What Happened to the FISC Appeal?
Both the WaPo and the NYT have stories today explaining how the crisis in the warrantless wiretap program got so bad that Congress got punked into passing a shitty bill. The story is simple, on its face. The FISC rejected a government subpoena in March, another in May, and those two rulings resulted in the government losing the ability to wiretap a great deal of foreign communication. Voila! The President gets to tell Congress it can’t take vacation.
But something’s missing from this process: the appeals process.
Like most legal decisions, FISA allows for a review process. If the FISC rejects a subpoena, the government can appeal that decision to the Foreign Intelligence Surveillance Review Court (FISRC). And if they uphold the rejection, the government can appeal to SCOTUS. Here’s how it works:
If [FISC] judge so designated denies an application for an orderauthorizing electronic surveillance under this chapter, such judgeshall provide immediately for the record a written statement of eachreason of his decision and, on motion of the United States, the recordshall be transmitted, under seal, to the court of review established insubsection (b) of this section.
[snip]
If [FISCR] determines that the application was properly denied, thecourt shall immediately provide for the record a written statement ofeach reason for its decision and, on petition of the United States fora writ of certiorari, the record shall be transmitted under seal to theSupreme Court, which shall have jurisdiction to review such decision.
But we get no details of such an appeal in today’s stories. So what happened? Did the Administration appeal these rejections on up to Roberts and Scalia and Alito? And if so, did a very conservative SCOTUS rule that the Administration was–and has been–violating the law? Or did they choose not to appeal, and instead create the kind of crisis that results in shitty legislation?
In either case, they seem to have gamed the process of court review, for the future. Here’s how the amendment describes the review process if the courts decide the Administration hasn’t provided adequate safeguards for American citizens’ privacy:
Any acquisitions affected by the order issued under subsection (c) of this section may continue during the pendency of any appeal, the period during which a petition for writ of certiorari may be pending, and any review by the Supreme Court of the United States.’’.
That is, if, in the future a court tells the Administration they’re not fulfilling the intent of the law, the Administration gets to keep up what they’ve been doing until Roberts and Scalia tell them to stop.
I also find it rather suspicious that we are finding out in leaks (from top administration officials?) to WAPO and the NYT just what the FISA court objected to. Of course, the judges on the court cannot come out and say what it was so we are left with the administrations leaks.
Why is it that I just don’t find them all that credible? Hmmmm.
dots
Well, keep in mind the autohrs, though: Risen, Lichtblau, and Mazzetti at the NYT, and Joby Warrick and Pincus in the WaPo. That’s a great deal of credibility among journalists. And Risen and Pincus certainly will hear from insiders in the intelligence community if what they got today is BS.
It’s not like a Gordon-Miller article, at least.
You are probably right EW, on the authors credibility. I’ve just become highly allergic to the mention of leaks ever since Scooter Libby et. al.
One other thing I noticed from the WAPO article was the fact that the court suddenly found that the NSA could not monitor even foreign communications if they were going through US fiber optic cables or switches. These things have been around for years at least. I find it suspicious that the court suddenly finds that this is now illegal almost as if it was trying to send a message to Congress to get busy and look into the NSA wiretapping business.
Of course, it did absolutely no good as Congress just punted and gave the Bush administration a horribly written bill that gives it carte blanche to do what ever it wants and pretty much neuters the FISA court. If the court was sending out an SOS to Congress, I don’t think this was the response it had in mind.
All these revelations about the FISC judgments and the background to the FISA amendment saga actually makes me even more outraged at the Dems Congressional leadership.
I just can’t buy they were punked by Cheney and McConnell. Warantless spying on Americans has been a burning issue for some years and the Dems leadership know about all the issues. It was a campaign issue last year and came up big time in Harman’s primary. There’s some specific reasons they passed the amendment with no real debate and its not that they â€caved†in to the weak on terror meme. That’s their excuse – I am convinced they wanted warantless spying on Americans as much as Cheney because if they really objected they could have very easily prevented this amendement or made the amendement reasonable. As it stands now they have provided Cheney carte blanche with zero oversight or procedural checks & balances. Why? Are the Dems congressional leadership and presidential contenders actually â€punking†us and we are the gullible crew???
