The 9/11 Commission Report, released in 2004, included this passage:
“This pattern has occurred before in American history. The United States faces a sudden crisis and summons a tremendous exertion of national energy. Then, as that surge transforms the landscape, comes a time for reflection and reevaluation. Some programs and even agencies are discarded; others are invented or redesigned. Private firms and engaged citizens redefine their relationship with government, working through the processes of the American republic.”
The report was comparing the surge in post-9/11 security spending to that of the period of the Korean War, and called for a similar period of “reflection and reevaluation.”
Over the next few years, the federal government, and the Intelligence Community in particular, experienced dramatic re-organization and change in order to better protect the nation from terrorist threats. A decade later, in response to the Edward Snowden leaks, we may be approaching another re-calibration.
The pendulum may be swinging back. And I am concerned that this shift may lead to the potential unraveling of the protective national security infrastructure that was put in place over the course of the last decade; an infrastructure that has kept the nation not 100% safe, but safe from a terrorist attack on the scale of a 9/11.
And this shift may take place not because current surveillance activities are unlawful, but because ideas about what the law should be, are changing.
There are a number of misperceptions about what the law currently is. Accordingly, a very brief history is in order.
To begin, the Supreme Court has never actually ruled on whether or not a warrant is required to collect privacy protected information for foreign intelligence purposes. In 1972, in United States vs. United States District Court (known as the Keith case), the Supreme Court ruled that a warrant is required for domestic security surveillance. The Court explicitly excluded from its decision surveillance for foreign intelligence purposes.
In 1978, however, in light of a number of abuses of Intelligence Community activities exposed primarily through the Church Committee hearings, Congress considered and passed the Foreign Intelligence Surveillance Act of 1978 (FISA), which provided a statutory framework for conducting electronic surveillance inside the United States for foreign intelligence purposes. Nothing in this summer’s exposures suggests the type of wrongdoing that was exposed in the 1970s.
It was not until 1994 that FISA was amended to include Foreign Intelligence Surveillance Court (FISC) approval of physical searches for foreign intelligence purposes inside the United States.
Up until 1994, the Attorney General authorized those types of searches under authority delegated through an executive order. The pre-1994 warrantless search authority was challenged, and upheld at the district court level in the case United States v. Marzook, in 2006.
Similarly, until the FISA Amendments Act of 2008 was passed, surveillance or search of U.S. persons (which includes citizens and lawful resident aliens) conducted outside the United States’ borders, also did not require FISC approval. That warrantless electronic surveillance authority was also challenged, and upheld by a district court in 2002, in United States v. Bin Laden.
Among smaller adjustments made since 9/11, there have been two major amendments to FISA worth highlighting.
One such change was made by the USA Patriot Act in 2001. The Patriot Act provided that “a significant purpose” of the surveillance needs to be to collect foreign intelligence information, instead of the prior standard of “the purpose.”
This change was upheld in In Re Sealed Case, by the Foreign Intelligence Surveillance Court of Review (FISCR), in 2002. The practical effect has been that it enables law enforcement and intelligence officials investigating terrorism cases to better coordinate their efforts with each other.
The second major change to FISA was made through an interim law, the Protect America Act of 2007, and then its replacement, the FISA Amendments Act of 2008 (FAA).
It’s this second law, the FAA, which provides what is referred to as 702 authority – the ability for the NSA to conduct foreign intelligence surveillance of non-U.S. persons who are reasonably believed to be outside the United States without an advance finding of probable cause by the FISC.
Although the case addressed surveillance under the Protect America Act, it concerned, at a broad level, the general category of surveillance at issue in the FAA. The decision in In Re Directives was released publicly in 2008. The court clearly stated that a foreign intelligence exception to the warrant requirement exists:
“[A] foreign intelligence exception to the Fourth Amendment’s warrant requirement exists when surveillance is conducted to obtain foreign intelligence for national security purposes and is directed against foreign powers or agents of foreign powers reasonably believed to be located outside the United States.”
Finally, and briefly, with respect to metadata, the current law of the land is that there is no privacy right to third party records voluntary turned over by a user.
That’s right: under existing Supreme Court precedent, there is no expectation of privacy either in the phone numbers we dial or other records that we turn over to a third party, like a bank, or, a phone company. Two of the key cases on these issues are the 1979 Smith v. Maryland, and 1976 U.S. v. Miller.
Although all old news, this history is worth reviewing, because in the debate over surveillance authorities that has followed the Snowden leaks, there has been little discussion of existing Supreme Court precedent or these important decisions by the FISCR.
Although these several cases are just a few out of a wider body of law that is developing regarding surveillance activities, they are important benchmarks that have been glossed over in the current debate.
Instead, the commentary has mostly consisted of breathless allegations of illegality and impropriety.
The 9/11 Commission Report proposed a number of reforms to streamline Intelligence Community operations and make the government work together better to protect the nation from a second devastating attack.
The 9/11 Commission also recognized that periodic reflection was a natural part of our evolution as a nation. As we go down this path, Congress and the public need to take care not to rashly undo activities that have helped keep the nation safe for the last twelve years. The changes we make now need to be done in a careful and considered way. They will have consequences for years to come.
In remarks at Rice University in October 2012, Chief Justice John Roberts predicted that evaluating the privacy implications of new technologies will be a key focus of the Supreme Court’s work.
In the meantime, it is helpful to keep in mind what the law currently is, instead of what some might wish it already to be.
Carrie F. Cordero is Director of National Security Studies, Georgetown University Law Center, and an adjunct professor of law. Previously, she served in national security related policy and operational positions with the Department of Justice from 2000-2010.
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