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The Immediate Phone Dragnet Fixes Obama Rejected

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In its report, PCLOB makes it clear that President Obama had most of its recommendations before he gave his speech last Friday.

PCLOB briefed senior White House staff on the Board’s tentative conclusions on December 5, 2013. The PCLOB provided a near final draft of the Board’s conclusions and recommendations on Section 215 and the operations of the FISA court (Parts 5, 7 and 8 of this Report) to the White House on January 3, the transparency section (Part 9) on January 8, 2014, and additional statutory analysis on January 14, 2014 (Part 5). On January 8, the full Board met with the President, the Vice President and senior officials to present the Board’s conclusions and the views of individual Board members.

Which means Obama was well aware of the four recommendations PCLOB made on immediate privacy fixes (they emphasize these recommendations don’t require Congressional or FISC action).

The Board recommends that the government immediately implement several additional privacy safeguards to mitigate the privacy impact of the present Section 215 program. The recommended changes can be implemented without any need for congressional or FISC authorization. Specifically, the government should:

(a) reduce the retention period for the bulk telephone records program from five years to three years;

(b) reduce the number of “hops” used in contact chaining from three to two;

(c) submit the NSA’s “reasonable articulable suspicion” determinations to the FISC for review after they have been approved by NSA and used to query the database; and

(d) require a “reasonable articulable suspicion” determination before analysts may submit queries to, or otherwise analyze, the “corporate store,” which contains the results of contact chaining queries to the full “collection store.”

So it’s safe to assume President Obama affirmatively rejected the 2 recommendations he did not adopt in any form: reducing the retention period for dragnet data and requiring RAS to search the corporate store.

Noted.

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PCLOB Adopts the Drip Drip Drip Approach Too

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As Charlie Savage and Ellen Nakashima report, PCLOB will release a report on the phone dragnet today calling the program illegal. I’ll report more on the report after it gets released this afternoon.

In the meantime, note that it appears PCLOB is only reporting on the Section 215 phone dragnet with this report. They’re not reporting on Section 702.

Yet they were supposed to be. They told the President and Congress in November they would produce one report.

Met with officials of the Department of Justice (DOJ), Office of the Director of National Intelligence (ODNI), Federal Bureau of Investigation (FBI), and the National Security Agency (NSA) on several occasions to discuss the operation and oversight of programs under Section 215 of the USA PATRIOT Act (telephone metadata) and Section 702 of the Foreign Intelligence Surveillance Act. These discussions covered collection, use and dissemination practices, compliance measures, including internal and external oversight, and the implementation guidelines governing collection and use of intelligence pursuant to Sections 215 and 702. These discussions commenced prior to June 2013 as part of the Board’s basic oversight responsibilities, and then evolved, after the Snowden leaks, into a more in-depth review of the programs operated pursuant to Sections 215 and 702. The review, which is intended to culminate in a public report as requested by the President and Members of Congress, is addressing the history, legality, necessity, and effectiveness of these programs. [my emphasis]

And that was even Nakashima’s understanding just hours before she got this report. Spencer Ackerman reports they will issue the Section 702 report in the coming weeks.

The PCLOB is not finished with its assessment of NSA surveillance. It plans in the coming weeks to issue another report evaluating the NSA’s collection of bulk foreign Internet communications, which have included those with Americans “incidentally” collected.

Drip … drip … drip …

Already, several weeks ago, anonymous sources were repeating anonymous White House staffers bitching that PCLOB would not be done before the President gave his speech last Friday.

It’s unclear why Obama will announce his recommendations before receiving the report from the privacy and civil liberties board. One official familiar with the review process said that some White House officials were puzzled by the board’s delay.

Now, the PCLOB is taking at least two bites at the dragnet, which will keep problems with the dragnet in the news.

I guess those anonymous White House complainers are going to have a harder time achieving closure on the discussions about the dragnet.

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PCLOB Told Mike Rogers They Would Discuss Legality of Dragnet

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Mike Rogers is outraged! outraged! that PCLOB overstepped what he sees as their mandate to talk about the illegality of the phone dragnet.

