Legal framework for NSA surveillance

[iangoeswest]

The purpose of this thread is to discuss the legislative action and constitutional framework which undergirds the growing revelations of the intelligence-gathering actions of the NSA in the US.

There is no small amount of essentially partisan argument over where the "blame" lies for the undisputed increase in domestic intelligence gathering. I want to tease out what happened at the legal level to bring us to this pass.

Initial disclaimers / assumptions: intelligence-gathering on the part of the US government has been increasing. Reasonable minds may disagree as to whether this is a good or bad thing, but there is some amount of reasonable concern as to the scope of the intelligence gathering and its potential uses beyond those stated. Some intelligence gathering is both extra-legal and extra-constitutional and isn't susceptible to ready analysis. As to that intelligence-gathering happening within the legal and constitutional framework, our knowledge is hampered because those reporting it on the government side have not always been honest in their reporting of what they're doing.

We cannot know with certitude what information "they" are gathering, and we cannot know with certitude what "they" are doing with it. What we can know is what Congress authorized the Executive Branch to do, and it is those milestones that I seek to discuss.

I pick up my argument at the point where I think we went off the rails. This is of course a judgment call on my part. The passage of the Foreign Intellligence Surveillance Act, and the "secret" court it created, was viewed at the time as a remedial measure, as a check upon the intelligence gathering (and more nefarious) activities which occurred by the Executive in the years preceding it as revealed by the Church Committee. What is good and bad about the whole FISA structure may emerge from the discussion, but hindsight is 20/20 and that is not where I start the discussion.

My assertion is as follows: There were two significant legislative actions that brought us to this pass.

The first was the passage of the USA PATRIOT Act in October 2001, which 1) expanded the reach of "foreign intelligence information" to incude US citizens, 2) lessened the standard under which such information could be sought, by making the gathering of foreign intelligence a "significant" rather than the "primary" purpose of such intelligence gathering, and 3) expanded the reach of surveillance orders - "wiretaps," so to speak - to include packet-switched networks - instead of listening to phone lines, the government could now sniff packets, and a "wiretap" necessarily caught not just its target and whomever she talked to on the phone, but its target and ALL of her internet contacts, websites visited, etc.

The second was the passage of the FISA Amendments Act, passed in July 2008, which 1) provided legal immunity for telecom companies who assist the NSA in their intelligence gathering activities, 2) lessened the requirements of specificity for authorization of intelligence-gathering, and 3) permitted the Executive Branch to authorize warrantless electronic surveillance for one-year periods for non-Americans abroad.

Caveats: there were other significant amendments to surveillance law in 2006-2007. I have selected those amendments which I believe, based on the information I've seen, to be most relevant to the recent dustup. The FISA Amendments Act was staunchly defended by the incoming Obama administration, which pushed for and received its reauthrization in December of 2012 just prior to its sunsetting. I voted for Obama, but am critical of much of his policy in this area.

There is a necessarily partisan cast to some of this discussion, and I will reveal my bias frankly: I believe that while this President is to be held accountable for the actions which occurred during his watch, the legal framework for the intelligence gathering currently in the news was put in place during the predecessor administration. It is good that folks are complaining about it now. One has more credibility if they were also complaining about it then, when the actual laws were passed that birthed the chickens which have now come home to roost.

But I do not wish for THIS thread to be a discussion about how good and bad this president is; I want to discuss the legal framework which brought us to this pass.

 

[BenBurch]

Well, I have no problems with the legal framework. I saw what those acts would do at the time, and warned the GOP that they better think about this carefully as we Democrats would have control of the results eventually and we'd see any way they had abused it.

Funny thing is, it appears that the previous administration did not abuse these powers in any significant way.

Nor has this one, unless you think the powers granted cannot be used without abuse?

 

[iangoeswest]

@BenBurch -

I am agnostic as to whether those powers have or haven't been abused, since we have no accounting as to what has been done with them with sufficient clarity for me to opine on. The government's track record in terms of candor about their spy activities is not great (nor would I expect it to be).

