The Fog of FISA

Kevin Poulson, writing for the WIRED magazine blog "THREAT LEVEL", reported on March 6, 2008 that Mr. Pasdar, now CEO of New York-based Bat Blue told Threat Level:

"I wanted to put some access controls around it; they vehemently denied it. And when I wanted to put some logging around it, they denied that."

Mr. Pasdar was not permitted to name the carrier, but Mr. Poulson reports that: 

(1) Mr. Pasdar's affadavit for the Government Accountability Project is nearly identical to an affadavit contained in a lawsuit filed against Verizon Wireless in 2006; 

(2) Because the data center was a clearing house for all Verizon Wireless calls, the transmission line provided the Quantico recipient direct access to all content and all information concerning the origin and termination of telephone calls placed on the Verizon Wireless network as well as the actual content of calls; 

(3) The transmission line was unprotected by any firewall and would have enabled the recipient on the Quantico end to have unfettered access to Verizon Wireless customer records, data and information; and 

(4) Any customer databases, records and information could be downloaded from this center.

On January 17, 2007, former Attorney General Alberto Gonzales stated in a letter to the Senate Judiciary Committee that the Terrorist Surveillance Program would not be reauthorized by the President, and that any electronic surveillance that was occurring as part of the Terrorist Surveillance Program would henceforth be conducted subject to the approval of the Foreign Intelligence Surveillance Court (FISC). On January 18, 2007, the Washington Post reported that Bush Administration officials would not discuss details of the proposed FISC supervision of the surveillance program.

For example, Bush Administration officials would not say whether they would be required to seek a warrant for each person they sought to monitor or whether the FISC has issued a broader set of orders to cover multiple cases, and an official who spoke on condition of anonymity characterized the change as "programmatic" rather than based on warrants targeting specific cases.

During oral arguments in January 2007 by Federal attorneys appearing before the Sixth Circuit Federal Appeals Court to seek reversal of the Federal District Court judgment against the National Security Agency, the government maintained that the President had the authority to resume the Terrorist Surveillance Program outside of of the guidelines legislated under FISA. The passage of the Protect America Act in August 2007 (PAA of 2007) temporarily codified important elements of the illegal Terrorist Surveillance Program.

STATE SECRETS PRIVILEGE

As the President and members of Congress have debated various proposals to revise FISA, it is clear that the President and many members of Congress do not have much appreciation for the Constitution. Considering all of the misinformation that has been disseminated by defenders of the Bush Administration's Terrorist Surveillance Program, the most disingenuous argument is that critics of the Terrorist Surveillance Program have been unable to demonstrate that legal and/or constitutional rights of any Americans have been violated. It is a fact that the Bush Administration has been using the "state secrets" privilege to prevent any plaintiffs and potential plaintiffs from obtaining most of the information which is needed to prove violations of FISA and/or the Fourth Amendment to the Constitution, and it is also a fact that the Federal government has been using the "state secrets" privilege to ask Federal Courts to dismiss lawsits filed against the Federal government and to dismiss lawsuits filed against the telecommunication providers that assisted with the Terrorist Surveillance Program. The significance of the use of the "state secrets" privilege in these lawsuits has been verified by the legal motions filed by the Federal government in the lawsuits filed against the telecommunication providers, and it also is verified by the information contained in the judgment issued in July 2007 by the Sixth Circuit Federal Appeals Court to dismiss the lawsuit filed by the ACLU et al. against the National Security Agency and co-defendants.

The dismissal in July 2007 by the Sixth Circuit Federal Appeals Court (by a vote of 2-1) of the ACLU lawsuit, against illegal electronic surveillance directed by the National Security Agency, did make the plaintiff's case moot with respect to the failure of the plaintiffs to establish their right to sue (which was because the Federal government used the "state secrets" privilege to prevent the plaintiffs from obtaining the information needed to show that their constitutional rights had been violated and that FISA had been violated). There are several legal flaws (most specifically with respect to potential injury in violation of the First Amendment to the Constitution) that were detailed by the Sixth Circuit Federal Appeals Court with respect to the Federal District Court decision that had been issued on August 17, 2006 in favor of the ACLU. However, contrary to allegations made by defenders of the Terrorist Surveillance Program, the Sixth Circuit Federal Appeals Court did not determine that the plaintiffs legal and constitutional rights had not been violated, and the Sixth Circuit Federal Appeals Court did not rule that no evidence existed to support the allegations in the plaintiff's lawsuit (although the Appeals Court noted the difficulty faced by the plaintiffs in accessing evidence that was being shielded by the "state secrets" privilege), and the Sixth Circuit Federal Appeals Court did not rule that the plaintiff's lawsuit was frivolous (the judge who wrote the lead opinion specifically mentioned that the issues raised by the plaintiffs were not frivolous), and the Sixth Circuit Federal Appeals Court did not rule that the plaintiff's lawsuit was moot because the Terrorist Surveillance Program was alleged to have been terminated. The Sixth Circuit Federal Appeals Court dismissed the lawsuit by the ACLU against the NSA because the plaintiffs could not establish (due to the successful assertion of the "state secrets" privilege by the government) that they had legal standing to sue, and this prevented the Court from exercising jurisdiction over the issue of whether the Terrorist Surveillance Program had violated FISA and/or the Fourth Amendment to the Constitution.

