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What Happened to that Third Branch Oversight?

Judge Colleen Kollar-Kotelly is pissed.

After spending 2002 to 2006 as Chief Judge of the FISA Court struggling to keep parts of the American legal system walled off from a rogue surveillance program, she read the classified account the NSA’s Inspector General wrote of her efforts. And while that report does say Kollar-Kotelly was the only one who managed to sneak a peek at a Presidential Authorization authorizing the illegal program, she doesn’t believe it reflects the several efforts she made to reel in the program.

“In my view, that draft report contains major omissions, and some inaccuracies, regarding the actions I took as Presiding Judge of the FISC and my interactions with Executive Branch officials,” Kollar-Kotelly said in a statement to The Post.

[snip]

Kollar-Kotelly disputed the NSA report’s suggestion of a fairly high level of coordination between the court and the NSA and Justice in 2004 to re-create certain authorities under the Foreign Intelligence Surveillance Act, the 1978 law that created the court in response to abuses of domestic surveillance in the 1960s and 1970s.

“That is incorrect,” she said. “I participated in a process of adjudication, not ‘coordination’ with the executive branch. The discussions I had with executive branch officials were in most respects typical of how I and other district court judges entertain applications for criminal wiretaps under Title III, where issues are discussed ex parte.”

The WaPo story reporting on her objections makes no mention of the role one FISC law clerk — who got briefed into the program before any of the other FISC judges — played in this process, something I’m pretty curious about.

It does, however, recall two incidents where Kollar-Kotelly took measures to crack down on the illegal program, which Carol Leonnig reported back in 2006.

Both [Kollar-Kotelly and her predecessor Royce Lamberth] expressed concern to senior officials that the president’s program, if ever made public and challenged in court, ran a significant risk of being declared unconstitutional, according to sources familiar with their actions. Yet the judges believed they did not have the authority to rule on the president’s power to order the eavesdropping, government sources said, and focused instead on protecting the integrity of the FISA process.

[snip]

In 2004, [DOJ Office of Intelligence Policy and Review Counsel James] Baker warned Kollar-Kotelly he had a problem with [a “federal screening system that the judges had insisted upon to shield the court from tainted information”]. He had concluded that the NSA was not providing him with a complete and updated list of the people it had monitored, so Justice could not definitively know — and could not alert the court — if it was seeking FISA warrants for people already spied on, government officials said.

Kollar-Kotelly complained to then-Attorney General John D. Ashcroft, and her concerns led to a temporary suspension of the program. The judge required that high-level Justice officials certify the information was complete — or face possible perjury charges.

In 2005, Baker learned that at least one government application for a FISA warrant probably contained NSA information that was not made clear to the judges, the government officials said. Some administration officials explained to Kollar-Kotelly that a low-level Defense Department employee unfamiliar with court disclosure procedures had made a mistake.

Though the NSA IG Report mentions violations that occurred before 2003, it makes no mention of these violations.

What good is an IG Report that gives no idea of how often and persistent violations are?

That said, today’s WaPo story provides this as the solution to our distorted view of the FISA Court’s role in rubber-stamping this massive dragnet.

A former senior Justice Department official, who spoke on the condition of anonymity because of the subject’s sensitivity, said he believes the government should consider releasing declassified summaries of relevant opinions.

“I think it would help” quell the “furor” raised by the recent disclosures, he said. “In this current environment, you may have to lean forward a little more in declassifying stuff than you otherwise would. You might be able to prepare reasonable summaries that would be helpful to the American people.”

Back in 2006, Leonnig noted that the judges didn’t believe they had the authority to intervene to stop the dragnet. So what good does a ruling — even two as broad and stunning as the ones that used Pen Registers and Business Records to collect the contact records of all Americans — do to depict the role the Court is in?

The Administration keeps pointing to this narrowly authorized court as real court review. But that’s not what it is. And until we have a better sense of how that manifested in the past (and continues to — I’ll bet you a quarter that they’ve moved the Internet data mining to some area outside of court purview), we’re not going to understand how to provide real oversight to this dragnet.

We’d be far better off having the FISC provide its own history of these surveillance programs.

In Re Sealed Case and the Goldsmith Memo

In addition to what I laid out here, comparing the 2006 White Paper with the May 6, 2004 Goldsmith memo on the warrantless wiretap program made me realize that the White Paper relies more frequently on In re: Sealed Case than Goldsmith does, at least in the unredacted portions. By my count, the White Paper refers to In re Sealed Case 9 times, whereas Goldsmith refers to it just 3 times (see pages 34, 47, 48; though technically one citation includes three quotes from it).

So I wanted to see why that might be–and what it might say about the program generally and the redacted sections of Goldsmith’s memo.

In Re Sealed Case: How Did the Patriot Act Change the “Wall” between Criminal and Intelligence Investigations?

