As Wells noted when it first came out last month, the Brennan Center has a new report: What Went Wrong With the FISA Court. Despite the title, the report is really a condensed history of the Foreign Intelligence Surveillance Court (FISC or the Court), with the Brennan Center’s judgements about what has gone wrong with the Foreign Intelligence Surveillance Act (FISA) itself. The report also provides a vehicle for the Brennan Center to highlight proposals for surveillance reform, some, but not all of which, relate to the upcoming sunset of certain FISA provisions, unless Congress extends them this spring.
The report will surely be a useful resource for students, policymakers and observers of the FISC. Co-authors Liza Goitein and Faiza Patel, with whom I’m always pleased to debate and even come to occasional meetings of the mind with (see Liza’s and my joint op-ed in the Wall Street Journal last year, here), present a readable and concise history of the Court and the significant amendments to FISA since 1978. The report contains a number of recommendations. This post focuses on three of them:
1. “End Programmatic Surveillance”…”or If Programmatic Surveillance Continues, Reform It”
One of the major criticisms of the government’s use of FISA to emerge in the recent debate is that the Court has shifted from approving individual surveillance or search requests directed at a particular agent of a foreign power or foreign power, to a practice of approving “programmatic” requests for collection authority. The criticism is a repudiation of not only the bulk telephone metadata program, but also of section 702 of FISA, which was added to the Act in 2008. Section 702 authorizes the Director of National Intelligence and the Attorney General to issue directives to communications service providers under a set of procedures and certifications that have been approved by FISC.
Referring to the collection authorized by Section 702 as “programmatic” can lead to misunderstanding. Acquisition under section 702 is programmatic in the sense that the Court approves rules and procedures by which the acquisition takes place. The Court does not, under section 702, make a substantive finding about a particular target. It does not approve individual requests for collection. Instead, the FISC approves the rules and procedures, and then intelligence community personnel abide by a decision-making process in which there are actual intended targets of acquisition. In his February 4, 2015 remarks at Brookings, ODNI General Counsel Bob Litt described it this way:
“Contrary to some claims, this [section 702 collection] is not bulk collection; all of the collection is based on identifiers, such as telephone numbers or email addresses, that we have reason to believe are being used by non-U.S. persons abroad to communicate or receive foreign intelligence information.”
Regardless of the characterization, however, it is correct to say that section 702 allows the intelligence community, not the Court, to make the substantive determination about what targets to collect against. Those decisions are made consistent with intelligence community leadership and policymaker strategic priorities, which Litt also discussed in his February 4th remarks. Targets are selected based on their anticipated or demonstrated foreign intelligence value. And targeting decisions are subject to continuous oversight by compliance, legal and civil liberties protection authorities internal to NSA, and external at the Office of the Director of National Intelligence and the Department of Justice.
The question, then, is why was the change needed in 2008? And, if the Brennan Center’s recommendation were accepted, what would be the alternatives? What follows is a shorthand answer to the first question (which I previously addressed here): basically, the change was needed because the pre-2008 definitions in FISA technically required that the government obtain a probable-cause based order from the Court in order to collect the communications of Terrorist A in Afghanistan with Terrorist B in Iraq. This was a problem for at least two reasons: one, as non-U.S. persons outside the United States, Terrorist A and Terrorist B are not entitled to Constitutional protections; and two, the bureaucratic manpower it took to supply and check facts, prepare applications and present these matters to the Court were substantial. As a result, only a subset of targets who may have been worth covering for foreign intelligence purposes were able to be covered.
This is an extremely condensed version of the justification for 702 and does not cover additional reasons that 702 was sought. But, from my perspective, it is the bottom line, and one that cannot be overlooked when suggestions are made to scale back 702 authority.
The Brennan Center appears to miss this point, as the report states:
With the exception of e-mails stored in the United States, the new law [the FISA Amendments Act] had no impact on the government’s ability to collect the communications of foreigners with other foreigners. (p.26)
I’m not sure how the authors get there. The FISA Amendments Act provided a statutory mechanism to compel providers to assist in the acquisition of communications for targets “…reasonably believed to be located outside the United States…” [50 U.S.C. § 1881a] Contrary to the report, the FISA Amendments Act does have an impact on the government’s ability to collect the communications of foreigners with other foreigners.
Which is not to suggest that the communications of U.S. persons are not obtained. Section 702 focuses on the target who must be a non-U.S. person reasonably believed to be outside the United States. A communication from Terrorist C in Yemen with Unknown Person D in Minneapolis might be of significant intelligence value, and would certainly be a communication that the intelligence community should be collecting from a national security perspective. That is also not to suggest, however, as the Brennan Center Report does, that the driving force behind the FISA Amendments Act was to “capture [the] communications to, from, or about U.S. persons.” (p.26).
Which brings us to the second question I posed above—what are the alternatives if Section 702 authority, were, as the Brennan Center recommends, repealed? One option is to revert to the pre-2008 practice: obtaining Court approval based on probable cause for non-U.S. persons located outside the United States. The operational result would be to forego collection on legitimate targets of foreign intelligence collection, thereby potentially losing insight on important national security threats. Given the challenging and complex national security picture the United States faces today, I would think that most responsible leaders and policymakers would say, “no thanks” to that option.