Legitimate national security concerns certainly exist, but it is far too easy for the Federal government to obstruct litigation through the process of withholding information from plaintiffs by alleging that release of such information would endanger the national security. It should be obvious, but obviously it is not obvious, that the Federal government often alleges that revelation of certain information will endanger the national security in situations where revelation of such information would cause only embarrassment. Officially, the Supreme Court did not recognize the "state secrets" privilege until the landmark 1953 decision in UNITED STATES v. REYNOLDS, and it should not surprise anyone that (despite the tortured logic in a Federal Appeals Court decision in 2005 concerning this case) the Federal Government had invoked the "state secrets" privilege fraudulently because there was no justifiable national security issue involved in that case. A naive person might reason that a common-law rule of evidence (which is neither mentioned in, nor implied by, the language in our Constitution) could not be used as a basis for obstructing those rights which are delineated in our Constitution. However, the "state secrets" privilege can be used and has been used in certain cases to nullify the Bill of Rights.

Senator Edward Kennedy (D-Massachusetts), Senator Arlen Specter (R-Pennsylvana) and Senator Patrick Leahy (D-Vermont) are pursuing legislation that would require judges to review evidence, in camera and with other proper safeguards, in situations in which the government tries to shield evidence by asserting the "state secrets" privilege. Although Supreme Court guidelines already require this approach to some degree, judges often exclude evidence, based solely on the declarations made by government attorneys, without examining the actual evidence to determine whether revealing all or some of the evidence really would endanger our national security. The proposed legislation would also require judges to seek ways to accommodate legitimate lawsuits (such as by providing expurgated versions of documents) in situations in which it is determined that some evidence must be excluded because revealing such evidence would endanger our national security. Although this approach is already required to some degree by Supreme Court guidelines, some judges are quick to dismiss cases in which the "state secrets" privilege is asserted by government attorneys. It was never intended that common-law principles would be nullified by the Constitution, but the effect of common-law principles should not supersede the Constitution.

One of the hollow argument raised by supporters of the Bush Administration is the allegation that critics of the Terrorist Surveillance Program want foreign terrorists to be protected by the Fourth Amendment to the Constitution. Critics of the Terrorist Surveillance Program are NOT arguing against the surveillance of foreign intelligence targets, and neither warrants nor probable cause is needed to direct surveillance against foreign intelligence sources. In August 2007, Director of National Intelligence Mike McConnell indicated that an adverse Foreign Intelligence Surveillance Court (FISC) ruling in Spring 2007 led to efforts by the Bush Administration to lobby Congress for the Protect America Act (PAA) that was passed at the beginning of August 2007 (just before Congress left Washington for its summer recess and in response to fake threats of terrorist attacks that were circulated by the Bush Administration and the Republicans in Congress). Also in August 2007, House Minority Leader John Boehner stated that the FISC had issued a ruling prohibiting intelligence agents from intercepting foreign-to-foreign calls passing through the United States. FISA could be amended to allow intelligence agencies to monitor foreign-to-foreign communications that pass through circuits in the U.S., but Director of National Intelligence Mike McConnell told the Senate Judiciary Committee on September 25, 2007 that he Bush Administration would not accept this accommodation. In his testimony before the Senate Judiciary Committee in September 2007, Mr. McConnell stated that he would oppose any language that would amend FISA only to exclude "foreign-to-foreign" communications from the scope of FISA because the intelligence-gathering agencies cannot demonstrate with certainty that those people with whom their targets will communicate would be exclusively outside the United States and because such language would not enable intelligence-gathering agencies to monitor communications of foreign intelligence targets outside the United States who may communicate with a “sleeper” or co-conspirator who is inside the United States. These are specious arguments because FISA, as it existed prior to the PAA of 2007 (which consisted of temporary amendments to the original FISA legislation), did not require intelligence-gathering agencies to predetermine whom their foreign intelligence targets would contact, and also did not require intelligence-gathering agencies to guarantee that communications from foreign intelligence targets would be exclusively between persons located outside the United States.

