Secret State Privilege Doctrine
Courts unanimously support deference in the squo – stats – the trend will only continue
Thomas C. Ellington, Associate Professor of Political Science at Weslyan College, 2015, (Secrecy, Law and Society, Routledge, Edited by Greg Martin, Rebecca Bray, and Miiko Kumar: Faculty Members of the Department of Law at the University of Sydney, Chapter 3: Secrecy law and its problems in the United States) - AW
Judicial deference at its most extreme, however, is found in the application of the state secrets privilege, under which the government withholds evidence by claiming that revealing it to a judge or opposing counsel would tend to endanger national security. Accordingly, '[b]ecause successful invocation of the privilege involves no independent judicial review of the evidence, critics worry that it opens the door to abuse by the executive branch’. 41 Louis Fisher provides the deﬁnitive account of the origins of state secrets privilege and some of the problems in its underlying doctrine.’ 42 Two things are worth noting:
1. the state secrets privilege has its origins in a case in which the government has since been shown deﬁnitely to have mischaracterised the nature of the evidence it was withholding; and
2. the US Government has increasingly invoked the state secrets privilege in recent years as a way of shutting down civil litigation in cases involving such subjects as extraordinary rendition and blanket eavesdropping by the NSA. 43
What had once been a moribund piece of judicial doctrine has found new life under the Bush and Obama administrations. Laura K. Donohue counts more than 100 instances in which the Bush administration invoked the state secrets privilege.” Despite setting a new policy that is supposed to limit the circumstances in which the state secrets privilege is invoked, 45 the Obama Justice Department continues to use this ﬂawed doctrine extensively. The Federation of American Scientists maintains an ongoing list of state secrets claims.” 46
Courts, almost unanimously, have east their lot with national security, granting considerable deference to government assertions of the state secrets principle. This deference to state secrets shows no signs of abating; indeed, the growing trend is for counts to dismiss these legal challenges pre-discovery.9
On issues of surveillance, the court currently cedes deference to the executive branch – constitutional authority and practical competence.
Margulies 14 – Peter, Professor of Law, Roger Williams University School of Law. B.A. 1978, Colgate University; J.D. 1981, Columbia Law School, 2014 (“Dynamic Surveillance: Evolving Procedures in Metadata and Foreign Content Collection After Snowden,” Hastings Law Journal (66 Hastings L.J. 1) Available Online to Subscribing Institutions via Lexis-Nexis)
The first opinion to authorize bulk collection was a 2004 opinion by Judge Kollar-Kotelly that granted the government's application under FISA to use a pen register to collect information on the routing or addressing of e-mails, excluding the content of communications. n48 This opinion introduced a concept that would shape collection in the years to come: it coupled authority for the wide collection of information by the government with significant restrictions on the government's use of that information. Judge Kollar-Kotelly assumed that a relevance standard governed both pen registers and FISC orders under section 215. n49 Finding that the statutory language in the FISA pen register provision did not require that the government identify specific targets prior to collection, Judge Kollar-Kotelly acknowledged that the statute allowed "exceptionally broad" acquisition of e-mail records, n50 most of which would be "unrelated" to terrorism. n51 To avoid giving the government the unchecked ability to rummage through these mountains of data, Judge Kollar-Kotelly added restrictions on government analysts' access to the information collected. When structuring queries of the electronic data, Judge Kollar-Kotelly held that analysts could use only those e-mail addresses specifically linked to particular terrorist organizations. n52 No other queries - for example, addresses of celebrities or government critics - were permissible.
Supporting her analysis, Judge Kollar-Kotelly suggested that Congress intended the relevance standard in the pen register provision to broaden information gathering for national security purposes. The relevance standard replaced language that required only a "reasonable suspicion" that the communication facility subject to the pen register be [*13] used by an individual engaged in "international terrorism or clandestine intelligence activities." n53 Collecting e-mail metadata from a range of Internet service providers ("ISPs") would meet the relevance standard, the court found, accepting the government's argument. n54 Broad collection would allow the government to ferret out previously unknown e-mail addresses linked to terrorism, which "more precisely targeted forms of collection against known accounts" would exclude. n55 The court defended its deference to the government's rationale, finding that, "for reasons of both constitutional authority and practical competence, deference should be given to the fully considered judgment of the executive branch in assessing and responding to national security threats and in determining the potential significance of intelligence-related information." n56
Judicial deference is empirically proven. The Supreme Court refused to take a major case involving NSA surveillance; instead, leaving it to the executive branch.
Richey 13 – Warren, staff writer for The Christian Science Monitor, 2013 (“Supreme Court rejects case on NSA spying on Americans' phone calls; The US Supreme Court on Monday refused to consider whether the NSA, in collecting and storing information about the phone calls of virtually every American, overstepped its authority under the law,” The Christian Science Monitor, Available Online at http://www.csmonitor.com/USA/Justice/2013/1118/Supreme-Court-rejects-case-on-NSA-spying-on-Americans-phone-calls-video)
The US Supreme Court on Monday declined to take up a potential major case examining whether the National Security Agency's bulk collection and storage of telephone metadata from virtually every American violate the limits of federal law.
The justices turned aside the case without comment. Had they agreed to take up the issue, the stage would have been set for a high-court showdown testing whether the NSA overstepped its authority under the Foreign Intelligence Surveillance Act (FISA) by collecting and storing telephone service information for every telephone call made and received in the US.
Several other cases pending in federal district courts challenge the massive collection program as an invasion of Americans' privacy.
