The Government Doesn’t Want to Talk about Collecting Domestic Communications under FAA
On Friday, the government appealed the 2nd Circuit’s decision that Amnesty International and other NGOs and individuals have standing to challenge the FISA Amendments Act. I’ll have a post on the implications of their substantive argument shortly. But in the meantime, I wanted to note what they’re not even addressing.
The image to the left is a fragment of the government’s references to statutes and regulation mentioned in its brief; it’s the part of the list referring to the part of the FAA in question. As you can see, it almost–but not quite–lists every clause of the law.
One clause notably missing from the almost-sequential list above is 1881a(b)(4), which reads,
[An acquisition authorized under subsection (a)] may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States;
And while it mentions clauses that refer back to this restriction (for example, 1881a(c)(1), 1881a(d), 1881a(g)(2)(A)(i), etc), it never goes back and includes this language–the requirement that the government not intentionally acquire communications that are located entirely within the US–in its argument. (There are other clauses the brief ignores, a number of which pertain to oversight of the certifications the government has made; I may return to these at a future time.)
Or, to put it another way, the government never admits that the FAA permits the purportedly unintentional collection of entirely domestic communication.
And yet that is a part of this lawsuit. The original complaint in this suit invoked this clause:
An acquisition under section 702(a) may not … “intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States
Moreover, the Attorney General and the DNI may acquire purely domestic communications as long as there is uncertainly about the location of one party to the communications.
And the 2nd Circuit opinion (authored by Gerard Lynch) referenced this clause:
“Targeting procedures” are procedures designed to ensure that an authorized acquisition is “limited to targeting persons reasonably believed to be located outside the United States,” and is designed to “prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States.”
In addition, the certification must attest that the surveillance complies with statutory limitations providing that it:
(4) may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States;
Under the FAA, in contrast to the preexisting FISA scheme, the FISC may not monitor compliance with the targeting and minimization procedures on an ongoing basis. Instead, that duty falls to the AG and DNI, who must submit their assessments to the FISC, as well as the congressional intelligence committees and the Senate and House Judiciary Committees.
But the government has not asserted, and the statute does not clearly state, that the FISC may rely on these assessments to revoke earlier surveillance authorizations.
Now, to some degree, the government might argue it ignored the clause prohibiting intentional–but not accidental–targeting of domestic communications because the plaintiffs’ primary basis for establishing standing is their frequent communication with likely targets overseas. As I’ll show, the government wants to make this case about a particular definition of a target, and key to that argument is a claim that it is impossible for the plaintiffs to be targets.
Yet therein lies one of the key problems with their argument, given that 1881a(b)(4) only prohibits the plaintiffs from being intentional targets; the FAA very pointedly did not prohibit the government from keeping US person information it “unintentionally” collected. In fact, Mike McConnell and Michael Mukasey started issuing veto threats when Russ Feingold tried to restrict the ongoing use of domestic communications identified as such after the fact.
Finally, in the one case that approved this kind of collection (though under the Protect America Act, not the FAA) used targeting procedures to substitute for particularity required under the Fourth Amendment. Under PAA, those procedures were not mapped out by law; under FAA they are, partly in the clause the government wants to ignore.
And yet, remarkably, the government doesn’t want that clause to be part of its discussion with SCOTUS. Seeing as how even the FISA Court of Review finds that substitute for particularity–the targeting procedures–to be a key part of compliance with the Fourth Amendment, you’d think that would be relevant.
Steve Vladeck over at Lawfare thinks the Supremes will likely grant cert, and that it’s not “obvious that the Court will reverse”.
As this poor NAL understands things (or not), it would seem to me that the Supremes might easily reverse the 2nd’s decision on standing (no actual proof of monitoring though given the plaintiffs’ clientele a strong likelihood), but Vladeck says not so fast.
In any case, I would agree with Vladeck that the Supremes will likely grant cert if only to shut the door on the 2nd’s opinion.
@MadDog: Dunno whether they’ll grant cert or not–probably. They highlight an earlier Scalia ruling centrally, sort of like waving a red blanket in front of Nino’s eyes. So I actually wouldn’t be surprised if they upheld the district.
@emptywheel: Well if they do uphold the 2nd, I’m guessing that it will only be one volley in a long, bloody war by the Government.
Still, I’d like to see how the Supremes square the circle of the possibility of injury.
@emptywheel: and @MadDog: I dunno. My gut bet would be they would not grant cert unless they are inclined to reverse. Any perceived expansion of standing, especially on governmental liability on nat sec issues, is completely anathema to the Roberts conservative bloc. If the inclination is to affirm, I think they just leave the 2nd opinion in place and step back.
@bmaz: Yeah, the problem with that is twofold.
1) They don’t grant cert and you let the genie out of the bottle. I’ll say more in my follow-up post, but it’s worth noting that the 2008 review of PAA was ONE order, this is all of them, in theory. I think that’s a much bigger problem for the Fourth Amendment than one order (because the targeting procedures are too broad in theory).
2) As we’ve discussed there are the implications for other national security exception arguments.
@bmaz: The expansion of standing was the issue that made me think the Supremes would reverse.
As a side issue, any insight on what the timing is regarding granting cert or not? I ask both in regard to this case as well as the Latif matter. Do the Supremes work to a schedule in these things?
And correct me if I’m wrong, but don’t they announce acceptance of cases, but not explicitly rejection of cases? And then finally, without explicit rejection of cases, does that mean a possibility to sometime later accept it?
Well, this makes (at least) the second case the Obama DoJ has been less than honest with the S.Ct. The first was that deportation case where they argued to the court that DoJ had a policy of helping wrongly deported people come back to the States – Nken v. Holder. The alleged policy (a) didn’t exist and (b) was contained in a couple emails that were tossed back and forth among the brief-writers but (c) was not part of the Record (a big deal for lawyer-types) and still made itself into a central part of the Roberts holding easing the way for deportations. When the deportees got the opinion (on their way out of the country) they FOIA’d the policy they (no anyone else) had never heard of, were refused (on deliberative process, attorney-client and one other exception) and had to sue to get it. The SDNY just wrote a scathing opinion after in camera review.
I expect nothing better from this DoJ – they’ve just ratified lying in millions of property records so why not lie to the S.Ct….
faa is traditionally the federal aviation authority.
i assume here it is used to refer to something called the fisa ammends act.
a better acronym is needed.
@emptywheel: Oh, I didn’t say that I think there is any real chance of that, I think they grant cert and reverse. Thought that went without saying! What I see about no chance of is granting cert and affirming.
@MadDog: Cases await full cert briefing then are under consideration; when the justices are done pondering, the matter is put on a conference schedule. There is no set specific time frame. Cert denials are logged in declination orders, so yes it is made public.
@bmaz: Yeah, I’m just wondering to what degree the govt is selling SCOTUS a bill of false goods? As presented this is easy for them. I’m not sure it’s really so easy.
@bmaz: Ta for that!
Oh, joy! Not only a great analysis of an important issue, but a 3-way discussion between EW, bmaz, and MadDog in the follow-up discussion! Especially EW at 11…
Bob in AZ
@emptywheel: Well, yeah, you know DOJ will be pulling out the stops to reverse the 2nd, and that includes complete disingenuousness, even with the Supes.