Over the weekend, the Washington Post reported that back in 2011, the Obama Administration secretly convinced the Foreign Intelligence Surveillance Court to allow them to peruse the NSA’s massive database of communications for information on American citizens.
What’s the big deal?
Well, there is this thing called the Fourth Amendment that our founding fathers dreamed up to prevent the use of general warrants. Few things ticked colonial Americans off more than the British claim that their special search warrants gave them unlimited authority to search for whatever they wanted, whenever they wanted. So, when it came time to list the rights that the U.S. would guarantee its citizens, requiring government officials to get warrants – not only supported by probable cause but “particularly describing the place to be searched, and the persons or things to be seized” – was high on the list.
How does this pertain to the NSA’s massive database of communications? Well, if an American’s communication is in that database, odds are it was seized without a warrant.
You see, back in 2006 (after the NSA was caught conducting a massive warrantless wiretapping program) the NSA argued that having to get a warrant every time it wanted to review a communication that involved an American citizen hurt its ability to track terrorists in real time. Because it meant that every time a terrorist made a call or got an email, it had to stop and figure out who was on the other end and whether or not they were an American citizen before they could review it.
Congress was sympathetic to this argument and passed the FISA Amendments Act, which said that the NSA could not intentionally target an American citizen without a warrant, but they wouldn’t get in trouble if they unknowingly collected an American’s communications in the course of tracking a foreigner and, you know, operated within the spirit of the Fourth Amendment. I envisioned this to work a little like a “Chinese wall” in which the NSA can collect those communications, but they have to pretend they aren’t there. (I know, I watch too much crime drama)
Well, the Obama administration doesn’t see it that way. As Ellen Nakashima revealed, the Obama administration believes that accidentally recording an American’s phone conversation is just as good as getting a warrant to collect those conversations and they have been using the communications they accidentally collect to target American citizens without a warrant.
[I think it’s worth noting that not only does this seem inconsistent with the Fourth Amendment and basically flies in the face of the President’s promise that “If you’re a U.S. person, then NSA is not listening to your phone calls and it’s not targeting your emails unless it’s getting an individualized court order,” it’s a reversal of protections put in place by the Bush Administration, which wasn’t exactly known for it’s respect for the fourth amendment.]
But, somehow, that isn’t what I found most infuriating about the Washington Post story. What I found most infuriating were the comments the story includes from Alex Joel, the ODNI’s civil liberties protection officer and ODNI's General Counsel Robert S. Litt. Both seem to argue that there was no good reason to require the government to get a warrant to search the database. In fact, the ODNI’s civil liberties expert (you know, the man we’d expect to have the fourth amendment tattooed close to his heart) suggests the only reason the warrant protections had been put in place was “to remain consistent with NSA policies and procedures that NSA applied to other authorized collection activities.”
In an interview with the Post, Litt explains that they asked the court to allow them to search for Americans’ communications without a warrant because “We wanted to be able to do it.” He goes on to explain:
“If we’re validly targeting foreigners and we happen to collect communications of Americans, we don’t have to close our eyes to that,” Litt said. “I’m not aware of other situations where once we have lawfully collected information, we have to go back and get a warrant to look at the information we’ve already collected.”
Joel gave hypothetical examples of why the authority was needed, such as when the NSA learns of a rapidly developing terrorist plot and suspects that a U.S. person may be a conspirator. Searching for communications to, from or about that person can help assess that person’s involvement and whether he is in touch with terrorists who are surveillance targets, he said.
Yes, I know two more Intelligence Community officials justifying the IC’s actions in a long line of Intelligence Community officials justifying the IC’s actions doesn’t seem like a big deal. But what I found so infuriating about these justifications coming from these particular officials is that these officials are the ones who are supposed to speak up when the IC suggests doing something that violates the law and/or civil rights. Intelligence Officials are always going to want as much authority as they can get their hands on, but these are the guys who are supposed to reign them in. They're the ones who are supposed to mention the Fourth Amendment when someone at their agency says “Wouldn’t it be great if we didn’t need a warrant to search for Americans in the NSA database? " (Mr. Litt is also the guy who’s supposed to advise the ODNI against lying to Congress vs. whatever it is he did when that happened.)
My guess is the ODNI sent these guys to talk to the press because they thought their titles would somehow convince us that Obama Administration actually took the law and civil liberties into consideration when they made the decision to pursue this authority (outside of the democratic process.) But really, their comments do an awesome job of demonstrating their incompetence.
I can come up with more examples, but here are the top 5 things that I believe these ODNI officials get wrong in just this one Washington Post story (and the story isn’t even that long.)