Defenders of the program reacted sharply to the report’s findings on Thursday. Rep. Mike Rogers (R-Mich.), chairman of the House Intelligence Committee, said he agreed with the two dissenters “that the board should … not partake in unwarranted legal analysis.”

I find this hysterical not just because Rogers has spent the last 7 months weighing in the program’s legality. I’ll take Retired Appeals Court Judge Patricia Wald’s opinion on legality over Rogers’ any day.

But it’s also funny because PCLOB told Rogers (as well as the President and the rest of Congress) they were going to report on the program’s legality back in their November report to the President and Congress.

Met with officials of the Department of Justice (DOJ), Office of the Director of National Intelligence (ODNI), Federal Bureau of Investigation (FBI), and the National Security Agency (NSA) on several occasions to discuss the operation and oversight of programs under Section 215 of the USA PATRIOT Act (telephone metadata) and Section 702 of the Foreign Intelligence Surveillance Act. These discussions covered collection, use and dissemination practices, compliance measures, including internal and external oversight, and the implementation guidelines governing collection and use of intelligence pursuant to Sections 215 and 702. These discussions commenced prior to June 2013 as part of the Board’s basic oversight responsibilities, and then evolved, after the Snowden leaks, into a more in-depth review of the programs operated pursuant to Sections 215 and 702. The review, which is intended to culminate in a public report as requested by the President and Members of Congress, is addressing the history, legality, necessity, and effectiveness of these programs. [my emphasis]

He didn’t object at the time.

He’s only objecting now that the Board has found the program illegal.

Rogers might complain that he didn’t notice this warning back then and therefore shouldn’t be held accountable for not objecting back when he was told they were going to review the legality of the program. But to make that argument, Rogers would have to admit he’s inattentive to matters concerning the programs he has primary oversight responsibility over.

While there’s abundant evidence that’s true, I doubt Rogers is prepared to admit it.

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Is PCLOB Holding Out for EO 12,333 Information?

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As you know, I’ve been tracking the way President Obama seems to want to game the various legislative and review group recommendations with his own.

Which is why I’m interested in this anonymous complaint, from someone in the White House, that PCLOB has not yet released its report.

Before making his final decisions, the president was supposed to receive a separate report from a semi-independent commission known as the Privacy and Civil Liberties Oversight Board, which was created by Congress. However, that panel’s report has been delayed without explanation until at least late January, meaning it won’t reach the president until after he makes his decisions public.

Members of that oversight board met with the president on Wednesday and have briefed other administration officials on some of their preliminary findings. In a statement, the five-member panel said its meeting with the Mr. Obama focused on the NSA phone collection program and the Foreign Intelligence Surveillance Court, which oversees the data sweeps.

It’s unclear why the president will announce his recommendations before receiving the report from the privacy and civil liberties board. One official familiar with the review process said some White House officials were puzzled by the board’s delay. The report would still be available to Congress, where legislators are grappling with several bills aimed at dismantling or preserving the NSA’s authority. [my emphasis]

The complaint is interesting not just because it betrays some consternation that the White House won’t be able to control the timing on all of this.

Last we heard from PCLOB on November 4, they said publicly that that report would focus on just Section 215 and 702 programs, the two programs the Administration has been trying to provide a limited hangout on since June (though in their Semi-Annual Report from November 3, they also said they were focusing on 12333 guidelines).

But different board members were also focusing on EO 12333 activities. PCLOB Chair David Medine asked about the theft of Google and Yahoo data off their fiber in Europe; Patricia Wald asked whether EO 12333 guidelines legally governed the dissemination of Section 215 data even if the FISC imposed more stringent guidelines; Medine asked whether searches of the corporate store (phone dragnet query results) are governed by EO 12333; and James Dempsey asked what governs the back door searches of data collected under EO 12333.

PCLOB board members clearly get that they can’t understand the NSA’s activities without understanding what goes on under EO 12333. Yet on one occasion (in response to the Google and Yahoo question), NSA’s General Counsel Raj De tried to defer any answer because it was not a Section 215 or 702 question.

