Blank Check for Domestic Spying

FISA was enacted in 1978 in reaction to the excesses of Richard Nixon and the FBI, who covertly spied on critics of Administration policies. FISA set up a conservative system with judges who meet in secret and issue nearly every wiretapping order the Administration requests. 

But that wasn’t good enough. In 2001 Bush secretly established his Terrorist Surveillance Program, with which the National Security Agency has illegally spied on Americans. Instead of holding the executive accountable for his law-breaking, Congress capitulated once again to Bush’s strong-arm tactics. As Congress was about to adjourn for its summer recess, Bush officials threatened to label anyone who opposed their new legislation as soft on terror. True to form, Congress—including 16 Senate and 41 House Democrats—caved. 

The new law places the power to authorize electronic surveillance in the hands of the attorney general (AG) and the director of national intelligence (DNI). FISA had required the government to convince a judge there was probable cause to believe the target of the surveillance was a foreign power or the agent of a foreign power. (The law didn’t apply to wiretaps of foreign nationals abroad.) Its restrictions were triggered only when the surveillance targeted a U.S. citizen or permanent resident or when the surveillance was obtained from a wiretap physically located in the United States. The attorney general was required to certify that the communications to be monitored would be exclusively between foreign powers and there was no substantial like- lihood a U.S. person would be overheard. 

Under the new law, the AG and DNI can authorize “surveillance directed at a person reasonably believed to be located outside of the United States.” The surveillance could take place inside the U.S. and there is no requirement of any connection with al-Qaeda, terrorism, or criminal behavior. The requirement that the AG certify there is no substantial likelihood a U.S. person will be overheard has been eliminated. 

By its terms, the new law will sunset in 180 days, but this is a specious limitation. The AG and DNI can authorize surveillance for up to one year.  

There is provision for judicial review, but the requirement is weak since the court doesn’t have to respond until 180 days after the effective date of the surveillance and the standard of review is appallingly low. It’s limited to whether the government’s determination is “clearly erroneous.” Even if the court were to find the proffer clearly erroneous, the AG and DNI have another 30 days to fix it. That takes the entire review process beyond the six month sunset period. Meanwhile, the surveillance can continue. 

The Supreme Court held in the 1967 case of Katz v. United States that government wiretapping must be supported by a search warrant based on probable cause and issued by a judge. In 1972 the Court, in U.S. v. U.S. District Court (Keith), struck down warrantless domestic surveillance. The Court has recognized the “special needs” exception to the warrant requirement. The special need must be narrowly tailored to the problem. However, the new law is much too broad to come under this exception. Congress eliminated any need that the person surveilled be a foreign power or an agent of a foreign power. The government need only show it is seeking “foreign intelligence information.” There is no requirement of any connection with terrorism. The special needs exception also required an absence of discretion in the implementing authority, but there is unlimited discretion now as long as the target is reasonably believed to be outside the United States. 

The AG is required under the new law to report to Congress semi-annually, but only on incidents of non- compliance. Can we really trust the AG to be forthcoming about compliance with this law? Senator Christopher Dodd told Glenn Greenwald at the YearlyKos convention September 10, 2007 that neither he nor the other senators have any idea how the Bush administration has been using its secret program to spy on Americans. 

Finally, the new law requires telephone companies to collect data and turn it over to the federal government. It also grants immunity against lawsuits to these companies, many of which are defendants in civil cases. 

Indeed, the mad rush to push this legislation through was likely a preemptive strike by Bush to head off adverse rulings in lawsuits challenging the legality of his Terrorist Surveillance Program. 

In six months, when the Protect America Act of 2007 is set to expire, there will be even more political pressure on Congress to appear tough on terror in the run-up to the 2008 presidential election. Unfortunately, we cannot expect a Congress that so easily caved in to the fears hyped by the Bush administration to stand firm in support of the Constitution. 

Z 

Marjorie Cohn is a professor at Thomas Jefferson School of Law and president of the National Lawyer’s Guild.