Chapter 19 - Congressional Authority for National Security Surveillance

Part II

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Implementation of the Foreign Intelligence Surveillance Act of 1978, S. Rep. No. 97-691

The net effect of FISA has been to confuse intelligence gathering with criminal law, and to enmesh intelligence in procedures which are wholly inappropriate to it. In law enforcement the purpose of surveillance is to prosecute the guilty. In intelligence, the purpose of surveillance is to gather information which should not be used for or against any individual, but to safeguard the country from foreign enemies. The proper cure for abuses of surveillance for purposes of intelligence is examination after the fact, and punishment of those who abuse their trust.

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Zacarias Moussaoui - the 20th Hijacker

Why was he arrested? What had the French told the FBI about him? Why was a FISA warrant denied by DOJ? Why was the criminal warrant denied by DOJ?

What did Judge Lambert have to do with this? The Moussaoui incident lead to In re: Sealed Case

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In re: Sealed Case No. 02-001, 02-002 (FIS Court of Review) 310 F.3d 717 (2002)

The Lower Court Order: ...law enforcement officials shall not make recommendations to intelligence officials concerning the initiation, operation, continuation or expansion of FISA searches or surveillances. Additionally, the FBI and the Criminal Division [of the Department of Justice] shall ensure that law enforcement officials do not direct or control the use of the FISA procedures to enhance criminal prosecution, and that advice intended to preserve the option of a criminal prosecution does not inadvertently result in the Criminal Division’s directing or controlling the investigation using FISA searches and surveillances toward law enforcement objectives.

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Enforcement Provisions

What is the ‘‘chaperone requirement’’ in this case? What is the chaperone supposed to do?

What if representatives of OIPR are unable to attend such meetings? Who else is supposed to be informed?

What will the effect of these procedures be?

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The Wall

What is the "wall" that the FISA court assumed existed?

How did the court find use the authority for minimization procedures to enforce this wall?

Does the language of FISA create this wall? Did the lower court deal with the Patriot Act? What was the intent of the Patriot Act as regards

the wall?

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The History of FISA

How do the definitions of "foreign intelligence information" and "agent of a foreign power" in the original act undermine the notion of a wall?

What is the original intent of FISA as regards what would be done with people caught using the act? What alternative could there be?

What did the appeals court say about the role of judges and intent under the original Act?

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United States v. Truong Dinh Hung:Is it a proper source for the Wall?

Why does the court say that United States v. Truong Dinh Hung does not apply to FISA?

If Hung was under FISA, what was the source of authority?

How did the 1995 the Attorney General's ‘‘Procedures for Contacts Between the FBI and the Criminal Division Concerning Foreign Intelligence and Foreign Counterintelligence Investigations" enshrine Truong Dinh Hung?

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The Patriot Act Amendments to FISA

Purpose become "a significant purpose" What does this signify?

Agents using FISA warrants were allowed to consult with criminal law investigators and still maintain that national security was a significant purpose of the warrant What does the government say this means?

How do these amendments affect the 1995 procedural wall? The AG updated the guidelines in 2002

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Minimization Procedures

What are the purpose of minimization procedures?

What do the minimization procedures allow as regard ordinary crimes?

What is the constitutional issue with the FISA court refusing to implement the 2002 guidelines?

Vermont Yankee, adlaw scholars?

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The Patriot Act and the Wall

"The important point is—and here we agree with the government—the Patriot Act amendment, by using the word ‘‘significant,’’ eliminated any justification for the FISA court to balance the relative weight the government places on criminal prosecution as compared to other counterintelligence responses."

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The Patriot Act and the Primary Purpose Doctrine

How do we know the legislature intended to break down the wall?

What if the purpose is solely criminal investigation?

Will any defendant ever prove this? Why not? Who has the responsibility for reviewing the

government purpose?

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Limiting United States v. Truong Dinh Hung

What did Keith say about warrants for national security cases?

What is the problem with Truong" The false premise was the assertion that once the

government moves to criminal prosecution, its ‘‘foreign policy concerns’’ recede. ...that is simply not true as it relates to counterintelligence. In that field the government’s primary purpose is to halt the espionage or terrorism efforts, and criminal prosecutions can be, and usually are, interrelated with other techniques used to frustrate a foreign power’s efforts. . . .

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Special Needs Cases

How does the court distinguish special needs cases from ordinary law enforcement? Drunk driving check points versus border searches,

even 100 miles from the border Drug testing of student athletes

"Rather, the Court distinguished general crime control programs and those that have another particular purpose, such as protection of citizens against special hazards or protection of our borders."

What is the problem with the approach?

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Mayfield v. U.S. 504 F. Supp. 2d 1023 (2007); vacated, Mayfield v. U.S., 588 F.3d 1252 (2009)

What was the terrorist event being investigated? Who is the plaintiff?

How was he identified? Was this identification contested?

What did the government do while investigating him? Was he involved? Did the government have to pay him?

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Pre-FISA: Berger v. New York, 388 U.S. 41, 58-60 (1967)

The Supreme Court struck down a New York wire tap law: (1) “it did not requir[e] the belief that any particular

offense has been or is being committed; nor that the ‘property’ sought, the conversations, be particularly described;”

(2) it failed to limit the duration of the surveillance to impose sufficiently stringent requirements on renewals of the authorization; and

(3) the statute “has no requirement for notice as do conventional warrants, nor does it overcome this defect by requiring some showing of special facts.” .