You can sense the reporters’ frustrations in how to report that unknown judges on unknown courts have issued secret rulings on unknown dates.
But the Post says â€in March, a judge on a special court†and â€In May, a judge on the same courtâ€: this seems like the review court, not the Supreme Court.
Garrett
The implication is that it is FISC, not FISCR and certainly not SCOTUS (it wouldn’t be SCOTUS in any case, I think, because that review is as a Court, not as an individual judge). It could be two adverse FISCR rulings, but there’s nothing to indicate that.
The administration knew, when it brought the TSP (or a surveillance program resembling the TSP), that the surveillance program and the FISA statute had a particular point of friction. Note the date below, the year being 2006.
A quick diversion, then back to the subject. Mr. Dietz is helping perpetuate the erroneous equivalence between the â€probable cause†of FISA (that being probable cause to think the surveillance comprises foreign intelligence information) and â€probable cause†within fourth amendment protection. The two are very different, and indeed, it was the â€wall†between them that has been the subject of some heated discourse.
On the subject of the FISA court ruling as it did, the administration expected that result. The reason it didn’t appeal is that it likely wanted that result, and too, that it thought the ruling was correct as a matter of law.
In the past, when the administration defended the TSP, it did not do so on the basis of statutory construction of FISA alone. It used a FISA plus AUMF argument, and in the alternative, inherent power of the president to conduct foreign intelligence gathering.
The administration never argued that the TSP (as it defined it) would fit within the framework of FISA.
Understanding the administration’s definition of the TSP shows that resolving the â€foreign-to-foreign†dispute does not provide the latitude necessary to conduct the described surveillance without a warrant.
â€The program is carefully administered, and only targets international phone calls coming into or out of the United States where one of the parties on the call is a suspected Al Qaeda or affiliated terrorist.†Aug 17, 2006
â€The NSA’s terrorist surveillance program is targeted at al Qaeda communications coming into or going out of the United States.†January 22, 2006
â€the terrorist surveillance program described by the President is focused solely on international communications where professional intelligence experts have reason to believe that at least one party is a member or agent of al Qaeda or an affiliated terrorist group.†January 25, 2006
â€So to prevent another attack, I authorized the National Security Agency — consistent with the Constitution and laws — to intercept international communications in which one party has known links to al Qaeda and related terrorist groups.†May 13, 2006
Notice that the al Qaeda person may be in the US? (perhaps unknown to be an al Qaeda agent, i.e., â€not targetedâ€). The administration aims to acquire the communications it described, without use of a FISA warrant. While it might get a warrant, it does not want the burden of obtaining a warrant in order to conduct the surveillance program.
FISA’s section 1801(f)(2) and 1802 were construed, properly, to NOT admit the surveillance described in the administration’s own words. The TSP and FISA were, until â€electronic surveillance†was redefined, incompatible.
The statutory language of 1801(f)(2) and my paraphrase of it (and the other aspects of the definition of â€electronic surveillance,†then I’ll point out that what passed recently, S.1927, has been before Congress (not taken up, but there, and debated at least as much as S.1927 was) in 2006.
In the shorthand paraphrase below, REP is shorthand for â€reasonable expectation of privacy and a warrant would be required for law enforcement purposes.â€
(f)(1) wire or radio communication, sent or received by known, targeted US person with REP located in US
(f)(2) wire communication to or from any (targeted or not) person with REP located in the US where acquisition occurs in the US
(f)(3) radio communication of any (targeted or not) person with REP, where all parties in radio contact are located in US
(f)(4) installation of a surveillance device [think â€bugâ€] in the US to acquire communications ** other than radio or wire ** where a person has REP (e.g, spoken word, sign language — maybe mail or courier, but would have to check postal statutes)
To test the effect of S.1927 on these definitions, append to each of those four, â€unless the surveillance is directed at a person reasonably believed to be located outside of the United States.†The result of that appending is nonsense for (f)(3); I can’t imagine how it would play for (f)(4); and it renders the material in (f)(1) and (f)(2) moot. If the surveillance is directed at a person reasonably believed to be outside the US, it is NOT â€electronic surveillance†for purposes of construing the FISA statute. [and 18 USC 2511(2)(f) â€exclusive means†as well]
—===—
As for the FISA modernization being â€old hat,†see H.R.5825, S.2453, and S.3931 in the second session of the 109th Congress.
