FISA and the Myth of the Ticking Time Bomb
A while back, I wrote a ranting post about how Congress should not go around voting on bills like the Patriot Act and new FISA legislation without, ya know, reading up on the subject. I recommended the comprehensive and very readable reference book recently published by David Kris which lays out all of the applicable law and explains how these laws work together. Evidently, nobody in Congress took that sound advice because I keep hearing drivel about how the government needs to expand FISA to deal with the “ticking bomb” or “Jack Bauer” scenario.
Let me introduce to an important legal term we lawyers sometimes use:
[Ed. note: My mother always gets really embarrassed and upset with me when in swear in public, or private, so don’t tell her I did this, OK?]
Let me tell you a little bit about what the government could do under FISA even before Congress started monkeying with it:
FISA searches without Judicial Approval:
Under 50 USC §1802 and §1822, the government can conduct electronic surveillance and physical searches without judicial approval, otherwise known as a warrant.
Here’s some relevant language from the statute:
notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance [and physical searches] without a court order … to acquire foreign intelligence for periods of up to one year if the Attorney General certifies in writing under oath
Three essential requirements:
1) Exclusivity — the surveillance must be directed solely at communications channels used exclusively by official foreign powers; or the acquisition of the data must be solely from property owned and exclusively controlled by a foreign power; or the physical search must be directed at property used exclusively be a foreign power.
So, say country X has a nationalized telephone company. The AG can certify an intercept. If country X has a server farm used solely by country x, we can sneak and peek, and so forth Some non state foreign powers composed of non US persons (like the PLO) or cartels made up of foreign states (like OPEC) are considered to be foreign powers. So, Al Qaida would clearly qualify.
2) There can be no substantial likelihood that the search or surveillance will infringe on a US person’s privacy interests.
3) The surveillance must be conducted in accordance with minimization procedures that are reported to Congress.
This provision has a one year certification period.
Further under 50 USC § 1805(g) the AG can authorize:
“Training” of US intelligence personnel and testing of electronic intercept equipment of live US carriers using real US citizens as guinea pigs. The testing and training cannot exceed 90 days without an extension by the AG and the information collected is supposed to be destroyed as soon as the testing is completed (or sooner if feasible depending on the testing requirements—basically as soon as possible) but in any case within 90 days unless the AG certifies that it should be kept longer.
Yep, Firepups, if the intelligence agency wants to test new equipment or train their techies in how to listen in, they can get on the wires and listen in while you fight with your mother over the phone, talk sexy with your significant other, write embarrassing email and have a good chuckle over in the lunch room, because there are no minimization requirements on the training. Good to know that an AG—like Abu Gonzales—gets to decide when these intercepts are destroyed. I feel so much better knowing that, don’t you? (gosh the snark is all the way up to my knees already!)
Lastly, under both FISA and Title III, specifically 18 USC § 2518, which deals with domestic wiretaps used in regular criminal cases: the AG could ALWAYS authorize emergency wiretaps without a warrant for the Jack Bauer scenario. The sole requirement is that the Emergency he is certifying must:
1) specifically involve immediate danger of death or serious bodily injury, or
2) conspiracy activities threatening the national security interest, or
3) conspiracy activities involving organized crime that must be addressed before a warrant can be obtained.
This is under the regular criminal rules!!!! All the AG has to do under either FISA or the Rules of Criminal Procedure is certify and wiretap, then apply for a warrant within 48 hours.
The AG has always had all the power he needed for the Jack Bauer scenario. The Constitutional justification put forth for this by some legal scholars is that the authority for this rests on the 4th Amendment exception for exigent circumstances, though the legislative history in the statutes is not explicit on this point. The exigent circumstances exception allows other warrant-less searches to prevent destruction of evidence (like flushing the dope down the john) or to prevent harm to a person (so if I hear the hostage screaming inside, I don’t have to wait for a warrant before I break down the door to save her).
Another source of authority under existing FISA laws for the AG to authorize warrantless wiretapping and physical searches is under 50 USC §1811 and §1829. Notwithstanding any other law, the AG may authorize electronic surveillance, physical searches, or pen/trap surveillance to acquire foreign intelligence information for a a period not to exceed 15 days after the declaration of war by Congress.
Can an argument be made that the AUMF triggers this provision? I would not be comfortable arguing that in court, but maybe John Yoo doesn’t suffer from my delicate sensibilities.