If You Only Read One Thing About the NSA Spying Controversy . . .

[J. Noble]

>The objectives of the surveillance program, as described in news 
>reports, seem laudable. The government should be running to ground 
>the contacts listed in a suspected terrorist's cell phone, for 
>example. What is troubling is that this domestic spying is being 
>done in apparent contravention of FISA, for reasons that still are 
>not clear. . . .

If the reasons aren't clear, maybe it's because the contravention of 
FISA isn't all that apparent. 50 USC 1801(f) provides a four-part 
definition of "electronic surveillance." If the NSA program monitors 
only international communications, the interceptions are covered by 
FISA only if NSA "intentionally targets" communications to or from a 
"particular, known United States person who is in the United States," 
per sec. 1801(f)(1); or the "acquisition occurs in the United 
States," per sec. 1801(f)(2).

There's no reason that the acquisition of an international 
transmission ever has to occur in the United States. As pointed out 
in the L.A. Times article cited by Prof. Thai, "the NSA conducts such 
'wholesale' surveillance continuously almost everywhere else in the 
world. It does so by using a sprawling network of land-based 
satellite transponder stations and friendly foreign intelligence 
agencies and telecommunication companies to collect millions of phone 
calls, e-mails and other communications." The article reports that 
computer security guru "[Bruce] Schneier and others suspect that the 
NSA may be turning its satellites toward the United States and 
gathering vast streams of raw data from many more people than 
disclosed - potentially including all e-mails and phone calls from 
the United States to certain other countries." But that doesn't bring 
the interception within 1801(f)(2) unless the acquisition occurs at 
Fort Meade instead of any of the other NSA listening posts around the 
world or in orbit above it. The L.A. Times also reports that "Leading 
telecommunication companies have ... given the NSA access to 
electronic switches that connect U.S. and overseas communications 
networks." This presumably refers to the switches that connect to 
undersea trans-Atlantic cables that are owned by carrier consortiums. 
These cables have switches at both ends and repeaters spaced across 
the ocean. However willing the telecom companies are to cooperate, 
FISA's civil liability provisions would provide them with an 
incentive to suggest that NSA set up shop in London rather than Long 
Island, or on a ship floating atop a repeater in the middle of the 
Atlantic; and the President and NSA would have to be looking for a 
fight (and public disclosure) to put up a fuss.

If the President has only expanded NSA's indiscriminate data-mining 
to cover communications to and from the U.S., acquired at facilities 
located outside the U.S., I'm only surprised that they weren't doing 
that already. If the President has authorized targeted surveillance 
of "known United States person[s]" covered by 1801(f)(1) in disregard 
of FISA's warrant requirement, the distinction he draws between 
detection and surveillance doesn't make any sense, and the only 
obvious explanation is that they have suspicions that don't amount to 
probable cause that would allow them to get a warrant within 72 hours 
after they start the targeted surveillance. They still have a 
defense, though. According to a 1980 NSA Signal Intelligence 
Directive, "A person known to be currently in the United States will 
be treated as a U.S. person...." 
http://cryptome.org/nsa-ussid18-80.htm That might be an over-generous 
presumption in the wake of 9/11; and it wouldn't be hard to construe 
the definition to exclude the targeted surveillance of someone in the 
U.S. until he's "known," rather than presumed, to be a "United States 
person" -- a citizen or legal resident. It's also not hard to imagine 
an NSA shift supervisor saying "Let's keep track of this guy -- we 
can get his birth certificate and check with Immigration later." If 
that's what they're doing, the claim to authority under Article II 
and the AUMF, lame as it is, sounds better than "If he's got 4th 
Amendment rights, and if we decide to grab him, and unless we decide 
he's an enemy combatant, we'll deal with the motion to suppress when 
we get it." It would also explain how somebody got away with giving 
cryptome.org the 1980 NSA directive, which would be treasonous if it 
wasn't misleading.

Ms. Spaulding's mystified tone suggests another possibility. The only 
evidence I've seen that the NSA is violating FISA is the President's 
seemingly reluctant (did the stonewall last even 24 hours?) but 
wholly unnecessary confirmation of an unsourced leak that he was 
ignoring FISA but that offered no particulars. Ms. Spaulding makes 
the sensible point that "It's hard to imagine that the terrorists do 
not already assume that we try to listen to their cell phone 
conversations." But if you wanted to disrupt communications between 
overseas terrorist organizations and cells located in the U.S., you'd 
want them to not only assume that we try to intercept their 
communications, but to believe that we /are/ intercepting their 
communications, and that the President won't let some sentimental 
regard for civil liberties, which they ridicule, to tie his hands. 
The President's condemnation of the leak as harmful to national 
security can't be squared with his confirmation that it's true. The 
leak doesn't affect the NSA's ability to intercept communications one 
whit. The only thing it affects is any assumption by the terrorists 
that the President is playing by rules that are to their advantage, 
and their imagined assessment of NSA's capabilities.