I agree that no signficant evidence has surfaced of abuse of the powers in the sense of going beyond their authority or intended purpose.

I find the entire system problematic from a Constitutional perspective in a structural sense. If Congress is briefed on matters but is not at liberty to debate them publicly or report to their constituents, there may be technical compliance with Article I but it is a hollow formality (I would argue that the Authorization for the Use of Military Force of September, 2001 from which much of the Executive Authority of the more controversial activities of the past decade is drawn was an abdication of the spirit of Congress' job if being a technically "legal" act). Likewise, a "court" which operates in private and is not reviewable in any mechanism open to public scrutiny - combined with the lessened standards of the USA PATRIOT / FISA framework - does not leave me with assurance that it is acting within the Article III "case or controversy" requirements.

All of which is to say, when the President says that the Executive actions are occurring with the approval of Congress and the Courts, there is some technical sense in which he may be speaking accurately, but I find it a tortured - or at least stretched - interpretation.

None of which is to say any of these actions are wrong or unnecessary. I can't know that, because I don't actually know what they're doing except by broad strokes. But whether the actions are right or necessary does not interest me so much as whether they comport with the Constitution; there are many things which I find desirable from a policy perspective - gun control, campaign finance reform - which face Constitutional impediments.

My opinions, obviously, are just coalescing, but I thought it useful to discuss the legal framework rather than the partisan particulars. So, to make a short answer long, I supppose I believe that the powers granted under these provisions sweep too broadly, and while that opinion is subject to change on the basis of concrete examples of their having been used to "foil" terrorist plots, I feel them to be both afield of the 4th Amendment and to create more hay, rather than finding more needles.

I'm open to being shown to be wrong - mine are closer to "feelings" than fully-developed "opinions" - but I'm gonna need a little more explanation that "trust me" from the government. I note that the President "welcomed" debate on these issues; we will see if they choose to release the information sought by telecom providers in the last week (vis a vis the number of FISA requests) in order that we might be informed enough to begin to have that debate.

 

[casebro]

The Wiki article on the Patriot Act has a section 'controversies'. From reading it, it would seem that the SCOTUS and lesser courts have shot down every major section as unconstitutional. How FISA itself has fared I haven't looked.

So, however NSA justifies itself as being legal, it's legal framework may still be shaky.

 

[BenBurch]

The Wiki article on the Patriot Act has a section 'controversies'. From reading it, it would seem that the SCOTUS and lesser courts have shot down every major section as unconstitutional. How FISA itself has fared I haven't looked.

So, however NSA justifies itself as being legal, it's legal framework may still be shaky.

It's been ruled on before.

 

[iangoeswest]

The Wiki article on the Patriot Act has a section 'controversies'. From reading it, it would seem that the SCOTUS and lesser courts have shot down every major section as unconstitutional. How FISA itself has fared I haven't looked.

So, however NSA justifies itself as being legal, it's legal framework may still be shaky.

I went back and re-read that article; I don't think it says what you suggest it says, and what it does say is wrong in relevant particulars.

In short, the Supreme Court has ruled no part of the PATRIOT Act unconstitutional. The single SCOTUS case discussed, US v. Jones, did involve both new technology and the 4th amendment, but did not implicate the PATRIOT Act in any way.

A couple of scattered lower courts have held against the use of National Security Letters - essentially, Executive Branch authorizations for warrantless searches - but these were individual rulings of limited precedential value - the Executive Branch (explicitly under the 2008 FISA Amendment) continues to engage in warrantless searches of the sort authorized by NSLs.

The only appellate decision of which I am aware which found any part of FISA unconstitutional was a decision which suggested that Congress could not pass a law abridging the President's Commander-in-Chief powers; in other words, to the degree that FISA has unlawful application it is because it might constrain the Executive in their surveillance (of foreign enemies). Not a line of thinking that should give much comfort to the privacy minded.

So, the USA PATRIOT Act and the FISA reauthorization are alive and well and largely unimpeded by the courts; hence my assertion that they are at the legal root of the recent privacy issues cycling through the headlines.