The Secret NSA Wiretapping Program FAQ
To commemorate tonight’s State of the Union address, in which President Bush is certain to defend his probably-unconstitutional wiretapping program (he can’t tell you the details, just trust him), I present:
The Secret NSA Wiretapping Program FAQ
(With extra Alito’s-confirmation-is-today tie-in)
Q: Okay, so what happened?
A: The short-but-sweet version is that the Bush administration has been wiretapping calls between people in the United States and people overseas without consulting the Foreign Intelligence Surveillance Court, which was established by the Congress for the specific purpose of providing judicial oversight of these activities.
Q: Wow, a secret intelligence court? When did that happen?
A: The law (the Foreign Intelligence Surveillance Act, or FISA) was passed in 1978. It’s Title 50, Subchapter 36, Title I (§1801-§1811) of the U.S. Code. You can read it all here.
Q: President Bush says that the program is legal. Is it?
A: We can’t be sure unless the Supreme Court rules on the matter, but it’s probably unconstitutional. The Congressional Research Service, a non-partisan research arm of the Library of Congress, reviewed [PDF] the administration’s arguments for the constitutionality of the program and concluded that, while they could not say for sure because the details of it have been kept secret, they could find no basis in law for the President’s actions.
Q: Other than the memo from the Congressional Research Service, do we have reason to believe that some sort of illegal activity occurred?
A: Yes. Even NSA officials had concerns about the legality of the program. From the December 16, 2005 New York Times:
Several senior government officials say that when the special operation began, there were few controls on it and little formal oversight outside the N.S.A. The agency can choose its eavesdropping targets and does not have to seek approval from Justice Department or other Bush administration officials. Some agency officials wanted nothing to do with the program, apparently fearful of participating in an illegal operation, a former senior Bush administration official said. Before the 2004 election, the official said, some N.S.A. personnel worried that the program might come under scrutiny by Congressional or criminal investigators if Senator John Kerry, the Democratic nominee, was elected president.
In mid-2004, concerns about the program expressed by national security officials, government lawyers and a judge prompted the Bush administration to suspend elements of the program and revamp it.
Q: What are the consequences for using information gathered without a warrant?
A: Interesting that you should ask. Under §1809,
A person is guilty of an offense if he intentionally… discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by statute… An offense described in this section is punishable by a fine of not more than $10,000 or imprisonment for not more than five years, or both.
Q: Would each instance count as a single offense? That would mean a maximum possible sentence of tens of thousands of years in prison!
A: That’s an interesting point. I don’t know.
Q: Could this law be used to hold President Bush responsible for his actions?
A: Strictly in theory, yes. However, to see that happen while Bush was in office, you’d need a federal prosecutor to be told by his boss to prosecute both the prosecutor’s boss and his boss’s boss. That’s not going to happen.
Q: What about the challenge that the ACLU has brought?
A: It’s a nice P.R. move, but it has little chance of success. The trick here is that to bring a legal case, one has to have standing. The government will argue that it cannot confirm nor deny that any individual was under surveillance, and it will do so by invoking national security concerns. If the courts accept this line of reasoning, nobody could actually establish that they have standing to bring suit. Thus, it would be a surprise to see the case before the Supreme Court. How it would fare before the new court would be another matter entirely, particularly given Alito’s fondness for broad executive powers.
Q: Some people (Gen. Hayden of the NSA in particular) have said that President Bush had to do the warrantless surveillance because the “probable cause” standard in FISA is too high. Is this the case?
A: There are a few issues with this argument. The first is that FISA does not prevent surveillance of suspected terrorists or of individuals in contact with terrorists at all. All it requires is that the government have probable cause to believe that the people are, in fact, terrorists before they start tapping their phones. The second is that if the President finds the law to be inadequate, there’s a solution for that. It’s called Congress, sometimes known as the legislative branch– a part of the balance of powers. The third issue is that the Bush administration already rejected a proposal in June 2002 to lower the evidentiary standard. So this argument is pretty weak, at best.
Q: Couldn’t we miss valuable information while waiting for a warrant from a FISA court?
A: No. FISA allows the Attorney General to authorize surveillance first and ask for permission from the court up to three days later. Specifically, under §1805 (f), the Attorney General “may authorize the emergency employment of electronic surveillance if a judge… is informed by the Attorney General or his designee at the time of such authorization that the decision has been made to employ emergency electronic surveillance and if an application… is made to that judge as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance.”
Q: Vice President Cheney says that the warrantless wiretapping program “has helped to detect and prevent possible terrorist attacks against the American people.” Isn’t this a good justification for the program?
A: No, on two counts. First, even if the program had prevented terrorist attacks, it is not at all clear that it being carried out without judicial oversight helped prevent these attacks. FISA would not have prevented wiretapping of the individuals in any of the cases we know about–and there’s no reason to believe that it would have prevented any wiretapping that has proved useful in any investigations we don’t know about. So yes, wiretapping can be a useful tool–but to point this out is to distract from the fact that it’s being done without any sort of oversight, oversight which would not impede its usefulness. Second, it’s unclear that the Vice President’s claims are entirely accurate. From the January 17, 2004 New York Times:
The law enforcement and counterterrorism officials said the program had uncovered no active Qaeda networks inside the United States planning attacks. “There were no imminent plots – not inside the United States,” the former F.B.I. official said.
Some of the officials said the eavesdropping program might have helped uncover people with ties to Al Qaeda in Albany; Portland, Ore.; and Minneapolis. Some of the activities involved recruitment, training or fund-raising.
