Congress to Allow Gonzales to Issue Surveillance Warrants

05/25/2011 12:10 pm ET
  • Shayana Kadidal Senior managing attorney at the Center for Constitutional Rights

A story has emerged this week that seems to have escaped the headlines in the major papers entirely: the Foreign Intelligence Surveillance Court, which had approved of some close variant on the NSA Program in January, changed its mind sometime in the last few months and decided the program was illegal under FISA. Only Newsweek and the blogosphere seem to have found the story.

A few hours after the January 17 announcement that the administration had convinced a single judge on the FISA court to issue a series of surveillance orders allowing the administration to carry out the NSA Program in almost exactly the same manner as before, I put up this post arguing that it was very likely these "innovative," "complex" new orders were very likely illegal -- that is, to the extent that these warrants "authorized the president or executive officials to determine on their own when there is probable cause ... are general warrants, outside the scope of what FISA allows judges to approve, and are illegal."

Now it appears another FISA judge agreed with me. Orders from the FISA Court typically last only for a maximum of 90 days, after which the administration must return to the court for renewal. However, those applications typically are rotated to different judges on the eleven-member court. The original orders were issued by a single judge on January 10, 2007; it has been a bit more than180 days since then, so the administration would have had to seek at least two renewals from different judges since then. Apparently, "[o]ne FISA judge approved this, and then a second one didn't," as one official source told the L.A. Times.

Great news, right? Yes, it likely means that a judge has finally ruled that the NSA program is illegal (although the whole FISA court process is secret, so only the administration and a few high-ranking Congressional intelligence committee leaders know for sure). And sure, that's quite satisfying given that our challenge to the Program, Center for Constitutional Rights v. Bush, has been passed around by the federal courts like a hot potato, and the ACLU's simultaneous challenge was dismissed on appeal on standing grounds, allowing the two republican judges to duck the merits (though the ACLU may yet appeal). But all thinking beings knew the program was illegal already.

Congress, on the other hand, still needs convincing.

A new bill, proposed by the administration and being rushed through both houses in the last week in an apparent deal with Democratic leaders, would allow the administration to set up whole programs of surveillance, without prior approval of the FISA court, so long as those programs operated under internal rules designed to capture communications where both parties are "reasonably believed to be outside of the United States." (One supposed "safeguard": such programs may only be carried out through a telecommunications company - as if AT&T and Verizon have our privacy interests at heart!) Who would get to authorize these programs of surveillance, lasting up to a year? Who else: Attorney General Alberto Gonzales.

That's right. The same trustworthy official who insisted that the single presidential order issued by the President after 9/11, authorizing the NSA to leave no American unheard, actually authorized not one program but a whole slew of separate programs. So that when Gonzales told Congress that "the" NSA Program was narrowly tailored at Al Qaeda suspects -- when in fact this week the papers have all reported that NSA engaged in massive data mining -- he wasn't lying because he was only talking about one of many types of surveillance programs authorized in that single order, the one admitted to by the administration in December 2005. (And all the rest, of course, are still so secret he can't even describe them to Congress.)

Certainly the stated purpose of the bill is to allow the continued interception of calls between two overseas callers that happen to travel through electronic switches inside the United States. (Currently, such calls are governed by FISA if they are intercepted in the U.S.) James Risen's book, published weeks after he and Eric Lichtblau broke the NSA story in the New York Times, revealed that many purely international calls - someone outside the U.S. calling another person outside the U.S. - route through circuits located in the United States. As odd as it may seem, with fiberoptic signals traveling at the speed of light, this is often the easiest route for calls and email to take. Thus, to give just one example, almost all calls from the Middle East to Asia route through the United States, rather than taking a geographically-direct line. Indeed, our government has encouraged this technological development because it puts the power to surveill foreign communications within the hands of American companies. (Before the fiberoptic era, some of these calls went thru satellites, and those signals could be picked up by government listening stations located outside of the US, thus skirting FISA.)

However, it's hard to imagine that the administration couldn't get FISA warrants for such calls if they really wanted to. The FISA court processed 4,248 applications from the administration in 2005-06, and rejected one of them (and that one only in part). The most likely reason NSA doesn't want to go thru FISA for even this mainly-international part of their eavesdropping programs is likely twofold: First, they may want to listen to a huge mass of international calls where they have absolutely no evidence that either of the overseas parties are linked to terrorism - not even enough to meet the easy FISA standard. And second, that broad brush may also be imprecise enough to inevitably gather in a decent number of calls with one or both ends inside the United States.

This conclusion is reinforced by reading between the lines of the FISA modernization bill proposed by Senators McConnell and Bond. This version has no sunset provision making the whole law automatically expire at the end of six months, as Sen. Rockefeller's proposal supposedly has (full disclosure: I haven't yet seen his version). Instead, after six months the FISA court gets to review any programs of surveillance the Attorney General has approved of, to see if the court thinks they are "reasonably designed" to capture communications of "person[s] reasonably believed to be outside of the United States." Between those two "reasonably"s is a vast margin for error, into which any number of domestic communications could be swept up. Again, that may very well be the goal here.

All of these "FISA modernization" bills are poorly thought-out and have been rushed through Congress in the last two weeks of the current session (despite the fact that some reports have the FISA court reversal happening several months ago). The wonderful folks at the Electronic Frontier Foundation have an action alert posted here, so you can call your local Congressfolk and let them know how you feel about replacing federal judges with the President's Consigliere, Alberto Gonzales.

Meanwhile, our legal challenge to the NSA Program is finally closing in on a decision. The new judge in the case will hear oral arguments next Thursday, August 9th, in San Francisco. Our latest brief, arguing that the case did not become moot after the January 10th FISA Court orders, is here.

Thanks for reading. Now go give your elected reps a piece of your mind!