At a meeting on March 3, 2008, and in response to a question from David Kris (a former Federal prosecutor), Assistant Attorney General for National Security Kenneth Wainstein said that FISA as it existed before (and as it exists after) the effective life of the PAA of 2007 did not (and does not) apply to foreign-to-foreign communications that are routed through a location in the United States. The primary concern according to Mr. Wainstein is e-mail, because "essentially you don't know where the recipient is going to be" and so intelligence agencies would not know in advance whether the communication is entirely outside the United States. The surveillance powers sought by the President and his subordinates via the PAA of 2007, and via pending FISA legislation, far exceed the authority necessary to circumvent the alleged impediments imposed by FISA relative to foreign intelligence targets. Despite the obfuscations by the Attorney General and the Director of National Intelligence, the Bush Administration does not want to admit that it has engaged in massive unfiltered electronic surveillance, without warrants and without probable cause, of all electronic traffic coming into the United States. The Bush Administration wants to continue this massive unfiltered electronic surveillance, without warrants and without probable cause, in a wide variety of circumstances, involving U.S. citizens and other legal U.S. residents, that would have required warrants under FISA prior to passage of the PAA of 2007 and that now require warrants under FISA subsequent to the expiration of the PAA of 2007. The Bush Administration wants Congress to legitimize this massive unfiltered electronic surveillance, without warrants and without probable cause, involving U.S. citizens and other legal residents, and the Bush Administration wants to shield this illegal activity from the public by providing retroactive immunity to the telecommunication providers that assisted with the Terrorist Surveillance Program.

THE TELECOMS

The defenders of the Terrorist Surveillance Program are trying to insulate the telecommunication providers that assisted with the illegal Terrorist Surveillance Program from any damage that would ensue if it is ultimately determined in Federal Court that these telecommunication providers did not receive adequate legal authorization from the Bush Administration before these telecommunication providers released access of customer's electronic communications and other information to the Federal government. The teary-eyed homily about the telecommunication providers merely doing their patriotic duty lost some of its emotional appeal when it was revealed in January 2008 that one of these telecommunication providers temporarily pulled the plug on surveillance due to a delay in payment by the government. Official and unofficial spokespersons for the Bush Administration have issued dire warnings that the telecommunication providers that assisted with the Terrorist Surveillance Program will not be willing to co-operate with legal electronic surveillance if these telecommunication providers are not granted immunity from approximately 40 lawsuits that have been filed against them. To help simplify the simple-minded argument advanced by defenders of the Terrorist Surveillance Program, we (through our elected representatives in Congress) are being requested to grant retroactive legal and financial immunity to the telecommunication providers for illegal activity in which they may have engaged by assisting with the Terrorist Surveillance Program, and in return these telecommunication providers will agree to honor legal court-ordered warrants. But, heaven forfend, if retroactive legal immunity is not granted for illegal activity in which the telecommunication providers may have engaged by assisting with the Terrorist Surveillance Program, there is a veiled threat that these telecommunication providers will engage in additional illegal activity by refusing to honor legal court-ordered warrants. Now that certainly sounds reasonable. But seriously folks, the Bush Administration is primarily concerned with preventing the public and potential plaintiffs from discovering the extent of the illegal activity in which Bush Administration officials were engaged, and this yeoman effort to provide immunity for the telecommunication providers that assisted with the Terrorist Surveillance Program is just the Bush Administration's method of enlisting Congress in the obstruction of justice.

Some people have commented that the telecommunication providers that assisted with the Terrorist Surveillance Program may not have done anything illegal based on interpretation of Title 18 U.S.C. Sec. 2511(2)(a)(ii)(B) or Title 18 U.S.C. Sec. 2702(b)(8) and Title 18 U.S.C. Sec. 2702(c)(4). Although the complete answer is not known for certain, testimony to the Senate Judiciary Committee on May 15, 2007 by former Deputy Attorney General James Comey, and testimony to the Senate Judiciary Committee on October 2, 2007 by former Assistant Attorney General (for the Office of Legal Counsel) Jack Goldsmith, indicates that the certifications by the Justice Department to the telecommunication providers did NOT meet the requirements outlined in Tile 18 U.S.C. Sec. 2511(2)(a)(ii)(B), at least for most of the period during which the Terrorist Surveillance Program was operative. The Bush Administration has promulgated some tortured legal rationales, but it is a legal maxim that words in a legal statute have their plain meaning unless the statute provides for an alternative meaning. The potentially applicable exceptions to prohibited disclosures in Title 18 U.S.C. Sec. 2702 are specifically for life-threatening emergencies, and it would be impossible to establish that the necessary emergency conditions existed for all of the communications that were intercepted by the intelligence agencies throughout the duration of the Terrorist Surveillance Program.

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