Category: Criminal Procedure


NSA Surveillance: Blog Post Roundup

There is a lot of great analysis and opinion in the blogosphere regarding Bush’s authorization of warrantless NSA surveillance. Here are some useful links:

News Articles

James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts (N.Y. Times, Dec. 16, 2005) (original article to break the story)

Scott Shane, Behind Power, One Principle as Bush Pushes Prerogatives (N.Y. Times, Dec. 17, 2005)

Peter Baker, President Acknowledges Approving Secretive Eavesdropping (Wash. Post, Dec. 18, 2005)

AP, Bush Says U.S. Spy Program Is Essential and Legal (AP, Dec. 19, 2005)

Statutes, Cases, and Other Materials

Foreign Intelligence Surveillance Act (FISA) (1978)

Authorization for Use of Military Force (Sept. 14, 2001)

Press Briefing by Attorney General Alberto Gonzales and General Michael Hayden, Principal Deputy Director for National Intelligence (Dec. 19, 2005)

United States v. United States District Court, 407 U.S. 297 (1972) (aka the Keith case) (Fourth Amendment analysis of national security surveillance)

Hamdi v. Rumsfeld, 124 S. Ct. 981 (2004) (analysis of the scope of authority granted by Congress’s Authorization to Use Military Force)

Blog Posts (in no particular order and by no means comprehensive)

Orin Kerr, Legal Analysis of the NSA Domestic Surveillance Program (Dec. 19, 2005)

“My answer is pretty tentative, but here it goes: Although it hinges somewhat on technical details we don’t know, it seems that the program was probably constitutional but probably violated the federal law known as the Foreign Intelligence Surveillance Act.”

(This is the most lengthy and detailed analysis to date.)

Orin Kerr, Domestic Surveillance by the NSA? (Dec. 15, 2005)

“While the statutory privacy laws have an exception for this type of monitoring, see 18 U.S.C. 2511(f), and the constitutional limits on e-mail surveillance are uncertain even in traditional criminal cases, the constitutionality of warrantless interception of telephone calls in situations like this is really murky stuff.”

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Beyond His Power: Bush’s Authorization of Warrantless NSA Surveillance

NSA2a.jpgIn this post, I aim to explore more in depth whether Bush had the legal power to authorize warrantless NSA surveillance. As I was putting the finishing touches on this post, I noticed that Orin Kerr beat me to the punch, and I find that we’ve identified the same issues and are in substantial agreement. His post is a lot longer and more detailed than mine (which is quite long itself), so read mine for a broader overview and Orin’s for the treatise-length account.

1. Fourth Amendment

The Fourth Amendment standards are somewhat vague. The Supreme Court declared in United States v. United States District Court, 407 U.S. 297 (1972) (often called the Keith case) that the Fourth Amendment required a warrant for the government to engage in electronic surveillance for domestic criminal investigations. However, the Court noted:

. . . [D]omestic security surveillance may involve different policy and practical considerations from the surveillance of “ordinary crime.” The gathering of security intelligence is often long range and involves the interrelation of various sources and types of information. . . . Often, too, the emphasis of domestic intelligence gathering is on the prevention of unlawful activity or the enhancement of the Government’s preparedness for some possible future crisis or emergency. Thus, the focus of domestic surveillance may be less precise than that directed against more conventional types of crime. . . . .

Different standards [for gathering domestic security intelligence] may be compatible with the Fourth Amendment if they are reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens. For the warrant application may vary according to the governmental interest to be enforced and the nature of citizen rights deserving protection.

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How Much Government Secrecy Is Really Necessary?


Responding to reports that revealed that the President authorized the NSA to conduct warrantless surveillance within the US, President Bush said:

“The existence of this secret program was revealed in media reports after being improperly provided to news organizations. As a result, our enemies have learned information they should not have, and the unauthorized disclosure of this effort damages our national security and puts our citizens at risk.”

I’m growing weary of arguments like this. How, exactly, does the revelation of the fact that Bush authorized the NSA to conduct surveillance — possibly exceeding the limits of his lawful powers — put “our citizens at risk”? Why is every disclosure about the extent of the government’s surveillance somehow assisting the terrorists?

The argument seems to be that we can’t have a national debate about the nature and extent of government surveillance because such information will help the terrorists. But central to any viable democracy is a government that is publicly accountable, and that requires that the people have the information they need to assess their government’s activities.

Recently, I blogged about a story involving a secret DOD database of protesters. And there’s a debate going on about a secret regulation in the Gilmore case. The debate has focused on whether the secret information in the case is really a regulation, a law, or something else, but the larger question remains: Why does it need to be a secret?

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Did Bush Have the Legal Authority Under FISA to Authorize NSA Surveillance?

whitehouse4.jpgYesterday, I blogged about a startling story in the NY Times about President Bush’s authorizing the NSA to conduct domestic surveillance without a warrant or even a court order. According to the NY Times story, the “legal opinions that support the N.S.A. operation remain classified.”

