Decision ‘08

Review of the Specter NSA Surveillance Hearing, Part Two

Continuing my look at Senator Arlen Specter’s hearing Tuesday on NSA Surveillance…

Next up was Judge Harold Baker,whose initial statement can be safely skipped except for this revealing explanation of the lack of applicability of probable cause to foreign intelligence:

The problem that seems to arise — and I mentioned this to Senator Specter — is the lack of understanding — it’s amazing to me — on the part of the Justice Department and the intelligence community as to what probable cause has to be.

They have some idea that probable cause is the high bar that they have to cross. And in foreign intelligence matters it is not.

And if they go read Illinois v. Gates and Maryland v. Pringle, where first Justice Rehnquist and finally, in the Pringle case, Chief Justice Rehnquist elaborates further, it comes down to a very practical, common-sense decision, which in the case of foreign intelligence boils down to just a reasonable suspicion.

We now come to Judge Stanley Brotman, who again makes it clear that, although he supports FISA, he finds it out-of-date:

FISA has worked and worked well. It is a necessary court and its orders reflect the balance to which I have made reference. It has no ax to grind, this court. Judicial review provides confidence to the citizens of our country to know that a court has looked on what is doing sought.

Times change. Methodology changes. Equipment changes. Processes change. All these things can be and should be accommodated with the FISA Court.

Unfortunately, Judge John Keenan, the next witness, came in and muddied the waters on the issue of reasonable suspicion versus probable cause:

FISA was originally enacted in 1978. And it is what I will call a Fourth Amendment statute. This is because in order to secure a FISA warrant the attorney general must establish probable cause.

However, FISA probable cause is different than probable cause in the criminal context. In a FISA application, all the government must show is that there is probably cause to believe that the target is a foreign power or the agent of a foreign power.

In the case of a FISA warrant, the seizure is of foreign intelligence information.

At present, as we have all heard here this morning, this whole area is one where there is considerable controversy and disagreement.It is not my purpose, nor do I think it appropriate, for me to allude to the politics of the subject.

Recall from part one that Judge Kornblum said probable cause in the context of FISA meant probable cause that someone is an agent of a foreign power, and that squares with Keenan’s statement here. Yet Baker, above, pointed to reasonable suspicion, and explicitly said probable cause was not the right standard. If these judges who have, after all, all served on the FISA court can’t agree on this basic a point, how can FISA as currently constituted be workable?

Judge Keenan then suggests the 72-hour period, which he assumes to remain under Specter’s proposed legislation (the biggest single flaw in the Specter legislation), be extended to 168 hours, and concludes with a forceful argument that it is indeed reasonable to eavesdrop on Americans in situations where they are communicating with terror networks:

It is my understanding, based on an article in the March 9th, New York Times, that there is a bill in the Senate Foreign Intelligence Committee seeking to allow warrants without court orders for up to 45 days.

The National Security Surveillance Act of 2006, which is before you, makes no reference to the 72-hour period, and thus presumably leaves it in place.

I would respectfully suggest that the period be increased to seven days, or 168 hours, in emergency cases. This should be more than ample time to address any unforeseen emergencies if FISA was amended and extended to 168 hours.

…Because of modern technology, United States persons may well be in the network or the chain of communication of known terrorists. Concerning those terrorists, there may well be ample probable cause, but little or nothing may be known other than that he is receiving communications from the terrorists.

I believe in the context of intelligence-gathering that the Fourth Amendment allows Congress to empower the president to seek warrants targeting networks of communication used by people, including United States persons, where the network is engaged in terrorism or activities related thereto without having specific probable cause for all people in the network.

I believe that your legislation, sir, accomplishes this important purpose and takes into account the sophisticated modern technology employed in present-day electronic communications, while recognizing the need for minimization procedures.

Finally, we have Judge William Stafford. Stafford has an extended passage praising the legislation for acknowledging and spelling out the different standards applicable to criminal prosecutions and foreign intelligence gathering:

Your amendments create an electronic surveillance program in which the Congress recognizes that it is, quote, “not feasible” to name every person or address every location and requires — again quoting — “an extended period of electronic surveillance.”

This is another recognition not only of the change in the world scene and in communications abilities, but also of the difference between traditional criminal prosecution and foreign intelligence gathering.

By requiring a justification for continuing the surveillance, and by establishing enhanced minimization procedures, these amendments offer a reasonable approach to meeting both the need for national security and for protecting Americans’ civil liberties.

Foreign intelligence surveillance — has been mentioned — is a different form of executive function than is law enforcement. And your proposed legislation recognizes that.

In my considered opinion, it is well that a different threshold is set for the initiation and/or the continuation of foreign intelligence surveillance, as contrasted to the traditional Fourth Amendment probable cause that is required in criminal search-and- seizure warrant applications.

This is because the purposes of the intrusion and collection of information in each case is different.

In the typical Fourth Amendment search-and-seizure context, the individual and/or the place and/or the type of evidence are generally spelled out in the warrant application and criminal prosecution is the end-game.

Under FISA, the governmental function is the gathering of foreign intelligence information. And while the intelligence-gatherers are not required to turn a blind eye to violations of the criminal laws, prosecution is not the purpose for the initiation or continuation of the foreign intelligence surveillance.

Spelling out in your legislation a different level for the initiation and/or continuation of foreign intelligence surveillance has the additional benefit, Mr. Chairman, of providing guidance for those courts that may be called upon to review the product of any such foreign intelligence surveillance.

Should evidence incidentally gathered as a result of a FISA warrant be offered in a criminal case and there be challenged as a product of an unreasonable search and seizure, it would be comforting for the trial judge and for the court of appeals judges — who may have the same issue on appeal — to know that Congress made the deliberate choice to set a different threshold for foreign intelligence purposes.

Illinois against Gates has been mentioned. It’s my recollection that arose in a criminal case context. And while the language of that opinion may well allow for different levels of consideration depending upon the purpose for the warrant application, having the legislative intent clearly stated here removes any doubt as to what the Congress would authorize or sanction in the FISA context.

I’m not going to cover the Q&A, because the transcript I was provided has only a small portion of that. If anyone has the complete Q&A portion, I would be very interested in reading it in its entirety.

Again, to conclude, we see that the FISA judges clearly believe that FISA as it currently exists is not up to the challenge of modern communications, and that they strongly believe it must be modified. I find it odd, then, that the president’s opponents failed to emphasize this strongly articulated message that comes through so forcefully. It’s not the case, as some Bush supporters have claimed, that the judges said Bush’s surveillance program is legal…but it’s clearly not the case, either, that they find the President’s objections to working through FISA in its current state as unjustified…

One Response to “Review of the Specter NSA Surveillance Hearing, Part Two”

1 Muffin the Cat Says:
March 31st, 2006 at 9:04 pm
Mark,

Thank you for taking the time to go through the hearing and highlight the important parts. Your last paragraph sums it up very well. In reading through the comments from this website and others it appears as if they will make necessary updates knowing FISA needs to be brought into the 21st century which leads me to believe that Congress, the Judiciary, and most of the American People really do not have a problem with what the President is doing and feel he is justified in his actions.