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The Attack on FISA

What is the claim about a national security exception to the 4h amendment? Has the United States Supreme Court created

such as exception? What did Berger say about a 4th amendment

exception for fighting organized crime? How does plaintiff use this to support his case?

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In re Sealed Case, Redux

How does the plaintiff argue that tearing down the wall should encourage courts to reject special needs exceptions to the 4th Amend?

What is his constitutional argument against the FISA amendments? How do they undermine separation of powers? Is this what the 4th amendment is really about?

What did the court rule?

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Alternatives to FISA

Are there alternative criminal laws that could be used against terrorists?

Does the Court see these as a viable alternative to FISA? What would the feds say about the limitations of using

traditional criminal law warrants? What does the court hold about the constitutionality of

the Patriot Act amendments to FISA? This case presented interesting issue, but has been

vacated, putting to rest these theories.

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Problems with FISA

"experience demonstrates three harsh realities: first, it is often difficult to isolate U.S. persons from one or more foreign surveillance targets in a place or through electronic monitoring; second, it is often impossible to determine the relationship of a potential terrorist to a foreign power early in an investigation; and third . . . U.S. persons are as capable as any other of wreaking catastrophic havoc."

How does the lone wolf provision help with this?

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NSA screening of International Phone Calls

Is pattern matching on electronic communications "reading the content"?

What are the impediments to getting FISA warrants for this screening? Did FISA provide for area warrants? Did FISA contemplate individual warrants for given

individuals? Could the government just put everyone on notice that

foreign calls may be screened and eliminate the expectation of privacy?

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AUMF in Iraq

"The AUMF authorizes the President ‘‘to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks of September 11, 2001, . . . in order to prevent any future acts of international terrorism against the United States.’’ §2(a). The AUMF clearly contemplates action within the United States - (the attacks of September 11 ‘‘render it both necessary and appropriate that the United States exercise its rights to selfdefense and to protect United States citizens both at home and abroad’’).

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Letter from William E. Moschella

Does the president claim intrinsic authority for national security searches, outside the 4th amendment and congressional authorization?

How does the AUMF potentially expand FISA? Does the AUMF supersede FISA procedures? Is this an unambiguous reading of both laws?

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American Civil Liberties Union v. National Sec. Agency, 493 F.3d 644 (6th Cir 2007)

Who are the plaintiffs? What are the complaining that the NSA is doing

illegally? Does FISA ban intercepting and reading

communications without a warrant?

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The Standing Problem

Can any of the plaintiffs show that their calls have been intercepted? Can anyone show this?

What would be required for this showing? Why is that not going to happen?

Is this showing essential for standing? Why isn't it necessary for a declaratory

judgment that the agency is acting illegally?

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What are the Damages?

What do plaintiffs argue is their damages? Are they arguing that they are worried they will be

arrested? Even if true, why would you not bring it up?

What might damages be for an attorney with an overseas client? Is this more than just invasion of privacy?

Do they have an alternatives to avoid interception of their messages?

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Redressablity

What is redressablity? Would they know if there was a proper warrant? Think about plaintiffs' arguments about what they

are worried about Would any of their concerns be different if the

search was based on a warrant? Since they could not know if there was a

warrant, would they be able to behave differently if the NSA said it would obey FISA?

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The Court's Holding

Why did the court find that none of the plaintiffs had standing?

Could anyone get standing under this analysis? Who would be the right party to bring an action? Why is this unlikely? Why did this make the telcom company immunity

for complying such an important issue?

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In re Directives..., 551 F.3d 1004 (Foreign Int.Surv.Ct.Rev. Aug 22, 2008)

Who is opposing this FISA warrant? On whose behalf?

Is this a facial or as-applied challenge? Where is this surveillance taking place? Does it include US persons?

What would be the problem for the arguments used if it were only non-US persons and places

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Is there a National Security Exception (NSE)

Does petitioner accept the NSE? How does petitioner argue that Keith supports

his position? How are the drug testing, pat-frisk, and plain view

cases exceptions to the 4th Amendment? How does the court use them to argue for its

rejection of petitioner's claims?

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The Limits of the NSE

What is the governmental interest in national security - how is this like the drug testing cases?

Petitioner argues that the NSE should require that the primary purpose of the surveillance. What standard does the court use to determine

if the NSE should apply? Is there any evidence that this was not a

national security investigation?

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Is the Surveillance Reasonable?

Must the government follow the six factors from In re Sealed Case?

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.

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What about Separation of Powers?

"But this is little more than a lament about the risk that government officials will not operate in good faith. That sort of risk exists even when a warrant is required. In the absence of a showing of fraud or other misconduct by the affiant, the prosecutor, or the judge, a presumption of regularity traditionally attaches to the obtaining of a warrant."

Is petitioner really just complaining about bad faith? Is there more to a 4th amendment warrant?

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Minimization Procedures

What is incidentally collected information about non-targeted US persons?

Why is petitioner worried about this information? What are minimization procedures for US

persons? How does the court use these to minimize the

importance of petitioner's concerns? What would the petitioner have to do to refute

this?

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FISA Amendments Act of 2008

Does Section 702 create an area warrant for interception of communications originating outside the US?

Why does the Act have provisions allowing the communications companies to contest these warrants in court?

Why is there a provision granting the communications companies immunity from complying with these orders?