MR. DE: Even by the terms of the article itself there is no connection to the 702 or 215 programs that we are here to discuss. I would suggest though that any implication which seemed to be made in some of the press coverage of this issue that NSA uses Executive Order 12333 to undermine, or circumvent or get around the Foreign Intelligence Surveillance Act is simply inaccurate.

Later, Dempsey asked ODNI’s General Counsel Robert Litt when PCLOB was going to get the guidelines NSA used for “other types of collection,” meaning that collected under EO 12333.

MR. DEMPSEY: We have asked about, in fact months ago, several months ago we asked about guidelines for other types of collection, and where do we stand on getting feedback on that? Because you said 18, for example, is the minimization provisions for collection outside the United States, and that’s pretty old. Where do we stand on looking at how that data is treated?

MR. LITT: I think we’re setting up a briefing for you on that. I believe we’re setting up a briefing for you on that. We did lose a few weeks.

MR. DEMPSEY: No, I understand. I was wondering if you could go beyond saying we’re setting up a briefing.

MR. LITT: Well, I mean we’re in the process of reviewing and updating guidelines for all agencies under 12333. It’s an arduous process. You know, it’s something that we’ve been working on for some time and we’re continuing to work on it.

They’re referring to a letter PCLOB sent back in August about outdated guidelines limiting the dissemination of US person data, a James Clapper response a month later promising and a follow-up 10 days later, on October 3,  reminding PCLOB had asked for a briefing and updates on agencies’ EO 12333 procedures.

And a month later, PCLOB still had not gotten either the briefing or the written description of where agencies were.

During that entire time, it was becoming more and more clear that the NSA might be moving programs overseas (and therefore under EO 12333) that had been governed by FISA. If that is happening, it’s a matter of significant concern.

Reports on Obama’s review say he wants to roll out reforms that might cover any disclosures to come.

Obama is expected to deliver a national address announcing a set of intelligence-gathering changes. His aim is to set in place guidelines that will convince critics he is serious about reform and that will withstand future disclosures.

[snip]

“The bulk of the work on this is the policy review, not reacting to what the next story is,” said another senior administration official, who requested anonymity to discuss the internal deliberations. “We don’t know what the next thing will be, and we do have to deal with what comes next. But getting the policy right is what’s important so that as new things come, we’ve addressed the core of it.

I’m of the opinion that the disclosures to come will continue to focus attention on what the NSA does under EO 12333.

So is that what’s holding up PCLOB?

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The Intelligence Community’s Wide Open, Unprotected Back Door to All Your Content

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PCLOB has posted the transcript from the first part of its hearing on Monday. So I want to return to the issue I raised here: both Director of National Intelligence General Counsel Robert Litt and NSA General Counsel Raj De admit that there are almost no limits on Intelligence Community searches of incidentally collection US person data (we know that FBI, NSA, and CIA have this authority, and I suspect National Counterterrorism Center does as well).

This discussion starts when PCLOB Chair David Medine asks whether the IC would consider getting a warrant before searching on incidentally collected data.

MR. MEDINE: And so turning to the protections for U.S. persons, as I understand it under the 702 program when you may target a non-U.S. person overseas you may capture communications where a U.S. person in the United States is on the other end of the communication. Would you be open to a warrant requirement for searching that data when your focus is on the U.S. person on the theory that they would be entitled to Fourth Amendment rights for the search of information about that U.S. person?

MR. DE: Do you want me to take this?

MR. LITT: Thanks, Raj. Raj is always easy, he raises his hands for all the easy ones.

MR. DE: I can speak for NSA but this obviously has implications beyond just NSA as well.

MR. LITT: I think that’s really an unusual and extraordinary step to take with respect to information that has been lawfully required.

I mean I started out as a prosecutor. There were all sorts of circumstances in which information is lawfully acquired that relates to persons who are not the subject of investigations. You can be overheard on a Title III wiretap, you can overheard on a Title I FISA wiretap. Somebody’s computer can be seized and there may be information about you on it.

The general rule and premise has been that information that’s lawfully acquired can be used by the government in the proper exercise of authorities.

