01/17/2007 05:41 pm ET | Updated May 25, 2011

Reports of the NSA Program's Death: Greatly Exaggerated?

A few minutes ago, the New York Times reports that "The Bush administration, in what appears to be a concession to its critics, said today it will allow an independent court to monitor its warrantless electronic-eavesdropping program." While it would be great if the current administration had in fact decided to accept the rule of law, the legitimacy of Congressional statutory regulation of wiretapping, and the role of courts in enforcing both the wiretapping statutes and the Fourth Amendment, I am immensely skeptical that that is what has happened.

The main evidence thus far is contained in a letter from Attorney General Gonzales to Senators Leahy and Specter. It reads:

"I am writing to inform you 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. As a result of these orders, any electronic surveillance that was occurring as part of the Terrorist Surveillance Program [NSA Program] will now be conducted subject to the approval of the Foreign Intelligence Surveillance Court.

In the Spring of 2005--well before the first press account disclosing the existence of the Terrorist Surveillance Program--the Administration began exploring options for seeking such FISA Court approval. Any court authorization had to ensure that the Intelligence Community would have the speed an agility necessary to protect the nation from al Qaeda--the very speed and agility that was offered by the Terrorist Surveillance Program. These orders are innovative, they are complex, and it took considerable time and work for the Government to develop the approach that was proposed to the Court and for the Judge on the FISC to consider and approve these orders."

Since these court orders are "innovative," "complex," and - Gonzales forgot to mention - totally secret, we have no way of knowing what they contain (yet). But my reading of the first paragraph of Gonzales' letter is that the Administration went to one hand-picked, friendly FISA judge (there are 11 of them on the court, and the government can ordinarily seek a surveillance warrant from any one it chooses), and asked for approval to carry out the NSA program in exactly the fashion they have been carrying it out thus far.

That is, the administration did not follow the normal, lawful procedure for a FISA warrant, which is to bring the Court evidence creating probable cause to suspect a surveillance target of involvement in terrorism, and get an order allowing surveillance of that particular suspect's communications. Rather, it appears possible from this letter that Gonzales asked for approval to carry out a program of surveillance against anyone the administration thinks is associated with al Qaeda or terrorism. (Recall that Arlen Specter's last bill, a so-called compromise with the administration that was likely drafted by it, would have allowed for FISA court approval of whole programs of surveillance.) In this case, the program sounds like one where the executive--not a court--decides when there is enough evidence to create probable cause to suspect someone of involvement in terrorism. As with the existing NSA Program, nothing in Gonzales' letter indicates that, under the January 10th order, the administration ever needs to go to a court for an impartial opinion in each individual case, as the law and the Constitution require.

Of course, approving of such a broad, unchecked program of executive spying is entirely outside the power of the FISA court under the FISA statute; it would essentially constitute a "general warrant" of the sort that helped inspire the colonists to revolt against King George back in 1776 . But that doesn't mean that an administration-friendly pro-executive activist judge might not have done exactly that on January 10th. In other words, Gonzales may simply have convinced a FISA Judge to rubber-stamp the program as a whole--something the judge was not empowered under the FISA statute to do.

The timing of this announcement is very suspect. Beyond the fact that the new Congress seems ready to hold hearings on the NSA Program, a review of the program is pending in the Court of Appeals for the Sixth Circuit in the ACLU's case, with oral argument scheduled for the end of January. Is today's confusing letter designed to forestall or delay review by the federal courts? The administration went through a number of last-minute maneuverings to avoid Supreme Court review in the Padilla case, and I wouldn't be surprised one bit if exactly the same is happening now.

That's not to say our cases would be moot if the administration has ended the NSA Program as we knew it. There is a lot of backwards-directed relief we are seeking, including finding out whether we were subject to surveillance under the program. And of course, we have no idea if these court orders are legal under the statute -- again, if they authorized the president or executive officials to determine on their own when there is probable cause, then the court orders are general warrants, outside the scope of what FISA allows judges to approve, and are illegal.

We brought our lawsuit because we believe courts should always have a role in supervising surveillance by the executive branch, and only time will tell whether the administration has genuinely come to the same conclusion. But don't bet on it just yet.

--January 18, 2007
(from Bangalore, India)

UPDATE: Glenn Greenwald agrees.

UPDATE: A rather unenlightening press briefing by Tony Snow is here -- it opens up more questions than it answers.

UPDATE: Another story from the Times here, in which unnamed Justice Department officials "strongly suggested that the orders secured from the court were for individual targets, but they refused to provide details of the process used to identify targets -- or how court approval had been expedited -- because they said it remained classified." Does this signal that the DOJ will refuse to turn the actual FISA orders over to the relevant members of the new Congress? More from the Times: "Justice Department officials would not describe whether the court had agreed to new procedures to streamline the process of issuing orders or accepted new standards to make it easier for the government to get approval to monitor suspect e-mail and phone communications." Nothing in this directly contradicts what I've written above; if they were seeking individual approval, don't you think they'd say so? Finally, the Times reports this from Heather Wilson, who was briefed on the "new" Program: "Ms. Wilson, who has scrutinized the program for the last year, said she believed the new approach relied on a blanket, "programmatic" approval of the president's surveillance program, rather than approval of individual warrants."

Fourth Amendment scholar Orin Kerr's take here.