Discussion of H.R.5825 and S.3931
Additional measures in H.R.5825
More detail, mostly useful as a curiosity, but also illustrates that the administration’s plan to redefine â€electronic surveillance†has been around for well over a year. It didn’t come out for the first time in April of this year.
The administration-backed FISA modernization bills in the 109th Congress also redefined â€electronic surveillance,†but used different words. As to the TSP (but not necessarily to other forms of surveillance) my first reaction is that either redefinition has the same substantive effect.
As between H.R.5825 and S.3931, the *only* difference in the statutory recitation is that the House version does not have the *THE* indicated below.
cboldt – I actually tried leaving a question for you at your place late last night re: availability of FISA rulings to Intel Committee members. By chance did you see it?
cboldt,
The other big changes here are deliberately defining surveillance so that it does NOT include metadata acquisition and allowing â€unintentional†acquisition. I believe both of these are intended to legalize a spying regime that included massive data collection on strictly domestic communications.
– I actually tried leaving a question for you at your place late last night re: availability of FISA rulings to Intel Committee members. By chance did you see it? –
Not until your mention just now. I’ve been posting mostly at Volokh and Balkinize on the subject.
I believe that FISA Court rulings are under seal, to be released only with clearance from the executive. But I confess to having not researched that specific question.
Some required reporting to Congress is stated in the FISA statute, a Section 1807 report is raw numbers of applications and orders (those reports are hosted at FAS).
The reporting of physical search events stated at 1826 contains a little more detail.
Pen register reporting is described in section 1846, and like 1807, comprises raw numbers only.
Reporting on searches that involve the acquisition of tangible items is at section 1862, and is just numbers of such applications and orders.
Finally, section 1871 describes a semiannual report of the AG, and includes an obligation to report …
I think it’s abundantly clear from the public reports that FISA and TSP were incompatible. It is not possible to conduct the TSP as described and admitted by the administration, within the FISA framework (unless one buys the lame â€AUMF is the ’other statute’†argument).
cboldt – Thanks. That is more detailed but very consistent with what I was seeing and concluding. And it yields the exact issue I was starting to form last night and that I see, from appearances, that EW is chewing on. The Administration has known all along that what they were doing was inconsistent with both FISA and Constitutional law. You have pointed this out as well in your discussions of the two relative probable cause standards and a point some time back to some other commenter about the difference between being unconstitutional and being illegal. As you said then, unconstitutional does not necessarily beget illegal; but it is increasingly clear for several reasons that the Administration’s conduct crosses both thresholds.
– As you said then, unconstitutional does not necessarily beget illegal –
In the context of the NSA surveillance activities, I’ve mostly (I think always, just hedging a bit) made the reverse point. Activity that is outside the statutory FISA/18 USC 2511 framework isn’t necessarily unconstitutional. In fact, I’m sure there is activity (such as the foreign-to-foreign acquisitions) that are clearly constitutional, yet outside the FISA framework.
I think the â€President Bush broke the law,†without more, is a weak complaint.
I haven’t formed an opinion as to whether or not the surveillance passes constitutional muster, because I don’t have a specific fact-pattern to work from. I can speculate details of surveillance regimes that are easily â€reasonable,†and others that are clearly â€not reasonable.â€
But I think the real meat of this debate lies in a place other than the definition of â€electronic surveillance.†It’s in the construction of â€foreign intelligence information†and the ability (or not) to import that material into a civilian or military court with a specific defendant on the line.
– The Administration has known all along that what they were doing was inconsistent with both FISA and Constitutional law –
Consistent with knowing the TSP was outside the warrantless regime of FISA, the administration never argued that the warrantless TSP was authorized within the FISA framework. It would lose that argument on several grounds, one of which is that warrantless surveillance CANNOT be conducted against a terrorist as defined in 1801(a)(4)! I’ve wondered why Congress did that in the first place, but it’s there, plain as day, in the statutory language.
The con law inquiry is slightly different. â€Ever so slightly†as we like to say.