In the PATRIOT Act, Congress expanded the limit on how the information sought in a FISA warrant could be used. It had required that foreign intelligence be the primary purpose of collection; in an attempt to break down the wall between criminal and intelligence investigations, PATRIOT allowed that foreign intelligence only be a “significant” purpose of the collection. In response to that change, Attorney General Ashcroft issued a memo finding that meant law enforcement could be the primary purpose of such collection and holding that criminal prosecutors could consult on the terms of the wiretaps to be used.

The FISA Court, noting that the FBI had misrepresented its goals in FISA collection in a number of recent instances (but citing only those from before 9/11) invoked its role in ensuring FISA collection meet certain minimization guidelines. It ruled that the government had to keep the Office of Intelligence and Policy Review in the loop in conversations between criminal and intelligence personnel, and criminal personnel could not direct wiretaps.

The FISA Court of Review reversed that decision, finding that the two functions were so intertwined as to permit the involvement of criminal personnel in planning wiretaps.

But its ruling also considered whether the change–allowing the government to use FISA to investigate “intelligence crimes”–was Constitutional under the Fourth Amendment. That discussion, while somewhat inconclusive, lays out some guidelines for what might be a reasonable search for a foreign intelligence purpose. It’s that discussion that provides ripe material for Goldsmith’s and the White Paper’s project of trying to claim the warrantless wiretap program was legal. But also, likely, caused big problems for the warrantless program as well.

The In Re Sealed Case Citations

Here’s how the unredacted parts of Goldsmith and the White Paper rely on In re Sealed Case.

Proof that “the wall” was a problem independent of 9/11

In attempts to dismiss the argument that the modifications Congress made to FISA after 9/11 prove Congress still intended the Administration to rely on its, both papers point to the discussion in In re Sealed Case about the problem of a “wall” between criminal investigations and intelligence. (Goldsmith 34, White Paper 28fn)

A claim that the opinion treats foreign wiretapping as an inherent authority

In a discussion of the President’s inherent authority to conduct warrantless searches of foreign intelligence, both papers cite In re Sealed Case on past Circuit discussions of the President’s power to use warrantless wiretaps to obtain foreign intelligence. Goldsmith does so in one discussion.

The Foreign Intelligence Surveillance Court of Review recently noted that all courts to have addressed the issue have “held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.” In re Sealed Case, 310 F 3rd 717, 742 (Foreign Intel. Surv. Ct. or Rev. 2002). On the basis of that unbroken line of precedent, the Court “[took] for granted that the President does have that authority,” and concluded that, “assuming that is so, FISA could not encroach on the President’s constitutional power.” (Goldsmith 48)

The White Paper cites the first quote on page 31 and again on 37, the second on page 8, and the third on page 35.

In addition to the general use of In re Sealed Case to argue inherent authority, there’s a footnote in In re Sealed Case that dismisses concerns Laurence Silberman raised during the original debate on FISA about the non-adversary process laid out in it; Goldsmith noted that footnote did not extend to Silberman’s larger complaints about inherent power. (Goldsmith 47fn)

Discussion of how “special needs” would permit the use of FISA for criminal wiretaps

The White Paper, unlike Goldsmith in his unredacted discussion of times when “special needs” allow the government to avoid a warrant, relies on In re Sealed Case’s discussion on the topic. The White Paper  includes this quote:

One important factor in establishing “special needs” is whether the Government is responding to an emergency that goes

beyond the need for general crime control. See In re Sealed Case, 310 F.3d at 745-46. (page 38)

It repeats that very reference later on the same page.

In re Sealed Case, 310 F.3d at 745-46 (noting that suspicionless searches and seizures in one sense are a greater encroachment on privacy than electronic surveillance under FISA because they are not based on any particular suspicion, but “[o]n the other hand, wiretapping is a good deal more intrusive than an automobile stop accompanied by

questioning”).

It cites the same passage again, claiming the FISCR had concluded that that passage held that foreign intelligence fit the definition of special needs.

And then borrows from what it claims the FISCR concluded.

As explained by the Foreign Intelligence Surveillance Court of Review, the nature of the “emergency” posed by al Qaeda “takes the matter out of the realm of ordinary crime control.” In re Sealed Case, 310 F.3d at 746. (page 39)

In other words, the unredacted sections of Goldsmith do not rely on In re Sealed Case to claim warrantless wiretapping qualifies as a special need, whereas the White Paper does. Mind you, he does discuss special needs and his discussion covers most of the same cases as the White Paper–notably on page page 39 and to some degree on 105. But he doesn’t cite FISCR.

“The Government … Has Affirmatively Argued that FISA Is Constitutional”

Now, obviously, we can only compare the unredacted parts of Goldsmith’s memo with what the White Paper uses. And there are definitely places in his memo where it appears likely that he discussed In re Sealed Case in currently redacted passage.

For example, two pages following Goldsmith’s use of In re Sealed Case to claim FISCR had endorsed warrantless wiretapping as part of the President’s inherent authority are redacted.

I’m guessing that Goldsmith might have felt obliged to address this part of In re Sealed Case:

The government, recognizing the Fourth Amendment’s shadow effect on the FISA court’s opinion, has affirmatively argued that FISA is constitutional.

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