John Noble


At 3:39 PM +0000 12/25/05, marty.lederman at comcast.net wrote:
>. . . it probably ought to be 
><http://www.washingtonpost.com/wp-dyn/content/article/2005/12/23/AR2005122302050.html>this 
>piece by Suzanne Spaulding, former assistant general counsel at the 
>CIA, general counsel for the Senate and House Intelligence 
>committees, and executive director of the National Terrorism 
>Commission (1999-2000).
>
>Excerpt:
>
>The objectives of the surveillance program, as described in news 
>reports, seem laudable. The government should be running to ground 
>the contacts listed in a suspected terrorist's cell phone, for 
>example. What is troubling is that this domestic spying is being 
>done in apparent contravention of FISA, for reasons that still are 
>not clear. . . .
>
>Perhaps the administration did not believe that these wiretaps would 
>meet the FISA standard, which requires the government to have 
>probable cause to believe that the target of the surveillance is an 
>agent of a foreign power, which includes terrorists and spies. . . .
>
>[I]f administration officials believed they faced a scenario in 
>which the FISA standard could not be met, they could have sought to 
>amend the statute, as they have done several times since the law's 
>enactment in 1978. Several such amendments, for example, were 
>contained in the 2001 Patriot Act.
>
>The administration reportedly did not think it! could get an 
>amendment without exposing details of the program. But this is not 
>the first time the intelligence community has needed a change in the 
>law to allow it to undertake sensitive intelligence activities that 
>could not be disclosed. In the past, Congress and the administration 
>have worked together to find a way to accomplish what was needed. It 
>was never previously considered an option to simply decide that 
>finding a legislative solution was too hard and that the executive 
>branch could just ignore the law rather than fix it.
>
>Moreover, the administration has yet to make the case for keeping 
>this significant policy change secret for four years. It's hard to 
>imagine that the terrorists do not already assume that we try to 
>listen to their cell phone conversations (after all, it is well 
>known that FISA allows such wiretaps) or that we have technology to 
>help us search through reams of signals. (Check out the Wikipedia 
>definition of Echelon on the Internet.) So wh! at do the terrorists 
>learn from a general public discussion about the legal authority 
>being relied upon to target their conversations? Presumably very 
>little. What does the American public lose by not having the public 
>discussion? We lose the opportunity to hold our elected leaders 
>accountable for what they do on our behalf.
>
>Attorney General Alberto Gonzales claims that the NSA program did 
>not violate the law because FISA only requires a warrant "unless 
>otherwise authorized by statute" and that the congressional 
>resolution authorizing the use of force after the attacks of Sept. 
>11, 2001, somehow authorized this circumvention of FISA's rules. 
>FISA does provide for criminal penalties if surveillance is 
>conducted under color of law "except as authorized by statute." This 
>is a reference to either FISA or the criminal wiretap statute. A 
>resolution, such as the Use of Force resolution, does not provide 
>statutory authority. Moreover, FISA specifically provides for 
>warrantless surveillance for up to 15 days after a declaration of 
>war. Why would! Congress include that provision if a mere Use of 
>Force resolution could render FISA inapplicable?
>
>The law clearly states that the criminal wiretap statute and FISA 
>are "the exclusive means by which electronic surveillance . . . and 
>the interception of domestic wire, oral, and electronic 
>communications may be conducted." If these authorities are 
>exclusive, there is no other legal authority that can authorize 
>warrantless surveillance.
>
>Courts generally will not view such a clear statutory statement as 
>having been overruled by a later congressional action unless there 
>is an equally clear indication that Congress intended to do that.
>
>The administration's ultimate argument is that "the president has 
>the inherent authority under the Constitution, as 
>Commander-in-Chief, to engage in this kind of activity." This is the 
>same argument outlined in the infamous torture memo, which concluded 
>that the president can effectively ignore any statute that appears 
>to infri! nge on this broad authority. That memo was withdrawn after 
>it became p ublic and was roundly criticized. The legal reasoning 
>behind the arguments, however, has never been repudiated and appears 
>to have resurfaced here.
>
>We cannot know for certain how the Supreme Court would rule on the 
>legitimacy of the spying program. However, the court rejected 
>President Harry Truman's similar claim of broad presidential power 
>in seizing control of the nation's steel mills to avert a strike 
>during the Korean War. The court, in a 6-to-3 ruling , stated that 
>the president's inherent authority is at its weakest in areas where 
>Congress has already legislated. It ruled that to find inherent 
>presidential authority when Congress has explicitly withheld that 
>authority -- as it has in FISA -- "is not merely to disregard in a 
>particular instance the clear will of Congress. It is to disrespect 
>the whole legislative process and the constitutional division of 
>authority between president and Congress."
>
>The administration may be counting on fear of another terr! orist 
>attack in asserting this unprecedented authority. But if President 
>Bush can simply ignore laws that he thinks are unconstitutional, 
>without getting a court ruling or having genuine consultations with 
>Congress, then why bother to work so hard at getting the Patriot Act 
>provisions right, or the McCain torture amendment, or any other laws 
>related to terrorism? And where does it stop? Justice Sandra Day 
>O'Connor rejected the administration's claim of unchecked power in 
>the 2004 Hamdi case, in which the government argued that the courts 
>could not review the legality of enemy combatant detentions. She 
>wrote, "We have long since made clear that a state of war is not a 
>blank check for the president when it comes to the rights of the 
>Nation's citizens. . . . Whatever power the United States 
>Constitution envisions for the Executive in its exchanges with . . . 
>enemy organizations in times of conflict, it most assuredly 
>envisions a role for all three branches when individual libe! rties 
>are at stake."
>
>
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