I didn’t go back and look at the specific order of your prior analysis, whatever it was, that was not my greater point in the last comment. Pretty sure you know that…. I am very quickly forming the conclusion you are hesitating on re; constitutionality. In fact, pretty much there. Indeed, I postulate that the absence â€of a specific fact pattern†you desire is but another manifestation of the continual shell game they have been playing. They are in way deep and it is not pretty. I need to do a few things and look over my email and ugh, some real work for a bit, else i would elaborate in better detail. You have every bit the grasp, if not far better, than I do anyway….
– The other big changes here are deliberately defining surveillance so that it does NOT include metadata acquisition and allowing â€unintentional†acquisition. –
If, by â€metadata†you mean to get into the â€call logging†(without obtaining the contents) activity, S.1927 has no impact that I can see.
I haven’t yet researched the statutes that play in that area, but unless the contents of the communication are acquired, the activity isn’t labeled (in the law) surveillance. It’s â€pen register†and â€trap and trace†information.
As for the â€unintentional†acquisition of contents of US person when surveillance is directed at a person not in the US, I’m a bit more skeptical. Meaning, I think the snooper might claim it was unintentional, even though it wasn’t.
With S.1927 being passed, I’d say no person located in the US can have a reasonable expectation of privacy in a wire communication with a person who is not in the US. The law permits surveillance of those communications.
– I postulate that the absence â€of a specific fact pattern†you desire is but another manifestation of the continual shell game they have been playing. –
Yeah, it is the â€shell game.†It’s the surveillance conducted in secret with no oversight, and the withholding of information to facilitate an independent confirmation of the reasonableness of the surveillance.
And almost certainly, if there IS clearly unconstitutional surveillance being undertaken, THAT specific surveillance will not be revealed to a place where it’s constitutionality can be tested, either conclusively by the court system, or academically.
And many people do and will conclude, based mostly on absence of evidence (or willful withholding of evidence), that there is unconstitutional activity.
But while I can easily imagine an unconstitutional use of surveillance, I can also imagine a warrantless surveillance regime that does NOT run afoul of the current state of fourth amendment jurisprudence, where secrecy is prudent.
I mostly desire more facts as a matter of curiosity. I assume big brother is alive and well, and that I have very little, if any, personal privacy as against the government.
If that makes me ignorant, racist and sexist, so be it.
Heh. Now don’t YOU start that again. Fly by for a second here on some thing I meant to say in my comment left last night. a few days ago, you left a comment giving the report of an AUSA formally pleading in the new FISA in an ongoing case (NDCA I think). I replied that it was interestingly aggressive for the Govt to try to take advantage of it so fast. I have thought about it a little and have had the curious thought that maybe the AUSA did so not to take advantage of the situation in the manner I was alleging, but rather as a bit of a rogue move to get a quick Federal forum to review and put the kabosh on the odious new law; knowing that opportunities to get it in front of a court will be damn hard to come by otherwise in light of the six month sunset. Simply put, I wonder whether it was a move against the Administration instead of for it? I’ll check back later if anybody has any thoughts on this.
EW,
I agree with you and cboldt that the two rulings were probably both from individual FISC judges. It’s possible the second one was an appeal ruling from the Court of Review, but I doubt it. It seems that the administration’s strategy was to intimidate individual FISC judges into signing off on basket warrants. The first judge (and perhaps the second one too) appear to have signed off on this approach under the condition that the administration come back to the court periodically to renew the warrants. Since these procedings are ex parte, the first rulings were not appealed (despite being almost surely erroneous). But eventually, the administration drew a FISC judge with some balls, who refused to sign off. They then either appealed this ruling, or waited a while and tried another judge (who also refused to sign off). Either having lost the appeal or knowing that it would be pointless, they then sought to change the law.
bmaz
Are you talking about teh CCR hearing on Thursday? It was an interesting hearing (I’m hoping to get the transcripts)–because at the same time that BushCo was pleading the suit was no longer viable bc of the new law (even though it’s only a 6 month law), CCR was pleading that the new law clearly violated the 4th Amendment and on that basis the court had MORE interest in review.
Then again, BushCo did something similar in January when they used the recent move of the â€TSP†program under FISA as an excuse to say that 6th Circuit should dismiss hte ACLU case. As we saw then, the Appeals court basically punted without touching that issue.
