A War Like No Other (30 page)

This chapter, “Warrantless Wiretapping,” was originally published in the fall 2012 issue of the
Yale Journal of Law and Policy,
before Edward Snowden’s flight to Hong Kong and Russia captivated the country and rekindled debate over the degree of trust the public should place in clandestine agencies tasked with intelligence collection. It was also published before the public became aware that the NSA had begun a massive collection of e-mail and cellular telephone “metadata” (that is, information about the e-mail and telephone calls other than their content, such as time, destination, and length). Yet the essay is nonetheless essential reading for those seeking to understand the scandal. What “Warrantless Wiretapping” sets out clearly, and what much of the commentary on the Snowden leaks has failed to grasp, is that the Obama administration’s electronic surveillance program, and the FISA court decisions that authorized them, were all but inevitable after the 2008 FISA Amendments.

Two aspects of the 2008 FISA Amendments discussed in the essay bear particular relevance to the current controversy. One is the provision that enables “blanket” authorizations for data collection, which facilitated the sweeping order issued by Judge Roger Vinson, sitting as a FISA judge, permitting the NSA to collect metadata on all phone calls within the systems of Verizon Wireless and other cellular carriers. (The disclosure of that order was among the first and most explosive of Snowden’s
leaks.) The other is the provision eliminating the traditional authority of the judge to scrutinize the factual predicate of warrant applications. This amendment diminished the FISA judge’s role to the almost clerical function of verifying that all the required “elements” of the application were present. Had the judiciary not been stripped of this important power in the 2008 FISA Amendments, one can imagine that the Obama administration would have been more restrained in its surveillance activities.

Stepping further back, “Warrantless Wiretapping” makes another important observation that has gone largely unremarked upon in the press: that Obama has perpetuated what is essentially a Bush administration counterterrorism policy, using legal authority passed by Congress at the urging of President Bush. As Fiss notes in his essay, Bush ultimately concluded that the minor inconvenience of FISA review was less onerous than the political cost of a “principled” assertion of unitary executive authority. Although Obama has never claimed that he has the unilateral authority to order electronic surveillance of domestic communications for the purpose of gathering foreign intelligence, he too has taken a maximalist view of his powers under the amended FISA statute and has, in fact, engaged in electronic eavesdropping beyond that contemplated by Bush.

In these respects, “Warrantless Wiretapping” adds yet another chapter to the story of how Obama, once a staunch defender of civil liberties, came to perpetuate, and maybe even expand, the excesses of Bush’s national security strategy, albeit in a manner that pays greater lip service to the importance of process and coordination with the other branches of government. But, as is often the case in Fiss’s writings, executive overreach is only half the story. The judiciary, in particular the Supreme Court, bears its own responsibility. As Fiss observes, Obama—like Bush before him—was able to obtain far-reaching surveillance authorizations under the FISA statute only because the Supreme Court
has failed to weigh in on the constitutionality of FISA in the first place. In the case of electronic surveillance, as with executive detention and extraordinary rendition, judicial silence and abstention have given the executive virtually unlimited powers in the pursuit of its counterterror objectives.

Chapter 9

WARRANTLESS WIRETAPPING

I
n recent decades, many changes have occurred in our system of communication, some quite startling, and yet the telephone continues to be an important part of that system. It is how we have conversations with friends, family, and business associates increasingly located at a distance. Admittedly, many of the exchanges that once took place on the telephone now occur through e-mails, especially when the purpose is to convey information, issue a directive, or render an opinion. We still turn to the telephone, however, when a conversation is needed, for the transmission of the human voice permits direct, highly interactive, and spontaneous engagement with others.

Engaging in a personal conversation is not like writing in a diary. We may assume that the thoughts or sentiments expressed in the conversation remain with the person with whom we are speaking, but that assumption may well be mistaken. This is so even in a face-to-face encounter. The person with whom we are speaking may turn around and share the contents of that conversation with others—in fact, he or she may be secretly recording the conversation for that very purpose. Although such
a risk is present in a conversation conducted over the phone, this mode of communication presents yet another threat to the privacy of a conversation, deriving from the fact that the conversation is being electronically transmitted. A third party may obtain access to that transmission, listen in, and record whatever is said.

In the twentieth century, as the telephone became ubiquitous and telephone conversations became more commonplace, the law increasingly sought to guard against the dangers of such interceptions by a third party (which, due to the technology initially employed to transmit telephone signals, became known as “wiretapping”). Starting in 1934, Congress prohibited private parties from ever wiretapping.
¹
Although there was a question about whether government officials were covered by this law,
²
in 1967 the Supreme Court construed the Fourth Amendment to limit the authority of federal officials to eavesdrop in this way, requiring them to go before a judge and obtain a warrant authorizing the wiretap.
³

The statutory prohibition against wiretapping by private parties remains unqualified and appears today as a fixed feature of the legal landscape. Yet the constitutional rule protecting the privacy of telephone conversations from government interceptions is now in a shambles. This turn of events is attributable in part to the reluctance of the Supreme Court headed by Warren Burger, then William Rehnquist, and now John Roberts to safeguard fully and forcefully the values protected by the Fourth Amendment. It is also attributable to the events of September 11, 2001, which generated enormous pressure to enlarge the powers of the executive in order to protect the nation, even to the point of sacrificing the right to privacy.

Bush’s Legacy

Soon after the terrorist attacks on September 11, President George W. Bush declared a “War on Terror” and gave concrete meaning to that declaration by launching a military campaign against al-Qaeda, the far-flung terrorist organization that was responsible for those attacks. He also invaded Afghanistan when that government, then controlled by the Taliban, refused to turn over Osama bin Laden and other leaders of al-Qaeda who were then harbored there.