Now we do have rules that limit our ability to collect, retain and disseminate information about U.S. persons. Those rules, as know, are fairly detailed. But generally speaking, we can’t do that except for foreign intelligence purposes, or when there’s evidence of a crime, or so on and so forth. But what we can’t do under Section 702 is go out and affirmatively use the collection authority for the purpose of getting information about U.S. persons. Once we have that information I don’t think it makes sense to say, you know, a year later if something comes up we need to go back and get a warrant to search that information. [my emphasis]

Litt compares finding incidental information on a laptop, presumably seized using a warrant, with searching for incidental information on a digital collection that includes very few limits on specificity. Remember, NSA can and has claimed a targeted “facility” may mean all the Internet traffic from a particular country or at least a region of a country. This is petabytes of data obtained with a directive, not gigabytes obtained with a specific warrant.

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Raj De and the Back-Door Loophole

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As I already noted, NSA General Counsel lied in today’s PCLOB hearing when he said the use of Section 215 to conduct a phone dragnet had the indicia of legitimacy because Congress twice reauthorized the PATRIOT after the executive had given it full information.

We know that the 2010 freshman class — with the exception of the 7 members who served on the Judiciary or Intelligence Committees — did not have opportunity to learn the most important details about the phone dragnet before reauthorizing PATRIOT in 2011. And it appears DOJ withheld from the Judiciary and Intelligence the original phone dragnet opinion — and they clearly withheld significant FISC materials on it — until August 2010, after PATRIOT had been reauthorized the first time. I trust Ben Wittes, who wants to prevent Jim Sensenbrenner from commenting on NSA’s secrecy because he’s dishonest about his own role, applies a similar standard to Raj De.

But I was even more interested in the way De answered Center for Democracy and Technology’s Jim Dempsey’s question about the back-door loophole in which NSA searches on incidentally collected US person data (starting at 2:09:00).  Dempsey asked whether NSA needed something like the Reasonably Articulable Suspicion before it searched incidental US person data. De treated the question as nonsensical, given that when you collect on a particular phone number in the criminal context you don’t need to ignore what you find.

In other words, the NSA has a lower standard for access this content than they do for accessing the metadata of our phone calls.

Curiously, though, De tried to tout the minimization of both 702 and EO 12333 collection to present this as reasonable.

By minimization, Dempsey asked, you mean you keep it.

De insisted that no, there’s minimization at each step of the process.

I get how he was trying to use this blatant dodge. I get that the NSA assumes they can take everything so long as they’re careful about how they sent it around.

But make no mistake. NSA searches on the data before it gets minimized.

Here’s how this year’s Semiannual Compliance Review, submitted by the Attorney General and Director of National Intelligence, describes this practice.

NSA’s querying of unminimized Section 702-acquired communications using United States person identifiers (page 7)

Here’s how John Bates referred to the practice, based on a submission the NSA had made itself (though before De was writing the documents), in his October 3, 2011 opinion.

The government has broadened Section 3(b)(5) to allow NSA to query the vast majority of its Section 702 collection using United States-Person identifiers, subject to approval pursuant to internal NSA procedures and oversight by the Department of Justice. Like all other NSA queries of the Section 702 collection, queries using United States-person identifiers would be limited to those reasonably likely to yield foreign intelligence information. (page 22-23)

Bates justifies this practice by pointing to another agency’s (almost certainly FBI) use of the practice, which he describes as,

an analogous provision allowing queries of unminimized FISA-acquired information using identifiers — including United States-person identifiers — when such queries are designed to yield foreign intelligence information.

The NSA has restrictions about circumstances in which they can share this data (which arguably will be expanded under Dianne Feinstein’s FakeFISAFix). But they allow the NSA to share this data if it is “foreign intelligence,” evidence of a crime, and evidence of a threat to life-which-to-NSA-means-property.

They can sweep up entire countries worth of Internet traffic. They can sweep up entire mailboxes overseas. And then go in, without a warrant, and “discover” evidence of crime.

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Has Federal Use of Drones Violated EO 12333?