Today in the NY Times is a follow-up story about the legal basis for the President’s actions. According to the story:

[S]ome legal experts outside the administration, including some who served previously in the intelligence agencies, said the administration had pushed the presidential-powers argument beyond what was legally justified or prudent. They say the N.S.A. domestic eavesdropping illustrates the flaws in Mr. Bush’s assertion of his powers.

“Obviously we have to do things differently because of the terrorist threat,” said Elizabeth Rindskopf Parker, former general counsel of both N.S.A. and the Central Intelligence Agency, who served under both Republican and Democratic administrations. “But to do it without the participation of the Congress and the courts is unwise in the extreme.” . . .

William C. Banks, a widely respected authority on national security law at Syracuse University, said the N.S.A. revelation came as a shock, even given the administration’s past assertions of presidential powers.

“I was frankly astonished by the story,” he said. “My head is spinning.”

Professor Banks said the president’s power as commander in chief “is really limited to situations involving military force – anything needed to repel an attack. I don’t think the commander in chief power allows” the warrantless eavesdropping, he said. . . .

In engaging in the surveillance, the President may have ignored the legal procedures set forth in the Foreign Intelligence Surveillance Act (FISA) of 1978.

The FISA allows the government to engage in electronic surveillance if it obtains a court order from the Foreign Intelligence Surveillance Court (FISC), which meets in secret. The government must demonstrate probable cause that the monitored party is a “foreign power” or an “agent of a foreign power.” 50 U.S.C. § 1801. If the monitored party is a U.S. citizen, however, the goverment must establish probable cause that the party’s activities “may” or “are about to” involve a criminal violation. Id.

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President Bush, the National Security Agency, and Surveillance

NSA2a.jpgThe New York Times has an in-depth story about how President Bush authorized the National Security Agency (NSA) to engage in surveillance after 9/11:

Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.

Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible “dirty numbers” linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications.

The previously undisclosed decision to permit some eavesdropping inside the country without court approval represents a major shift in American intelligence-gathering practices, particularly for the National Security Agency, whose mission is to spy on communications abroad. As a result, some officials familiar with the continuing operation have questioned whether the surveillance has stretched, if not crossed, constitutional limits on legal searches.

“This is really a sea change,” said a former senior official who specializes in national security law. “It’s almost a mainstay of this country that the N.S.A. only does foreign searches.”

Read the article. It is, in my view, quite startling. Here’s another very troubling fact:

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Subways, Searches, and Slippery Slopes

police-search.jpgThe gloves are off. Dave Hoffman has lodged another challenge to my position, and I want to take a quick moment to defend myself.

I believe that Dave mischaracterizes my arguments in several places and exaggerates some of my claims. So I’ll attempt to clear up any confusion as to my positions and try to defend my turf.

1. I’m not a privacy absolutist. If I were, I wouldn’t even be speaking about whether the subway searches were effective or not, as it would be irrelevant.

2. I am not arguing that we’re on a slippery slope toward totalitarianism. I am arguing that the “show of force” that Jason extols is something that totalitarian societies do, and it has effects on shaping people’s attitudes and their sense of freedom. It has “expressive” content. My argument is not that we’re going to quickly slide down the slope to Big Brother. Rather, my argument is that the searches and other displays of force Jason speaks about are similar tactics to those used in totalitarian societies. They won’t necessarily make us into such a society, but they do introduce different elements into our own society that will have some effect. Allowing police to search people as they travel about the city, without any suspicion of wrongdoing, is a significant change in the tone and tenor of life in NYC. Although this will not lead to the government’s installing telescreens into people’s homes anytime soon, the subway search policy isn’t a trivial initiative. Nor are the other displays of force Jason speaks about. They affect the very atmosphere in which we live.

3. I did not invoke Korematsu to suggest that we’re on a slippery slope to internment. I invoked it to suggest that it involves the same arguments and logic of deference. The point is that the government officials were wrong with regard to the Japanese Internment, and perhaps this should serve as a lesson to courts that government officials do not always know better. It also demonstrates the lengths to which the government can go when security is threatened. I raise Korematsu not as a slippery slope problem but as a cautionary tale that in the face of security threats, the government (and the population at large) can make rash and unwise decisions. This is a reason why courts shouldn’t defer but should keep a very critical eye on the policies adopted by the government in times of crisis.

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Rational Security vs. Symbolic Security

cartoon-security1b.bmpSo much for concurring opinions . . . I’ve been attacked by not only one co-blogger, but two. Earlier on, I posted a critique of the court’s decision upholding the NYC subway searching policy against a Fourth Amendment challenge.

Jason Mazzone argues that I’m ignoring a key benefit of the search policy:

The overriding goal of all of these efforts is prevention. The police are no longer charged simply with responding to crimes that have occurred. To succeed, they must stop terrorist attacks before they occur.

The City has taken the view, reasonable in my opinion, that prevention is aided by demonstrating on a regular basis the power of the City’s security forces. Such a demonstration combines awe with surprise.

First, I question whether such demonstrations of force are likely to deter the terrorists, who continually seek to infiltrate the hardest of targets rather than the unfortified ones. The terrorists focus a lot on airplanes, where the security is rather tight compared to many other tragets. So I wonder whether such demonstrations of force really deter terrorists. Perhaps the show of force gives people a sense of security, which, although illusory, is nevertheless comforting. But if this is the goal, should it be a legitimate government policy to create an illusion?