A second option would be to conduct the acquisition, but without FISC supervision. This would be a perverse outcome of the surveillance debate. It is also, probably, in the current environment, not possible as a practical matter, because an additional reason 702 was needed was to be able to serve lawful process, under a statutory framework, on communications service providers, in order to effectuate the collection.
In light of these options: collect less information pertaining to important foreign intelligence targets, or, collect it without statutory grounding (including Congressional oversight requirements) and judicial supervision, the collection framework established under 702 looks pretty good.
2. “Introduce Adversarial Process”
The Brennan Center report supports proposals that have gained attention since the Snowden disclosures to introduce adversarial process to FISC proceedings. The report rejects proposals to explicitly authorize the Court to call upon an amicus curiae in situations it deems appropriate, by suggesting that the Court already has this ability, and has not exercised it. It’s an interesting point: if the Court currently has the ability to call on an amicus curiae (as the Court of Review did in 2002), and has not done so, could that mean that the Court knows it could do it but has not felt it necessary?
Instead, the Brennan Center report calls for a special advocate that would “be notified of cases pending before the court, have the right to intervene in cases of their choosing, and are given access to all materials relevant to the controversy in which they are intervening.” (p.46). If this type of special advocate were created by legislation, here is just a snapshot of what it would mean:
- We would be providing greater ability to challenge surveillance to foreign intelligence targets, than to subjects of criminal investigation domestically, for whom wiretap applications are approved in camera ex parte by district court judges and magistrates.
- We would be endorsing the concept of litigating surveillance conducted for national security purposes before it takes place, placing intelligence operations and national security at risk.
- We would be creating an entire new bureaucracy duplicating the legal and oversight functions that the Justice Department, under the leadership of the Attorney General, and the Court, comprised of independent federal district court judges, perform.
There are currently many different components involved in the oversight of activities under FISA. They include: internal compliance offices at the collecting agencies, Offices of General Counsel, Inspectors General, the Office of the Director of National Intelligence, the Department of Justice, the FISC, Congressional oversight committees and the newly invigorated Privacy and Civil Liberties Oversight Board. If there is a desire to strengthen the oversight and accountability of activities conducted under FISA, focus should be given to making the existing structure more effective, not adding more bureaucracy.
3. “Restore the Primary Purpose Test”
This recommendation could alternatively be called “re-build the ‘wall’.” The report’s least persuasive recommendation is that FISA should revert to its pre-9/11 standards that resulted in a “wall” separating criminal investigators and intelligence investigators chasing the pre-2001 al Qaeda threat. It is a provocative recommendation in that it is a clear call to fully push the pendulum back to the pre-9/11 construct. Given the way that the national security and law enforcement communities have implemented various recommendations to work collaboratively, share information, and fulfill the mandate to prevent acts of international terrorism, reverting to the old legal standards that led to the creation of the “wall” would involve undoing many of the positive changes that have taken place in the last decade-plus. In addition, similar to section 702 (discussed above) the purpose standard is not one of the provisions that is up for sunset this year; the provision is currently permanent, unless there were to a new effort to undo it.
The report attempts to place distance between the prevailing pre-9/11 interpretation of the “primary purpose” standard, the implementation of procedures that were intended to support that interpretation, and the practical effects. In other words, the report suggests that the legal standard did not demand the rules and restrictions that were put in place. But the reality is that the rules and restrictions were put in place, and the “wall” was the result.
The actual, practical impact of the "wall" has been described in various statements before Congress by current and former government officials. One such compelling testimony was the 2003 statement before the Senate Judiciary Committee of Patrick Fitzgerald, the former United States Attorney in the Northern District of Illinois. New York served as the hub of the FBI and DOJ’s efforts against al Qaeda prior to the 9/11 attacks. Fitzgerald was a lead prosecutor in New York at the time who worked closely with the FBI’s New York office. He had first-hand experience with the “wall”:
“It is nearly impossible to comprehend the bizarre and dangerous implications that "the wall" caused without reviewing a few examples. While most of the investigations conducted when the wall was in place remain secret, a few matters have become public. I was on a prosecution team in New York that began a criminal investigation of Usama Bin Laden in early 1996. The team -- prosecutors and FBI agents assigned to the criminal case -- had access to a number of sources. We could talk to citizens. We could talk to local police officers. We could talk to other U.S. Government agencies. We could talk to foreign police officers. Even foreign intelligence personnel. And foreign citizens. And we did all those things as often as we could. We could even talk to al Qaeda members -- and we did. We actually called several members and associates of al Qaeda to testify before a grand jury in New York. And we even debriefed al Qaeda members overseas who agreed to become cooperating witnesses.
But there was one group of people we were not permitted to talk to. Who? The FBI agents across the street from us in lower Manhattan assigned to a parallel intelligence investigation of Usama Bin Laden and al Qaeda. We could not learn what information they had gathered. That was "the wall." A rule that a federal court has since agreed was fundamentally flawed -- and dangerous.”
The federal court that, I believe, Fitzgerald’s testimony refers to is the 2002 decision In Re Sealed Case, issued by the Foreign Intelligence Surveillance Court of Review. The Brennan Center report provides the background for how the case reached the Court of Review, but in short, the Court rejected the notion that the “primary purpose” test was required by the 1978 version of FISA.
For all the criticisms of the USA Patriot Act of 2001, changing FISA’s standard to “a significant purpose” and removing the justification for the old “wall” is one that has been overwhelmingly understood as an important substantive correction. There is no reason to go backwards.