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The Privacy and Civil Liberties Oversight Board just sent a letter to Eric Holder and James Clapper requesting that they have all the Intelligence Committee agencies update what are minimization procedures (though the letter doesn’t call them that), “to take into account new developments including technological developments.”

As you know, Executive Order 12333 establishes the overall framework for the conduct of intelligence activities by U.S. intelligence agencies. Under section 2.3 of the Executive Order, intelligence agencies can only collect, retain, and disseminate information about U.S. persons if the information fits within one of the enumerated categories under the Order and if it is permitted under that agency’s implementing guidelines approved by the Attorney General after consultation with the Director of National Intelligence.

The Privacy and Civil Liberties Oversight Board has learned that key procedures that form the guidelines to protect “information concerning United States person” have not comprehensively been updated, in some cases in almost three decades, despite dramatic changes in information use and technology.

The whole letter reads like the public record of a far more extensive and explicit classified discussion. Which makes me wonder what PCLOB found, in particular.

There are many technological issues that might be at issue — especially location data, but also generally Internet uses. Then there’s the advance in database technology, making the sharing of information much more invasive because of the way it can be used. But I wonder if this letter isn’t a demand that members of the intelligence community correct their use of drones.

The letter seems to point to something in EO 12333 Section 2.3 as its concern. Among the other potential enumerated categories of interest is this one:

Agencies within the Intelligence Community are authorized to collect, retain or disseminate information concerning United States persons only in accordance with procedures established by the head of the agency concerned and approved by the Attorney General, consistent with the authorities provided by Part 1 of this Order. Those procedures shall permit collection, retention and dissemination of the following types of information:

[snip]

(h) Information acquired by overhead reconnaissance not directed at specific United States persons; [my emphasis]

We recently learned that the FBI has used drones in the following situations:

UAVs have been used for surveillance to support missions related to kidnappings, search and rescue operations, drug interdictions, and fugitive investigations. Since late 2006, the FBI has conducted surveillance using UAVs in eight criminal cases and two national security cases.  For example, earlier this year in Alabama, the FBI used UAV surveillance to support the successful rescue of the 5-year-old child who was being held hostage in an underground bunker by Jimmy Lee Dykes.

[snip]

The FBI does not use UAVs to conduct “bulk” surveillance or to conduct general surveillance not related to an investigation or an assessment.

It goes on to cite the Domestic Investigations and Operations Guide as its internal authority for the use of drones.

And while FBI’s use of drones to catch a kidnapper may not fall under the FBI’s intelligence mandate (and therefore may not violate EO 12333, which is about intelligence collection), it seems the two national security uses would.

If the subject of those national security investigations was a US person, it would seem to be a violation of EO 12333.

Note, too, that drones are listed among PCLOB’s focus items (see page 13).

That’s just a guess. I would also imagine that minimization procedures need updated given the more prevalent use of databases (NCTC’s access of government databases is another of PCLOB’s focuses). I would imagine that some intelligence community members (including both the NCTC and DHS) are in violation of the mandate that the FBI collect foreign intelligence within the US. And PCLOB also cites GPC use as another of its foci, which is one of the technologies that has developed in the last 30 years.

But given the timing of it all, I wonder if this is a push to get the FBI to stop using drones for intelligence collection.

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After 7 Years of Refusing Any Public Debate, Executive Decries Congress for Not Being “Open”

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Here’s what the Administration thinks about the Amash-Conyers amendment (which it calls the Amash Amendment, perhaps not wanting to name a Democrat who has been involved in historic fights against out-of-control executive power in the past), which would defund dragnet Section 215 collection.

In light of the recent unauthorized disclosures, the President has said that he welcomes a debate about how best to simultaneously safeguard both our national security and the privacy of our citizens. The Administration has taken various proactive steps to advance this debate including the President’s meeting with the Privacy and Civil Liberties Oversight Board, his public statements on the disclosed programs, the Office of the Director of National Intelligence’s release of its own public statements, ODNI General Counsel Bob Litt’s speech at Brookings, and ODNI’s decision to declassify and disclose publicly that the Administration filed an application with the Foreign Intelligence Surveillance Court. We look forward to continuing to discuss these critical issues with the American people and the Congress.

