The Rights of the People (41 page)

Intelligence officials told Eric Lichtblau vaguely that the NSA was ordered to shut down certain unspecified techniques using “data-mining to trace communications patterns across U.S. borders,” and that a twenty-item checklist was developed to assess whether a person could legitimately be designated for eavesdropping.
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Whatever these mysterious changes, they satisfied Comey enough to get his signature on the reauthorization, and he remained in office nearly a year and a half longer. However, Cheney blocked Philbin’s promotion to deputy solicitor general,
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despite Philbin’s extremely conservative credentials: He had clerked for the right-wing federal appeals court judge Laurence Silberman
and had written two legal opinions later overturned by the Supreme Court, one supporting the president’s “inherent authority” to establish military commissions without congressional statute, the other arguing that Guantánamo Bay prisoners had no habeas corpus rights in federal courts.
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How was the surveillance revised? Speculation within Washington legal circles took two paths: Either Comey was a stickler for detail and had drawn some internal procedural line that previously had been crossed, or the monitoring had been aimed at purely domestic communications, probably wholesale interception of e-mails inside the United States as well as those involving at least one party overseas.

In any event, the change that erased Comey’s objections did not satisfy one of the FISA judges, James Robertson, who quietly resigned from his FISA responsibilities more than a year later, after the
Times
broke the story about the surveillance. Only the two judges who had presided over the Foreign Intelligence Surveillance Court during the period had been briefed by administration officials on the spying; most of the others hadn’t known a thing about it.
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Robertson, a federal district court judge in Washington, D.C., pointed to two concerns: First, he did not want to be part of a system in which the executive branch could either choose or reject judicial oversight according to the president’s fancy; the Constitution did not make going to court optional. Second, Robertson felt he could not intelligently decide whether FISA warrant applications had sufficient probable cause if he didn’t know the source or the reliability of the information; he and other judges were afraid that some applications might be tainted by having originated in the warrantless NSA monitoring. The presiding judge in 2004, Colleen Kollar-Kotelly, complained about just that, according to the
Times
, worrying that in using information collected secretly by the NSA, the government may have misled the court about its sources in warrant requests. The administration had even concealed the NSA as the origin of intelligence information distributed to the CIA and the FBI, James Risen reported.
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Judge Robertson, whom Clinton had appointed in 1994, had joined the FISA court as a dubious volunteer. “I was skeptical of the whole FISA process. I wanted to see how it went on,” he said. And until the disclosure of the NSA surveillance, “I thought the FISA process had a lot of integrity. People took it very seriously.” The Justice Department “had careful, dedicated, patriotic people. I felt good about the process. It had a lot of integrity.”

But it also had a lot of paperwork, he conceded, which may have made it an undesirable route for investigators, especially those in a hurry. “I think there’s some merit in that argument that FISA warrants have become too cumbersome,” he said. “The procedure could be leaner.” That was the view of senior intelligence officials, who regarded the process as “too cumbersome and time consuming to address the current threat,” according to the report by the five agencies’ inspectors general. “CIA officials stated that FISA required extensive paperwork and high-level reviews and approvals,” and complained that the FISA court “did not always approve FISA applications in a timely manner.”
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This seemed a product of the court’s reluctance to turn down requests—official records show hardly any rejections: Only 2 of 13,102 applications were modified in the first twenty-two years of the secret court’s existence; more were later, but still just 179 of 5,645 in 2003 and 2004, with at least 6 rejected. Subsequent years showed similar patterns: 86 of 2,370 applications modified in 2007, for example, but just 3 denied, and in 2008 just 1 rejection out of 2,095.
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Instead, judges apparently increased demands on applicants. “Over twenty, thirty years, as the court wasn’t comfortable with something, instead of saying no, they asked for more information,” said Stewart Baker, assistant secretary for policy at the Department of Homeland Security. Each application grew from a couple of pages until the thickness of “the paperwork required to get a FISA order now measures in inches.”

But that seemed sensible to Royce Lamberth, presiding judge of the FISA court from 1995 to 2002. “The judges have been approving these surveillances because, really, they’re so well scrubbed by the time the court sees them,” he told the American Library Association in 2007. “They are the kinds of things we ought to be doing for the good of our nation. They are the kinds of surveillances that are needed. You would expect if the government is doing its job right, we should be approving what they’re doing.… I have not seen any proposal for a better way of doing it. I have seen a worse way, and that’s what the president has been doing with the NSA program.”

The courts should have oversight, he argued. “There’s nothing wrong with letting the judges take a peek,” he said. “We’re only taking a peek, but we’re making sure there’s not some political shenanigans going on or some improper motive for the surveillance, but some valid purpose for it. Whether we’re approving ninety-nine percent or not, the fact they have to submit them to us makes them honest.”
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The approval system doesn’t have to move slowly, as Lamberth’s experience
demonstrated. Even before the urgency following 9/11, Lamberth got calls in the middle of the night to sign orders. First a Justice Department lawyer and an agent—usually from the FBI but sometimes from the NSA or the CIA—would stop by the attorney general’s house to get a signature, then proceed to Lamberth’s home, where gaps that the judge might discern could be filled. “The agent’s before me,” Lamberth noted. “I can question the agent. I can read their tone. I can ask any question I want to ask, can modify anything, swear the agent first so they’re under oath. Then I rule. Almost always if I wanted more information, the agent had it.”

