In 2007, One Judge Said No to the NSA

Last week, the government quietly released a new cache of court filings and orders from late 2006 and early 2007 that together reveal a watershed moment in the government’s effort to secretly expand its authority to conduct surveillance on American soil—without ever asking Congress or the public. Instead, the government once again asked the Foreign Intelligence Surveillance Court (FISC) to belatedly bless certain aspects of the President’s Surveillance Program, which was initiated by President Bush without judicial or legislative approval in 2001.

In sealed court filings, the government urged the FISC to transform the carefully circumscribed surveillance regime laid out in the Foreign Intelligence Surveillance Act (FISA). The government’s proposal would have stretched FISA’s definition of a “facility” used by “foreign agents” to include telecommunications switches carrying huge amounts of Internet traffic, with low-level NSA analysts—rather than FISC judges—making individual determinations about whose communications traveling over those switches to target. But Judge Roger Vinson rejected the government’s attempt to rewrite the statute to permit warrantless surveillance inside the United States. When Judge Vinson refused to go along in April 2007, intelligence officials turned to Congress for new surveillance authority; the result was the Protect America Act and, ultimately, the FISA Amendments Act of 2008 (FAA).

The new documents tell us a great deal. They show, once again, how the government pursued extreme legal theories in one-sided and secret FISC proceedings, in order to avoid any public deliberation on the sweeping new surveillance powers intelligence officials were demanding. And they reinforce key points about surveillance that is occurring today under the FAA, including the government’s copying and scanning of huge amounts of Internet traffic in search of any reference to its targets. Here are several observations drawn from the newly disclosed FISC materials: 

1. The documents provide new details about the moment the FISC finally balked at the government’s novel and expansive legal theories. As DOJ lawyers set out to persuade the FISC to endorse sweeping new surveillance under FISA, their filings reveal a view of the FISC as a pliable and willing partner. They applauded the FISC’s history of expansively reinterpreting FISA in secret, as it had done in approving the bulk collection of Internet metadata and phone records. In a telling passage, the government called Judge Colleen Kollar-Kotelly’s Internet-metadata opinion a “ground breaking and innovative decision.” (As Brett Max Kaufman and I have explained elsewhere, “innovative” is one way of describing the opinion’s unconvincing effort to jam a square peg into a round hole.) DOJ urged the FISC to adopt the same “flexible” approach with respect to electronic surveillance under FISA, this time by reading the statute to permit individual probable-cause determinations by NSA analysts rather than the FISC judges. They also urged the FISC to authorize, in advance, the routine use of “emergency” procedures to target unknown U.S. persons for surveillance, without Attorney General approval or after-the-fact judicial review as required by FISA.

Judge Vinson rejected these proposals as “extra-statutory” distortions of the FISA scheme, observing that they endangered Fourth Amendment rights and thereby contravened the plain intent of Congress in enacting FISA. One might forgive the government if the decision came as a surprise: Judge Vinson’s stance represented a new posture for the FISC, which had repeatedly proven willing to rewrite targeted surveillance             laws at the government’s urging in order to allow dragnet spying on Americans.

2. Judge Vinson’s order provides a roadmap to the constitutional defects that plague FAA surveillance to this day. The April 2007 FISC Order is primarily framed as a statutory analysis, but it addresses many of the features that render FAA surveillance unconstitutional today. In particular, Judge Vinson observed that the government’s proposal would eliminate any individualized judicial review of the government’s targeting decisions. Instead, it would have had the FISC “engage in a highly abstract and generalized probable cause finding”—one that “could not possibly restrain executive branch decisions to direct surveillance at any particular individual, telephone number or e-mail address.” Ultimately, he noted, the very purpose of pre-surveillance judicial review and individualized findings of probable cause under FISA was to protect Fourth Amendment rights—yet the government proposed to do away with those crucial safeguards.

Surveillance under the FAA suffers from all these same infirmities, but the discretion given to executive officials is even more sweeping, and the FISC’s role even more limited. Under the FAA, the government is not limited to targeting individuals it has probable cause to believe are associated with certain terrorist organizations; instead, officials can target any foreigner abroad for a foreign-intelligence purpose, without ever identifying those targets to the FISC. In the process, the government collects Americans’ communications in vast quantity. As the ACLU has laid out in several pending criminal cases, these are precisely the reasons that FAA surveillance violates both the Fourth Amendment and              Article III.

3. The documents undermine the PCLOB Report’s justification for “about” surveillance. In its report on FAA surveillance, the Privacy and Civil Liberties Oversight Board offered a benign-sounding explanation for one of the NSA’s most troubling surveillance practices—so-called “about” surveillance, in which the NSA scans the content of millions of Internet communications for any reference to a targeted email address or other selector. The report said that “about” surveillance was borne of technical necessity, suggesting that the NSA was unable to distinguish metadata from content because of the ever-changing structure of Internet communications. The report never addressed the obvious question of why, even if “about” surveillance was technically unavoidable, the government should be permitted to keep communications that are neither to nor from its targets, rather than destroying them upon recognition or taking other reasonable steps to minimize the intrusion on non-targets.

The new FISC documents answer this question and, in the process, undercut the PCLOB’s findings. They make clear that the government pursued “about” surveillance in its own right rather than stumbling into it as a byproduct of targeted surveillance. In making its case to the FISC, the government pointed to “about” surveillance as one of two principal “advantages” to its innovative approach to FISA. In one memorandum, executive officials explained that the proposed procedures would allow the NSA to collect new information that was “not obtained under the customary approach of collecting only communications to and from specific e-mail addresses.” The documents show that the government purposely sought to examine the communications of millions of people who are not even NSA targets—something that was unthinkable under traditional FISA—and the PCLOB report confirms that this is precisely what the NSA is doing today.

4. The documents never should have been withheld from the public in the first place. In 2007, when word of these rulings reached the public, the ACLU petitioned the FISC to release the opinions, even in a redacted form. A different FISC judge, Judge John Bates, rejected that request, stating that “[t]he benefits from a partial release of declassified portions of the requested materials would be diminished, insofar as release with redactions may confuse or obscure, rather than illuminate, the decisions in question.” With the release of these opinions—and all the public can learn from them, heavily redacted though they are—that logic is self-evidently false. The public has a right to know how the FISC interprets the scope and meaning of surveillance laws that affect millions. 

About the Author(s)

Patrick C. Toomey

Staff Attorney at the ACLU National Security Project