AL
Yup, that’s precisely what I think happened.
And as cboldt suggested, the purposely avoided escalating to a place where SCOTUS might be able to review the underlying issues.
EW – Yes, I think we are referring to the same matter. Having gone back and looked at the notice filed by the Govt., I see that it was AAG Keisler pleading the new argument, so I doubt it was likely a move of a â€good citizen of the Constitution†as I was pondering above; however, it may yet turn out to be one of their to cute by a half moves that works in our favor. If I was them , I am not sure I would be rushing to put the new baby in front of a Court, especially not in the 9th Circuit, for inspection. The Administration has a lot of nasty little fires burning in a lot of tangential directions, and they are getting desperate and sloppy trying to cover.
Though the Appeals Court hearing before the 9th is on Wednesday. So they neither side has much chance to make this an issue there yet.
If the 9th wants to make it an issue though, they can do so. Remember them asking for additional briefing on the issue of release of the Konogiannis transcripts? They can also remand to district for further fleshing out. Now, when they remand for more in this vein, the Administration usually tries to take their ball and go home or elsewhere instead of facing scrutiny, but that playbook is getting old and the courts are on to it. We shall see; it will indeed be interesting. The 9th is the worst CCA in the country for them to be playing; do you know who the panel is?
cboldt,
My point is that the law seems to have been changed to say that if, in the course of acquiring metadata, the government just happens to also get the contents, well, that wasn’t intentional surveillance. Do you think I’m reading too much in to this? As for the metadata, it seems to me to be a big change to go from a regime where the government had identify a particular device (phone, computer, whatever) and ask for the â€pen register†to a regime where the government is allowed to collect the same metadata on everybody in the country.
WO – Correct on both accounts as far as I can tell. The worse part is that Gonzales is the gatekeeper for making the determinations of intent and reasonableness. As if his reputation alone was not enough to convince anyone that he will never, ever, find a problem with the Government’s conduct; we already have a track record on him. The FBI has submitted a virtual plethora of notifications of abuses of the NS Letter process; yet AGSquared testifies to Congress that he is aware of no problems whatsoever. But not to worry fellow citizen, Congress plans to â€revisit†the matter after their vacation. I wonder what inalienable right they will forfeit in that process…..
Look at the filings where the government is resisting exposing the general order authorizing the TSP, or the existence of obtaining call logs from telcos. I see the arguments there as saying â€disclosing the practice of collecting call logs amounts to disclosing a classified procedure or method.†Huh? I get a call log with my phone bill. What’s the classified procedure relating to sending all call logs to the government? IOW, the argument is lame as all get out, as a matter of physics and logic.
I imagine (pure speculation) the same sort of argument being used to convince a FISA judge, in January, to get around the 1801(f)(2) definition of â€electronic surveillance,†where the data interception was in fact happening at a building in the US.
Here are some examples to circumvent 1801(f)(2), made up from whole cloth, the product of my fertile imagination.
The government arranges to have at least part of the interception occur at a location that is legally not in the US, e.g., embassy building of a foreign nation. Therefore, â€if such acquisition occurs in the United States†isn’t met.
The government contracts with the telco to obtain and forward the acquisitions to an NSA office in a foreign nation (via dedicated, secure hardware). Again, â€if such acquisition occurs in the United States†isn’t met, because the government didn’t acquire the communication in the US (even though the telco did)
Sort of like arguments in the blogosphere. It’s easy to find arguments based on the manipulation of language.
– My point is that the law seems to have been changed to say that if, in the course of acquiring metadata, the government just happens to also get the contents, well, that wasn’t intentional surveillance. –
I don’t see that argument playing in the part of FISA that’s just been modified. The part that’s been modified is openly trying to get contents as well as metadata.
And as far as I’ve seen, in the turnover of call and e-mail transmission logs (unadmitted), there isn’t much opportnity to also pass the contents.
– it seems to me to be a big change to go from a regime where the government had identify a particular device (phone, computer, whatever) and ask for the â€pen register†to a regime where the government is allowed to collect the same metadata on everybody in the country. –
It’s a huge change. The government does not want to admit that it’s doing that.