However, we oppose the current effort in the House to hastily dismantle one of our Intelligence Community’s counterterrorism tools. This blunt approach is not the product of an informed, open, or deliberative process. We urge the House to reject the Amash Amendment, and instead move forward with an approach that appropriately takes into account the need for a reasoned review of what tools can best secure the nation.

I find it interesting, first of all, that they sent this after Keith Alexander had his shot to lobby Congress in a Top Secret/SCI briefing. I guess they didn’t come away with a high degree of confidence Amash-Conyers was going to fail.

Then consider the head-spinning logic:

  • Unauthorized disclosures led to a Presidential claim he welcomes a “debate”
  • It lists several examples in which Executive Branch figures tell the public details about this surveillance (note the White House didn’t mention the NSA documents, which had to be withdrawn for inaccuracies); it calls these “proactive” in spite of the fact that they are all clear reactions to that unauthorized disclosure
  • It reiterates that it considers these one-way communications discuss[ions]
  • After saying one-way communication is discussion, the Administration says, “this blunt approach is not the product of an informed, open, or deliberative process”
  • Having made this ridiculous argument, the White House says it wants a “reasoned review”

Hell, if I were a self-respecting member of Congress, I’d support Amash-Conyers even if I weren’t already predisposed to, if only because this is such a crazy bat-shit claim to reason and openness.

The Executive Branch has had 7 years to have an open debate. It chose not to have that open debate. Now that one has been brought to it by Congress, it pretends Congress is the one at fault for the lack of informed or open process.

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PCLOB: An Exercise in False Oversight

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As you may have seen from the reporting or my live-tweeting of yesterday’s Privacy and Civil Liberties Oversight Board hearing on the government’s surveillance program, there were a few interesting bits of news, starting with former FISC judge James Robertson’s assertion that what FISC has done since it started approving bulk collection amounts to “approval” not “adjudication” and puts the court in an inappropriate policy making role. Robertson also said FISC needs an adversarial role it doesn’t currently have. Robertson also raised the possibility Section 215 could be used to create a gun registry not otherwise authorized by law, a point ignored by the former government officials on his panel.

I also thought James Baker’s testimony was interesting. In his prepared statements, Baker seemed to suggest the entire hearing was a wasted exercise, because the program had plenty of oversight. (Remember, Baker was in a key role at DOJ working with FISC through 2007, and got stuck trying to keep intelligence gathered under the illegal program out of traditional FISA applications.) But just before the end of the hearing Baker said before all the bulk collection, FISA worked. He repeated it, FISA worked. Baker may have come to accept these bulk programs, but he sure seemed to think they weren’t necessary.

But the most telling part of the hearing, in my opinion, is the presence of Steven Bradbury and Ken Wainstein on the panel.

There were plenty of other former government officials on the panels, representing all branches. But these two were in far more central positions in the roll out of both the legal and illegal programs. One of the key documents released by the Guardian, showing Wainstein and Bradbury recommending that newly confirmed Attorney General Michael Mukasey resume the contact chaining of Internet metadata, shows them expanding one of the most legally questionable aspects of this surveillance.

The ground rules of the hearing made it worse. The hearing followed the inane rules the Obama Administration adopts in the face of large leaks, pretending these public documents aren’t public. The Chair of PCLOB, David Medine, said no one could confirm anything that hadn’t already been declassified by the government.

Which not only put that document outside the scope of the discussion. But meant neither Bradbury nor Wainstein disclosed this clear conflict.

At one point in the hearing, the moderator even suggested that every time ACLU’s Jameel Jaffer said something, either Bradbury or Wainstein should have an opportunity to rebut what Jaffer said.

Yes, there were a number of interesting revelations at the hearing, along with the typical inanity from Wainstein and, especially, Bradbury. But it was set up with all the conflicts of a Presidential Commission meant to dispel controversy, not a real champion for privacy or civil liberties.

And its treatment of these two former government shills is just representative of that.