In the context of this military campaign, President Bush, as commander in chief of the armed forces, issued a number of directives. Some of these orders reached far beyond the theater of armed conflict and had a direct and immediate impact on the quality of life in the United States. One of the most striking, issued in the fall of 2001, established the so-called Terrorist Surveillance Program, which directed the National Security Agency (NSA) to tap international telephone calls between persons in the United States and persons abroad who were suspected of having links to al-Qaeda or associated forces. The interception of these calls was not authorized by a warrant or any other form of judicial approval.

At its inception, the Terrorist Surveillance Program was hidden from public view, which, given that its purpose was to catch the unwary, is not all that surprising. On December 15, 2005, however, four years after it was instituted, the program was publicly disclosed by the
New York Times
and became the subject of a heated public controversy.
⁴
Although many objections were raised to the program, the principal one arose from the failure of the president to abide by the requirements of the Foreign Intelligence Surveillance Act (FISA).
⁵

FISA was adopted by Congress in 1978 in the wake of the revelations of a Senate committee, headed by Senator Frank
Church, about the far-reaching and largely uncontrolled surveillance activities of American intelligence agencies. As originally enacted, the statute required the executive to obtain permission from a special court—the Foreign Intelligence Surveillance Court—before tapping the phones of agents or employees of a foreign power. The statute decreed that the membership of the court was to consist of eleven sitting federal judges specially designated for this assignment by the chief justice of the United States. Each was authorized to act alone.
⁶
Their identities and their proceedings were both to be kept secret. The 1978 statute defined a foreign power to include not only a foreign nation but also a “group engaged in international terrorism.” The statute further provided that foreign intelligence information included information relating to “clandestine intelligence activities,” “sabotage,” “international terrorism,” and “the conduct of the foreign affairs of the United States.”
⁷
The act declared that the procedures that it established were to be the exclusive avenue for gathering electronic foreign intelligence.

Bush’s attorney general Alberto Gonzales defended the president’s refusal to abide by the procedures of the 1978 statute.
⁸
Gonzales claimed that the September 18, 2001, congressional resolution authorizing the use of military force against those responsible for the September 11 attacks had implicitly modified the provision of the 1978 statute that made it the exclusive procedure for intercepting the telephone calls of the agents of a foreign power. In Gonzales’s view, the 2001 resolution had removed any conflict between the Terrorist Surveillance Program and the 1978 FISA statute.

Gonzales did not stop at that point. He also denied that Congress had the power to interfere with the effort of the president to discharge his duties as commander in chief. Article II of the Constitution vests the president with the authority and responsibility to act as commander in chief, and he thus has, according
to Gonzales, the authority to override the provisions of any statute that, in his judgment, unduly interfere with the discharge of these duties. Congress cannot tell the president how to deploy the armed forces, and similarly, Gonzales continued, Congress cannot instruct the president in his efforts to gather intelligence needed for the successful completion of the military campaign against al-Qaeda and its allies.

This argument was part of a larger strategy of the administration, spearheaded by Vice President Dick Cheney and his chief of staff, David Addington, to enlarge—or, in their view, recover—the constitutional prerogatives of the president to act on his own. In fact, the administration’s position on the Terrorist Surveillance Program paralleled the position it had taken on the methods that were to be used in interrogating suspected terrorists or persons accused of having links to al-Qaeda. In signing into law the Detainee Treatment Act of 2005, for example, Bush took issue with the portion of the act that banned torture.
⁹
In his signing statement, Bush underscored the failure of the statute to provide a remedy to enforce the ban on torture and then went on to declare that he would not let it interfere with the proper discharge of his duties as commander in chief. He issued this statement on December 30, 2005, soon after the
New York Times
disclosed the existence of the secret wiretapping program. That coincidence lent further prominence to the attorney general’s argument that, notwithstanding the purported conflict with the 1978 FISA statute, the order establishing the Terrorist Surveillance Program constituted a lawful exercise of the president’s power as commander in chief.

On the issue of wiretapping, it is not clear who had the better of the argument in resolving the conflict between the president and Congress. Article II, which enumerates the powers of the president, declares that he is commander in chief of the armed forces, but the Constitution also grants Congress war powers.
Article I gives Congress the authority to declare war, make general regulations governing the armed forces, and appropriate the funds for the military. In the domain of war, many of the powers of the president and Congress are shared or overlapping, and each branch can advance a claim for primacy when there is a conflict. The president speaks for the nation. Members of the Senate and the House of Representatives are more likely to feel the pull of the local constituencies that elect them, though those local ties may well enhance their accountability to electors and thus strengthen their authority to speak on behalf of the people.

In the end, the nation was saved from the difficulties inherent in resolving the conflict between the president and Congress. In January 2007, after a yearlong public debate about the Terrorist Surveillance Program, Attorney General Gonzales changed his strategy. He turned to the FISA court and got what he wanted. In a letter to the chairman and the ranking minority member of the Senate Judiciary Committee, Gonzales reported that on January 10, 2007, a judge on the FISA court had issued orders—arguably, ones that might be characterized as “blanket” orders—authorizing the wiretapping covered by the Terrorist Surveillance Program. As Gonzales put it, a FISA judge had issued “orders authorizing the Government to target for collection international communications into or out of the United States where there is probable cause to believe that one of the communicants is a member or agent of al-Qaeda.”
¹⁰
Gonzales also said that, in light of this turn of events, the president had determined that there was no need to continue the Terrorist Surveillance Program, although he affirmed his belief that the program “fully complies with the law.”