Jason’s argument reminds me of the armed military personnel patrolling airports after 9/11 with machine guns. The guns were unloaded, and the troops were there primarily as symbols of strength. All this cost money, money that wasn’t spent on addressing the real vulnerabilities of air travel. I guess the question is whether it is better to have rational security or symbolic security. My vote is for rational security.

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NYC Subway Searches Upheld: A Critique of the Court’s Decision

nyc-subway-search2.jpgIn a recently issued opinion, Judge Berman of the U.S. District Court for the Southern District of New York upheld New York’s subway searching policy. Back in July, New York began randomly searching people’s bags at NYC subways. I criticized the policy:

It is another big waste of money and time, as well as a needless invasion of civil liberties — all for a cosmetic security benefit. There are 4.5 million passengers each day on the NYC subways. What good could a few random checks do? The odds of the police finding the terrorist with a bomb this way are about as good as the odds of being hit by lightning. I doubt it will have much of a deterrent effect either.

This landed me in a debate with co-blogger Dave Hoffman, with Hoffman’s views here and my reply here.

Now, in response to an ACLU challenge under the Fourth Amendment, District Court Judge Richard Berman concludes that the policy is constitutional. The court analyzes the checkpoints under a “reasonableness” balancing test, in which the governmental interest is weighed against the invasion of privacy. But in doing so, the court begins by already tilting the scale toward the government’s side — even before the balancing has begun:

Because the threat of terrorism is great and the consequence(s) of unpreparedness may be catastrophic, it would seem foolish not to rely upon those qualified persons in the best position to know. (See Pre-Trial Amici Brief, at 14 (“[I]t would be inappropriate for courts to second-guess the judgments of law enforcement and other public officials who are charged with protecting the public and making difficult choices of resource allocation.”).)

I believe that this deference is inexcusable. The courts are charged with determining the constitutionality of the search policy, which depends upon reasonableness. The reasonableness of the policy, of course, depends upon balancing the efficacy of the searches against their intrusiveness, and if the court defers to the government in this regard, it is essentially rubber-stamping the goverment in this determination.

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What Does It Take to Establish Probable Cause?

search2a.jpgIn a concurring opinion in United States v. McClain, No. 04-5887 (6th Cir., Dec. 2, 2005), Chief Judge Danny Boggs of the U.S. Court of Appeals for the Sixth Circuit seeks to explain what “probable cause” entails. Under the Fourth Amendment, law enforcement officials often must have probable cause to believe that the place to be searched contains evidence of a crime in order to conduct a search. In describing the standard, however, Judge Boggs defines it as a ridiculously low threshold:

Finally, a word on “probable cause.” While courts have resisted mightily putting a number on probable cause, see Maryland v. Pringle, 540 U.S. 366, 371 (2003), at bottom a review of cases indicates that there must be some, albeit inchoate, feeling as to what kind of probability constitutes probable cause. My reading is that it does not require a belief that there is more than a 50% probability of evidence being found in a particular location. See, e.g., United States v. Gourde, 382 F.3d 1003, 1015 (9th Cir. 2004) (Gould, J., concurring) (collecting cases). If that were the case, one could never get a search warrant to search all three cars of a person for whom there was overwhelming evidence of general drug dealing, and specific evidence of a drug transaction the proceeds of which were now certainly in one of three cars in his garage, and certainly not in any of the others. However, to be more than a hunch or a supposition, in my own mind, requires a legitimate belief that there is more than a 5 or 10 percent chance that a crime is being committed or that evidence is in a particular location. Using this standard, my judgment would be that there was probable cause to believe that criminal activity was afoot in the house, based on the information on which the officers could reasonably rely that there was not a legitimate reason for activity in the house.

This strikes me as far too low a precentage. Just five to ten percent? It would be nearly impossible for law enforcement officials to fail to establish probable cause, unless they were just conducting a random search. If probable cause is just slightly more than five to ten percent, then what number would Judge Boggs give for “reasonable suspicion,” the lower standard for the police to engage in a stop? One percent?

Hat Tip: How Appealing


Orin Kerr on the USA Patriot Act Compromise

My colleague Orin Kerr has gone through the nearly 100 pages of statutory text of the new USA Patriot Act renewal compromise bill. He offers his tentative conclusions here. The bill makes changes in Section 215 Orders, National Security Letters, and Sneak and Peek Warrants. Basically the changes are more recordkeeping and more judicial review — both laudable improvements. There are, however, many other problems in the USA Patriot Act as well as in the underlying electronic surveillance laws that still remain. Check out Kerr’s analysis, which is insightful and intelligent as usual. You could, of course, read the almost 100 pages of statutory code yourself, but I’m sure you’ve got a life. Thank goodness there are folks like Kerr to do it for us. That’s why we keep him around.

Related Posts:

1. Solove, National Security Letters

2. Solove, More on National Security Letters

3. Solove, The USA Patriot Act: A Fraction of the Problem