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The Torture That Underlies FISA Court’s “Special Needs” Decisions

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At the core of the expanding dragnet approved in secret by the FISA Court, Eric Lichtblau explained, is the application of “special needs” to “track” terrorists.

In one of the court’s most important decisions, the judges have expanded the use in terrorism cases of a legal principle known as the “special needs” doctrine and carved out an exception to the Fourth Amendment’s requirement of a warrant for searches and seizures, the officials said.

The special needs doctrine was originally established in 1989 by the Supreme Court in a ruling allowing the drug testing of railway workers, finding that a minimal intrusion on privacy was justified by the government’s need to combat an overriding public danger. Applying that concept more broadly, the FISA judges have ruled that the N.S.A.’s collection and examination of Americans’ communications data to track possible terrorists does not run afoul of the Fourth Amendment, the officials said.

That legal interpretation is significant, several outside legal experts said, because it uses a relatively narrow area of the law — used to justify airport screenings, for instance, or drunken-driving checkpoints — and applies it much more broadly, in secret, to the wholesale collection of communications in pursuit of terrorism suspects. “It seems like a legal stretch,” William C. Banks, a national security law expert at Syracuse University, said in response to a description of the decision. [my emphasis]

That’s actually not entirely secret. We see the beginnings of the process in the 2002 In Re Sealed Case decision by the FISC Court of Review, which thwarted FISA Court Chief Judge Royce Lamberth’s attempt to limit how much FISA information got shared for criminal prosecutions. In approving the “significant purpose” language passed in the PATRIOT Act which made it far easier for the government to use FISA information to justify criminal investigations, the decision pointed to the post-9/11 threat of terrorism to justify FISA as a special needs program (though as I lay out in this post, they also pointed to the judicial review and specificity of FISA to deem it constitutional, which should have presented problems for the dragnet programs that followed).

FISA’s general programmatic purpose, to protect the nation against terrorists and espionage threats directed by foreign powers, has from its outset been distinguishable from “ordinary crime control.” After the events of September 11, 2001, though, it is hard to imagine greater emergencies facing Americans than those experienced on that date.

We acknowledge, however, that the constitutional question presented by this case–whether Congress’s disapproval of the primary purpose test is consistent with the Fourth Amendment–has no definitive jurisprudential answer. The Supreme Court’s special needs cases involve random stops (seizures) not electronic searches. In one sense, they can be thought of as a greater encroachment into personal privacy because they are not based on any particular suspicion. On the other hand, wiretapping is a good deal more intrusive than an automobile stop accompanied by questioning.

Although the Court in City of Indianapolis cautioned that the threat to society is not dispositive in determining whether a search or seizure is reasonable, it certainly remains a crucial factor. Our case may well involve the most serious threat our country faces. Even without taking into account the President’s inherent constitutional authority to conduct warrantless foreign intelligence surveillance, we think the procedures and government showings required under FISA, if they do not meet the minimum Fourth Amendment warrant standards, certainly come close. We, therefore, believe firmly, applying the balancing test drawn from Keith, that FISA as amended is constitutional because the surveillances it authorizes are reasonable. [my emphasis]

Even in one of the only two FISA opinions (this from the Court of Review) that we’ve seen, then, the courts used the urgent threat of terrorism post-9/11 to justify searches that they found to be very close constitutional questions.

Terrorism was “the most serious threat” our country faces, the argument went, so this seeming violation of the Fourth Amendment was nevertheless reasonable.

Or at least close, a per curium panel including longtime FISA foe Laurence Silberman argued.

And in fact, this argument has always been built into the larger dragnet programs. Jack Goldsmith’s 2004 memo on the illegal program describes how it is premised on intelligence — gathered largely from interrogations of al Qaeda operatives — showing al Qaeda wants to attack in the United States.

As explained in more detail below, since the inception of [the program] intelligence from various sources (particularly from interrogations of detained al Qaeda operatives) has provided a continuing flow of information indicating that al Qaeda has had, and continues to have, multiple redundant plans for executing further attacks within the United States. Read more →

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