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What's the Big Secret?

the breakfast table
entries
12345678910
from: Marty Lederman
to: Patrick Radden Keefe, Orin Kerr, and David Kris

Eureka—the Government Admits It's Been Breaking the Law!

Posted Tuesday, Aug. 28, 2007, at 4:35 PM ET

Dear All,

That's quite a plateful of unanswerable questions, Patrick! I'll take you up on a couple of your offerings here and let Orin and David sample the rest.

You are entirely correct that the primary controversy concerns communications in which one party is in the United States and another is abroad. The NSA might intercept such communications using either of two models. Caveat: This is oversimplifying dramatically—you're right that there are probably countless different models, or, as our soon-to-be-departed AG would put it, "programs."

First, the NSA might "target" its surveillance directly at the U.S. person's "facilities" and thereby pick up all or many of that person's communications, including (but not limited to) those with persons overseas. Back in the old days, this might have meant a wiretap on your phone, for example.

What does DNI McConnell have to say about such "targeting" of U.S. persons? Well, as you noted, he said that if one were to do it without a FISA court order, "[t]hat's not legal, it would be a breach of the Fourth Amendment. You can go to jail for that sort of thing." (My italics.)

To which I say: Eureka! Someone in the administration finally acknowledges that the so-called "Terrorist Surveillance Program" that the president authorized from October 2001 to January 2007—which by all accounts did involve such "targeting" of the international calls of U.S. persons—was illegal: You can go to jail for exactly that "sort" of thing. It's right there in the U.S. Code. (Not that there would or should be any such prosecutions for surveillance that had the blessing of the Office of Legal Counsel at the Department of Justice—but that's another story.) Many of us have been saying for years that this surveillance outside the FISA box was illegal (see letters linked here), but to no avail. It's heartening that McConnell apparently knows how to read statutes and the Constitution better than does, say, John Yoo.

But going forward, such "targeting" of U.S. persons is almost certainly not what all the fuss is about. Which brings us to the so-called "Marty Lederman question," which I suppose I ought to know how to ask, seeing as how it appears to be my legacy.

The question, in a nutshell, is based on this basic story of what the NSA might be doing:

Assume the NSA computers are able to broadly intercept virtually all calls and e-mails going into or out of the United States, not by "targeting" Americans as such, but instead by performing a vast sweep of all foreign communications traveling over fiber-optic cables or "tubes" or some such thing (the technology is not my forte, alas) somewhere in the United States. This is an interception, in other words, of virtually all international communications involving U.S. persons—but look, Ma, no "targeting"!

Now, of course, the actual humans up at Fort Meade—and there are a lot of them—can't possibly read and listen to all international calls and e-mails that are caught up in this vast dragnet. And so those trusty NSA computers are designed to cull out the subset of communications that are most likely to contain information of value to the U.S. government—any information of value; it need not have anything to do with terrorists or other national security threats. (This culling is likely done by identifying certain characteristics of the "meta-data," rather than of the contents themselves. Meta-data-mining, as it were.) And then the actual humans at the NSA start listening to, and reading, those culled communications, many of which will involve someone in the United States. And, after reading or listening to those U.S.-person messages, NSA could then share them with other law-enforcement agencies, or perhaps store them away, in dossiers on the "overheard" Americans. It could even use what it learns as the basis for a FISA court order that allows the agency to "target" your calls directly (both foreign and domestic), if it can demonstrate probable cause that you are an agent of a foreign power.

And—here's the crux of the problem—if I'm reading the new law correctly, the NSA can now do all of this, with respect to tens of thousands if not millions of Americans' international communications, without satisfying any standards at all to the satisfaction of any neutral party (that is to say, a judge) and without any meaningful court or congressional oversight. As long as they can credibly say (as they probably could) that the sweeps of international communications are "directed at" folks who are "reasonably believed" to be overseas, rather than at their U.S. correspondents, they're home free.

And so here's that question again (or rather two questions): Is this constitutional? And, if so, should Congress authorize the NSA to do this without any check or oversight at all?

Best,
Marty

the breakfast table
entries
12345678910
from: Marty Lederman
to: Patrick Radden Keefe, Orin Kerr, and David Kris

Eureka—the Government Admits It's Been Breaking the Law!

Posted Tuesday, Aug. 28, 2007, at 4:35 PM ET
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Patrick Radden Keefe, a fellow at the Century Foundation, is the author of Chatter, which is out in paperback. Orin Kerr is a law professor at George Washington University and blogs at the Volokh Conspiracy. As associate deputy attorney general from 2000 to 2003, David Kris supervised the government's use of the Foreign Intelligence Surveillance Act, represented the Justice
Department at the National Security Council, and assisted the attorney general in conducting oversight of the U.S. intelligence community. Marty Lederman teaches constitutional law at the Georgetown University Law Center and is a frequent contributor to Balkinization and SCOTUSblog
Entry 1: Photograph of Mike McConnell by Jim Watson/Agence France-Presse/Getty Images. Entry 6: Photograph of NSA headquarters in Fort Meade, Md., by NSA via Getty Images.
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Remarks from the Fray:

How quickly we forget, it seems, that the executive, legislative, and executive are all part of the 'government.' What we have here is an argument not about what the government can and can't do, but who in the government can do it. Various people favor various branches, in large part, it seems, because they believe that certain branches share biases they trust and others share biases they don't trust.