But, along with several British counterterrorism officials, some of the officials questioned assertions by the Bush administration that the program was the key to uncovering a plot to detonate fertilizer bombs in London in 2004. The F.B.I. and other law enforcement officials also expressed doubts about the importance of the program’s role in another case named by administration officials as a success in the fight against terrorism, an aborted scheme to topple the Brooklyn Bridge with a blow torch. Some officials said that in both cases, they had already learned of the plans through prisoner interrogations or other means.
So it’s unclear as to how useful the program has actually been, and in any case, it being a useful program doesn’t justify it being done illegally. The whole point of warrants is to protect citizens’ rights– yes, it would certainly be expedient if I could tell an officer about the bag of marijuana that you keep in your sock drawer and he could just burst into your house and seize it, but we make officers get warrants because our founders believed that the right to privacy was worth protecting, particularly as a safeguard against tyranny:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Q: President Bush has said, “You know, it’s amazing that people say to me, ‘Well, he was just breaking the law.’ If I wanted to break the law, why was I briefing Congress?” How open was the President with Congress about the details of this plan?
A: The extent to which Congress was informed is not fully known. What we do know is that President Bush wasn’t briefing Congress as a whole, or even the entirety of either the House or Senate intelligence committees. So it is misleading to say that he was “briefing Congress.” It is also not known whether the full extent of the program was disclosed to these members of Congress, however, enough information was disclosed that at least one Senator expressed concerns about the program. From the December 16, 2005 New York Times:
After the special program started, Congressional leaders from both political parties were brought to Vice President Dick Cheney’s office in the White House. The leaders, who included the chairmen and ranking members of the Senate and House intelligence committees, learned of the N.S.A. operation from Mr. Cheney, Lt. Gen. Michael V. Hayden of the Air Force, who was then the agency’s director and is now a full general and the principal deputy director of national intelligence, and George J. Tenet, then the director of the C.I.A., officials said.
It is not clear how much the members of Congress were told about the presidential order and the eavesdropping program. Some of them declined to comment about the matter, while others did not return phone calls.
Later briefings were held for members of Congress as they assumed leadership roles on the intelligence committees, officials familiar with the program said. After a 2003 briefing, Senator Rockefeller, the West Virginia Democrat who became vice chairman of the Senate Intelligence Committee that year, wrote a letter to Mr. Cheney expressing concerns about the program, officials knowledgeable about the letter said. It could not be determined if he received a reply. Mr. Rockefeller declined to comment. Aside from the Congressional leaders, only a small group of people, including several cabinet members and officials at the N.S.A., the C.I.A. and the Justice Department, know of the program.
Q: President Bush has said, “These are not phone calls within the United States. This is a phone call of an al Qaeda, known al Qaeda suspect, making a phone call into the United States.” How extensive is this program?
A: The program is designed to only intercept conversations in which one or both ends of the conversation are outside the United States. It has, apparently by accident, intercepted a small but unknown number of purely domestic communications. From the December 20, 2005 New York Times:
But in at least one instance, someone using an international cellphone was thought to be outside the United States when in fact both people in the conversation were in the country. Officials, who spoke on condition of anonymity because the program remains classified, would not discuss the number of accidental intercepts, but the total is thought to represent a very small fraction of the total number of wiretaps that Mr. Bush has authorized without getting warrants.
The fact that the few purely domestic conversations intercepted without a warrant were by accident is a good thing, as the case law is entirely settled in this area. In United States v. United States District Court, 407 U.S. 27, the Supreme Court unanimously held that,
[W]here practical, a governmental search and seizure should represent both the efforts of the officer to gather evidence of wrongful acts and the judgment of the magistrate that the collected evidence is sufficient to justify invasion of a citizen’s private premises or conversation… These Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillances may be conducted solely within the discretion of the Executive Branch… Official surveillance, whether its purpose be criminal investigation or ongoing intelligence gathering, risks infringement of constitutionally protected privacy of speech. Security surveillances are especially sensitive because of the inherent vagueness of the domestic security concept, the necessarily broad and continuing nature of intelligence gathering, and the temptation to utilize such surveillances to oversee political dissent. We recognize, as we have before, the constitutional basis of the President’s domestic security role, but we think it must be exercised in a manner compatible with the Fourth Amendment. In this case we hold that this requires an appropriate prior warrant procedure.
Extra Alito-Confirmation-Day Bonus
As a result of U.S. v. U.S. District Court, a man named Keith Forsyth sued Nixon’s attorney general, John Mitchell, over conversations of his that had been illegally wiretapped. The case, Mitchell v. Forsyth, 472 U.S. 511, was argued in 1985. According to an article in the Los Angeles Times, Samuel Alito, then a Reagan administration lawyer, stated that he did not question that the attorney general should have absolute immunity from civil lawsuits stemming from decisions made while in office, but encouraged the solicitor general to argue the case on different grounds for tactical reasons. Forsyth won the case.
Q: All right, then. Why don’t you tell me why in the world the Bush administration would engage in this if it’s probably illegal and they could just get warrants anyway?
A: Because they’re not telling us the extent of the program– and they couldn’t get warrants for what they’re doing. They’re intercepting a large fraction of phone calls and screening them with computers that are searching for particular phrases or patterns. If a match comes up, the tip is passed along to others who can follow up on it. This method could, in theory, catch a terrorist who is under the radar. The vast majority of what comes up will be the conversations of innocent citizens, though.
So Bush is doing this because he thinks the program might help, and he places this small chance that it might over the implications it has for civil liberties. He hasn’t asked for Congressional or judicial review of the program because he doesn’t want details of the program known, and he has a definite contempt for the other branches of government, anyway.
That’s my guess, at least.