government proposes to undertake the search & seizure, and some balancing act between the “interest” of the “people” versus the interests of the affected individuals.

    The word also, critically, indicates ‘rationality’, and as well, even more critically for these purposes, emphasizes [by initiating] the concept of “probable cause”. Put another way: the physical separation of the two in the phrasing of the Amendment does not operate to segregate them such that they operate or are to be interpreted independently: cause, to qualify as probable, must be reasonable in the sense of rationally flowing from a set of facts put before the court that are purported to be true.

    Somehow – & it’s not just the passage of the FISA in 1978 that has brought this about, but it’s a big influence – the courts in general, and PARTICULARLY the FISA courts [as implied in this latest opinion, and the rather astounding batting record the government has put up in appearances before it, ex parte aside], have been seduced, or seduced themselves, or some of both, into this idea that ‘reasonableness’ is satisfied entirely by a logical connection between the interest sought to be advanced: intercepting the calls of X for national security reasons on the one hand – & the means by which it is proposed to advance them: by intercepting the calls of X, on the other.

    Not a lot of space for discussion there.

    [6] For a while I thought it might be possible the court’s snarkiness was owing to it’s being ticked off by the government’s having run around the court for years – – but on reflection I realize that’s very unlikely: the membership of the court is full of folks with pre-existing contacts in the natsec intell community, and over their years on the court, those would have been cemented; and those not already in that deep before would also develop sources – so the idea of this stuff coming to the FISC as a shock, or even much of a surprise [as compared to broader membership the federal District Court], is really a stretch.

    The first thing I did when I first got clearance decades ago was arrange for guided tours of as many of the facilities and toys involved in government wiretapping as I was able to find out about, & in the throes of that I was told in passing the name of more than one judge who’d expressed a comparable interest & had his or her own tour – not all, but enough.

    From then on, it was no surprise to receive visits and calls for coffee and advice on particular problems & novel ideas & new toys. The judges didn’t get those [though it seemed to me some had to have – albeit in less specific terms or less, or less-obviously focussed ways], but, in the course of a number ’special motions’, brighter, more interested judges routinely showed a high technical understanding of what was in the materials, and sometimes beyond that.

    The same reflection cements my view that the court here was expressing the sort of pain many feel on being jarred from complacency.