All in all, though, a sensible person could question the independence of a bunch of ex-lawyers (judges) and a bunch of ex-lawyers (legislators) - in fact, it is mostly the executive where some variety enters into it; whether we trust them or not is yet another story. In the end, you'd think that judges, cops and lawmakers tend to be in the same camp vis a vis the freedoms of the people.

So, why bother with all this judicial review? Basically to involve more people and slow things down. But do we really want to just gum up the works in fighting terrorism, with the hope that a less powerful government will treat us better? Frankly, if we want a less powerful government, we should probably cut all sorts of mandates, privileges, and so on - eliminate state charity, subsidies, federal regulation of intrastate commerce, etc - and leave the NSA and CIA to do their work fighting terrorism, at least for the moment. The long arm of government into our personal lives starts with the pocketbook, health care, taxes, etc and ends with law enforcement, not the other way around.

--BenK

(To reply, click here.)

Imagine that the government is clever enough that it can come up with a filter that has a 99.99% chance of tagging a non-terrorist communication as non-terrorist, and a 99.99% chance of tagging a terrorist-related communication as terrorist. I think we'd all be impressed. Further guess that as many as 1 out of 10,000 (0.01%) of all the communications under surveillance are terrorist-related.

If you do the math, out of 100,000,000 communications, you'll have 10,000 genuine terrorist communications, 9999 of which you'll correctly tag as terrorist (the other one will slip through the cracks). Of the 99,990,000 non-terrorist communications, you'll correctly tag 99,980,001 of them as non-terrorist, leaving 9999 as false positives. So because terrorist communications are rare, even this very good filter will produce a false positive for every true positive.

And if that 1 out of 10,000 calls is in fact an overestimate, the number of false positives will outnumber the true positives. If only 1 out of 100,000 calls were terrorist-related, then the false positives would outnumber the true positives by about 10 to 1.

And that's ignoring the manpower issue of who's going to drill down into those 19,998 communications tagged as terrorist by the filter, half of which will be a frustrating waste of time.

--StatNerd

(To reply, click here.)

David Kriss says that there is widespread agreement that it is okay for the U.S. government to intercept "foreign-to-foreign" communications without any oversight or accountability. Why is it that Americans, even those who are strong advocates for the right to privacy, can dismiss the privacy expectations of non-Americans without a thought?

Not all foreigners are terrorists hiding out in mountain caverns. Canada is your nearest neighbour, largest trading partner, and a strong friend and ally. When your government closed all U.S. airports on September 11, hundreds of aircraft were diverted to Canada. At the time, no-one knew that there were only four planes involved in the attack, and for all we knew we could have been putting ourselves in harm's way. The authorities in Canada agreed to admit these aircraft into our airspace anyway, and hundreds of Canadian families took stranded American travellers into their homes. Our soldiers have been fighting in Afghanistan since shortly after the invasion, and are suffering casualties at a higher rate than any other forces, including your own.

The NSA has the capacity to monitor the communications of our security services, government officials, businesses, and private individuals. The U.S. Congress has given them free reign to do so, and there is "widespread agreement", among Americans anyway, that this is "appropriate". Why?

--ovation

(To reply, click here.)

What you're doing is a legal analysis of how these programs comport with the jurisprudence and legislation of the past (FISA) and also more recent legislation. This analysis occurs in a relative vacuum.'

It's my understanding that during WWII our security agencies took substantial latitude with privacy protections. If so, were these legal then given wartime conditions? Or was there legislation, since rescinded, that legalized these actions? Or would subsequent jurisprudence make these actions questionable?

Rights cannot be absolute but must be the result of a weighing of threat vs the value of privacy. It would seem obvious that in wartime this balance shifts. Obviously this isn't WWII. But its also not the Cold War. In fact its easy to argue, from a homeland security point of view this situation is more dire than either WWII or the Cold War. Our opponents are indelibly organized to try to kill us in large numbers!!!! They already have.

Then we had other means, more appropriate to the circumstances (armies, planes) to protect us. Now surveillance has gone from a useful auxiliary activity to a primary weapon. So the balance of threat vs. privacy rationally must shift against privacy.

To do so requires action, some of it secret, necessarily on the part of the executive. Such considerations seemingly play no part in your analysis, yet they seem to me to be critical. Obviously in such circumstances we end up relying on the discretion of the executive more than we're used to. Yes there is a greater potential for abuse. But there is a check still.

If discretion is abused in a functional sense that hurts innocent people there will be victims with a cause of action. So far the surveillance programs seem to be victimless "crimes". Or maybe the administration is in fact being reasonable with the program.

--Breaker

(To reply, click here.)

(9/2)

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