1. They confuse Intelligence Community officials with policymakers. This appears to be a common problem with Intelligence Community officials these days, but as the Director of National Intelligence, Jim Clapper, himself testified before Congress in 2011, the IC is supposed to give policymakers the information they need to make the best possible policy decisions. Which is basically the opposite of hiding information from policymakers, so they won’t be tempted to interfere in the policy decisions the IC makes for itself.
Clapper’s statement (if you were interested):
“The Intelligence Community is fully committed to arming policymakers, warfighters, and law enforcement officers with the best intelligence and analytic insight we can provide…to enable them to take the actions and make the decisions that will protect American lives and American interests, here and around the world.”
2. They think hypothetical evidence is as good as actual evidence. Yes, Joel’s example of a “rapidly developing terror plot” in which a “U.S. person might be a conspirator” sounds consistent with 24's version of fighting terror, but that’s not the same as actual evidence that the NSA needs this authority to keep Americans safe. If the IC can’t hold up at least one, actual example of why they need this authority, then maybe they shouldn’t have the authority.
3. They claim they needed the ability to do something the law already gave them the ability to do. So, apart from not holding up any actual evidence that the NSA should be allowed to target Americans in the database made possible by a law that specifically prohibits the targeting of Americans, it turns out that FISA already had the IC’s hypothetical needs covered. FISA says, in an emergency situation, the NSA can get judicial approval for surveillance after the fact. i.e. the NSA has the authority to chase a “rapidly developing terror plot” in which a “U.S. person might be a conspirator” without having to apply for a warrant mid-crisis. They just need to go back and comply with the fourth amendment when the crisis is over. One would think the ODNI’s top lawyer would be aware of that. But, then again, this isn’t really about the NSA not being able to get a warrant quickly enough, is it? Rather, it seems, the NSA just doesn’t like having to get warrants.
4. They leave out the part where FISA gives them the authority to spy on people who aren’t terrorists. If you haven’t noticed, IC officials are extremely fond of making it seem like everything they do is about terrorism. As in, the only reason they would ever want to read a foreigner’s emails or listen to his or her phone calls is if that foreigner has direct connections to terrorism. They do this for a reason. Terrorists are scary (like really scary) and no one is going to be all that sympathetic to an American communicating with a terrorist. But, that’s just IC spin.
In reality, the Intelligence Community collects all kinds of intelligence for all kinds of reasons that have nothing to do with terrorism. (A quick glance at one of their annual World World Wide Threat Assessments will give you an idea of the breadth of their intelligence gathering.) So, when they say they need this authority to assess an American’s involvement in a terrorist plot and whether or not they are in touch with “terrorists who are surveillance targets,” they leave out the fact that the database is also full of communications Americans may be having with foreign officials, business associates, reporters, etc. etc.” Maybe they are only using the database to query Americans who they believe might be potential terrorism suspects, but since they gave themselves the authority, it appears to be up to them when and how they use it.
5. They equate “other situations” with FISA situations even though the two have little in common. So, it’s true that on the criminal side of surveillance law, communications that are lawfully obtained for one purpose can be used for another purpose. (i.e. A Baltimore prosecutor can prosecute Stringer Bell with communications obtained during the course of investigating Avon Barksdale, even if Barksdale was the only one named in the warrant.)
You can’t, however, compare this to information collected under FISA because unlike criminal surveillance law, which guarantees that all information collected is connected to a warrant, the NSA doesn’t need a warrant to collect a foreigner’s conversations.
To continue the Wire analogy (which I assume you are a fan of if you are reading my blog. If you aren't and this convinces you to go watch the Wire - you can thank me later) the Baltimore PD had to demonstrate probable cause to get a wire up on Avon before it could come into possession of his conversations with Stringer and since the BPD’s warrant only allowed it to record conversations that pertained to their investigation of illicit activities, there’s probably cause to assume that anyone Avon talked to about his drug business was also involved in his drug business.
A similar assumption can not be made about Americans who have their communications swept up in the NSA’s massive database, because the NSA does not need a warrant to target a foreigner’s communications. In fact, FISA gives them the authority to target basically any foreigner it’s interested in knowing more about. So, basically the only thing you can assume about Americans who have had their communications swept up in the NSA database is that they were in communication with a foreigner (although that’s not always true.) And, the last I checked, talking to a foreigner wasn’t a crime.
Regardless, the IC’s top lawyer either doesn’t understand the law or he’s deliberately trying to mislead policymakers and the American people. Neither explanation inspires much confidence that the IC is operating within the confines of the law and at least in my mind, neither is a quality that the man charged with keeping the ODNI legal should possess. Meanwhile, if the Obama Administration wants the public to think the Intelligence Community takes civil liberties seriously, replacing Mr. Joel with someone who has that Fourth Amendment tattoo would be a good place to start. If only because that way we'll know the job is being done by someone willing to endure pain in support of our rights.