When two American embassies were bombed in Africa, Lamberth recalled, “We were pretty sure it was bin Laden from the beginning. We had five targets the FBI wanted to go up on that night. They reached my house at three o’clock in the morning, I signed the warrants for those applications. Those five wiretaps turned out to be very productive. One of them was bin Laden’s secretary, who was a car tire dealer in Texas—Arlington, Texas. He later went to trial in New York and was tried and convicted.”
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An emergency order was sought in 1999, when a would-be terrorist, Ahmed Ressam, was stopped by Customs as he drove from Canada into Washington State with a plan to attack the Los Angeles airport at the beginning of the new millennium. In his wallet agents found a scrap of paper with a phone number. “The FBI came to me the same night for a warrant for that number,” Lamberth said. “I gave it to them. It led to an apartment in New York, and a tap on that apartment led to a cell in Montreal.… That’s the kind of little thing that can lead to a real intelligence coup, and that was a real intelligence coup.”

Knowing that flurries of e-mail typically follow an attack, intelligence officials have to move quickly to pick up the traffic. That’s what they did on September 11, 2001.

Lamberth was driving that morning from the dentist to the federal courthouse to preside over an ongoing murder trial. He was near the Pentagon when the plane hit, enveloping his car in smoke. He couldn’t move. Federal marshals couldn’t reach him. But he had his cell phone, and he and other judges “started approving FISA coverages on everybody we could dream up who might know anything,” he said. “By the time the FBI got to me in my car, I had already approved five FISA coverages that morning. It was quite a day. By the time I went home that night, we had every hijacker identified.” And that was done according to law through the FISA court, before the new powers of the Patriot Act. “The courts
can respond in times of emergency,” Lamberth declared, “and we did, we have.”

Yet the Bush administration thought otherwise and stretched quite far to reach legal justifications for using NSA surveillance to evade FISA judges. Perhaps mirroring John Yoo’s classified memo, administration lawyers fell back, first, on an old constitutional argument used prior to FISA’s enactment: that Article II, Section 2, designating the president as commander in chief, gave him “inherent authority,” in the Justice Department’s words, “to conduct warrantless surveillance of enemy forces for intelligence purposes to detect and disrupt armed attacks on the United States.”
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The concept was endorsed almost verbatim by the three-judge Foreign Intelligence Surveillance Court of Review, which had never sat until November 2002, when its initial ruling cited “the president’s inherent constitutional authority to conduct warrantless foreign intelligence surveillance.”

Second, the administration relied on the Authorization for Use of Military Force, passed by Congress one week after 9/11, which permitted 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.”
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Officials observed that electronic intercepts, known in the business as “signals intelligence,” were fundamental to conducting any war.

The Justice Department claimed that this combination of constitutional and congressional authorities put the president at “the zenith of his powers” according to the formula devised by Justice Robert Jackson in 1952. But it seemed a perverse argument, since Jackson was going the opposite way, against expansive presidential authority. He was concurring in the Supreme Court’s rejection of President Truman’s attempt during the Korean War to seize the nation’s steel mills on the eve of a planned strike.
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No congressional authorization existed for such seizure, Jackson found, only three statutes on taking private property that were not cited by Truman and contradicted his actions. “When the President takes measures incompatible with the expressed or implied will of Congress,” Jackson wrote, “his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.”

And those were the precise circumstances of the NSA surveillance, argued fourteen eminent constitutional scholars—“circumstances,” quoting Jackson’s words, “which leave presidential power most vulnerable to attack and in the least favorable of possible constitutional postures.” Far
from authorizing warrantless domestic eavesdropping, the scholars said in an open letter, Congress had explicitly banned it when passing FISA in 1978.
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“In the years before FISA was enacted,” they wrote,

As a general principle, the scholars noted, constitutional authority can be regulated by Congress, as it had done in FISA, which “specifically allows for warrantless wartime domestic electronic surveillance—but only for the first fifteen days of a war.”
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Bush sought neither judicial review nor a change in the law until the secret surveillance program was exposed by the
Times
. Then, in January 2007, faced with the possibility of congressional action, he volunteered to get blanket authorizations from the FISA court for the NSA eavesdropping. How that worked—whether the court required particular and targeted surveillance or permitted broad sweeps for long periods—was kept secret. But Attorney General Alberto Gonzales indicated that a general authorization was provided, writing that “on January 10, 2007, a Judge of the Foreign Intelligence Surveillance Court 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 or an associated terrorist organization.”
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The court reportedly narrowed its authorization that spring.

That dissatisfied intelligence gatherers, who wanted carte blanche to avoid the FISA court when both parties were abroad, even if their conversations or messages passed through the United States. The issue arose because of a change in technology. A great deal of the global communications traffic among foreign countries is relayed by equipment in the United States, where FISA applies.