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A Brewing Battle Over Warrantless Wiretapping

Jameel Jaffer,
Director, Knight First Amendment Institute
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February 15, 2012

One of the hardest-fought civil liberties battles of the George W. Bush era involved the Foreign Intelligence Surveillance Act (FISA), the post-Watergate statute that was meant to rein in domestic surveillance undertaken in the name of national security. It's almost certain that we'll have an equally hard-fought battle over FISA this year, both in the courts and in Congress.

The first volley may come as early as next week, because the administration must decide by Tuesday whether to ask the Supreme Court to intervene in the ACLU's constitutional challenge to the FISA Amendments Act, the 2008 law that ratified and expanded the Bush administration's warrantless wiretapping program. And that law is scheduled to sunset in December, which means that the litigation will unfold against the background of a congressional reauthorization debate.

To understand the significance of this brewing battle, you need to know (or recall) a little history.

Right after 9/11, President Bush instructed the National Security Agency (NSA) to intercept Americans' telephone calls without first obtaining warrants. The program was developed in secret but exposed by The New York Times in 2005 and immediately challenged by civil liberties groups, including the ACLU. In response to public pressure, and in an effort to derail the legal challenges, the Bush administration announced in January 2006 that it would allow the program to be supervised by the judiciary — specifically, by the Foreign Intelligence Surveillance Court, the entity established by FISA to oversee domestic intelligence surveillance. Though there were unanswered questions — for example, what, precisely, did the administration submit to the FISA Court, and what did the FISA Court approve? — it seemed, briefly, like a victory for civil liberties.

But the FISA Court reconsidered its endorsement of the warrantless wiretapping program only a few months later, and the administration and its allies in Congress began to press for legislative change. It was a misleading campaign. If there was a problem with FISA as written, the problem was narrow and could have been addressed with a minor legislative fix that no one would have opposed. The administration, though, was not interested in fixing the narrow problem it had identified; it was interested in allowing the NSA to turn its powerful technology inward, towards the United States. This is what it asked Congress to permit.

And this, ultimately, is what Congress allowed. Congress weakened FISA in 2007 and then again in 2008 to permit the warrantless wiretapping that the law had previously prohibited. It granted retroactive immunity to the companies that had facilitated the warrantless wiretapping program. And it gave the NSA unprecedented power to monitor the international communications of people living in the United States — to listen to their phone calls, and to read their emails. "We are targeting our own country," one NSA whistleblower observed. Marty Lederman, then a law professor but later a lawyer for the Obama administration, explained the 2008 amendments like this:

The new statute permits the NSA to intercept phone calls and e-mails between the U.S. and a foreign location, without making any showing to a court and without judicial oversight, whether or not the communication has anything to do with al Qaeda — indeed, even if there is no evidence that the communication has anything to do with terrorism, or any threat to national security.

Predictably, the NSA has not simply used the law aggressively but abused it as well.

Congress's 2008 amendments to FISA are scheduled to sunset in December, and over the next 10 months the ACLU and its partners will be urging Congress to fix FISA's problematic provisions and rein in the NSA.

We'll also be pressing the constitutional challenge we filed less than an hour after the 2008 amendments became law. In that case we represent a coalition of labor, media, and human rights organizations whose work depends on their ability to communicate confidentially with clients, witnesses, sources, and victims of human rights abuses. (Profiles of our clients are here.) The government has tried to keep the case out of court; it's argued that our clients lack standing to challenge the 2008 Act because they can't prove that their communications were (or will be) monitored under it. Some courts have accepted that cynical argument, but early last year a three-judge panel of the U.S. Court of Appeals for the Second Circuit rejected it, and late last year the full Second Circuit declined the government's request to reconsider that ruling. The Obama administration must decide by Tuesday whether to ask the Supreme Court to intervene.

As we've said before, our hope is that the Obama administration will drop its objection to our plaintiffs' standing and allow the constitutionality of the FISA amendments to be tested in court. For a full decade, the executive branch — first the Bush administration and now the Obama administration — has used the standing and "state secrets" doctrines to insulate its most intrusive surveillance activities from public oversight and judicial review. But the Constitution doesn't contemplate that core democratic rights — the right to privacy, the freedoms of association and expression — will be left to the mercy of the political branches. The courts have a role to play in ensuring that government surveillance complies with the Constitution. We'll find out on Tuesday whether the Obama administration is finally willing to let the courts play that role.

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