Aside from the pending court cases, the high court's action on Monday leaves it to the political branches - Congress and the White House - to sort out whether the NSA and other US spy agencies should have the power to make bulk collections of data for later use in intelligence gathering and counter-terrorism.
Multiple court cases prove the judiciary defers to the executive on matters of intelligence gathering.
Robert Turner, Professor specializing in National Security Law at the University of Virginia, Former Charles H. Stockton Chair of International Law at the U.S. Naval War College, Founder and Associate Director of the Center for National Security Law, 10/21/13, (“First Principles: Are Judicial and Legislative Oversight of NSA Constitutional?”, http://www.fed-soc.org/publications/detail/first-principles-are-judicial-and-legislative-oversight-of-nsa-constitutional) - AW
II. Judicial Deference to the Executive
That same month, Chief Justice John Marshall—in perhaps the most famous Supreme Court decision of all times—reaffirmed that the Constitution grants the President important powers over foreign affairs that are checked neither by the Legislature nor the Judiciary:
By the constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience . . . . The subjects are political. They respect the nation, not individual rights, and being intrusted to the executive, the decision of the executive is conclusive.
The application of this remark will be perceived by adverting to the act of congress for establishing the department of foreign affairs. This officer, as his duties were prescribed by that act, is to conform precisely to the will of the president. . . . The acts of such an officer, as an officer, can never be examinable by the courts.10
In the 1936 Curtiss-Wright case, the Supreme Court noted that the President “makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude, and Congress itself is powerless to invade it.”11
In this same landmark case, the Court noted:
The marked difference between foreign affairs and domestic affairs in this respect is recognized by both houses of Congress in the very form of their requisitions for information from the executive departments. In the case of every department except the Department of State, the resolution directs the official to furnish the information. In the case of the State Department, dealing with foreign affairs, the President is requested to furnish the information “if not incompatible with the public interest.” A statement that to furnish the information is not compatible with the public interest rarely, if ever, is questioned.12
Now, in candor, I believe the Court in Curtiss-Wright got the right answer for the wrong reasons. Justice Sutherland focused not upon the expressed grant of “executive power” to the President, but instead on the idea that the foreign policy power was a natural attribute of sovereignty that attached to the presidency at the time of America’s independence from Great Britain. It was not an unreasonable explanation (and Curtiss-Wright remains by far the most often cited Supreme Court foreign affairs case), but it is clear that the Framers believed they had expressly vested this power in the President through Article II, Section 1’s grant of “executive power.”
This longstanding deference to presidential discretion in foreign affairs was recognized by both the courts and Congress into the second half of the twentieth century. In the 1953 case of United States v. Reynolds, the Supreme Court discussed the executive privilege to protect national security secrets, noting that: “Judicial Experience with the privilege which protects military and state secrets has been limited in this country . . . .” But the Court recognized an absolute privilege for military secrets, explaining:
In each case, the showing of necessity [of disclosure] which is made will determine how far the court should probe in satisfying itself that the occasion for invoking the privilege is appropriate. Where there is a strong showing of necessity, the claim of privilege should not be lightly accepted, but even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are at stake.13
Obviously, intelligence programs run by a Department of Defense agency (NSA) designed to intercept communications from our nation’s enemies during a period of authorized war are among the most sensitive of “military secrets.”
Four years later, Professor Edward S. Corwin, one of the nation’s leading constitutional scholars of his era, wrote in his classic volume, The President: Office and Powers:
So far as practice and weight of opinion can settle the meaning of the Constitution, it is today established that the President alone has the power to negotiate treaties with foreign governments; that he is free to ignore any advice tendered him by the Senate as to a negotiation; and that he is final judge of what information he shall entrust to the Senate as to our relations with other governments.14
In the 1959 Barenblatt case, the Supreme Court recognized that there are proper limits not only on the power of Congress to control Executive discretion, but even to “inquire” into matters vested by the people in the President: “Congress . . . cannot inquire into matters which are within the exclusive province of one of the other branches of the Government. Lacking the judicial power given to the Judiciary, it cannot inquire into matters that are exclusively the concern of the Judiciary. Neither can it supplant the Executive in what exclusively belongs to the executive.”15
Actions modifying presidential war power set a precedent. The War Powers Resolution and other historical examples prove.
Paul 08 – Christopher, Senior Social Scientist at RAND, 2008 (“US Presidential War Powers: Legacy Chains in Military Intervention Decisionmaking,” Journal of Peace Research (Vol. 45, No. 5) Available Online to Subscribing Institutions via Jstor, p. 665-679)
There's an obvious kernel of truth to the old saying, 'Generals always fight the last war'. This article explores one of the sources of this kind of policy inertia, 'legacy chains', by examining the sequence of disputes over military deployments that led up to the United States War Powers Resolution of 1973 and its impact on the US military interventions that have followed. The War Powers Resolution was passed by a Congress attempting to re store balance to war-making powers constitutionally divided between the Congress (as the only body legally allowed to make a 'declaration of war') and the president (the commander in chief). This article traces the war powers legacy chain through the US military operations in Korea, Vietnam, the Dominican Republic, Grenada, Panama, Iraq, Haiti, and Iraq again. The exercise of war powers (and the disputes associated with them) for these military operations show how legacies are formed and institutionalized within a policy sphere; how institutionalized legacies affect subsequent policy (in sometimes unintended ways); and how subsequent policies modify, transform, or reinforce these legacies. Based on the War Powers example and other historical data, this article argues that past policy affects subsequent policy by creating institutional legacies that shape the decision space in which subsequent policy is made. These institutional legacies can be modified, transformed, and/or reinforced by subsequent policymaking and then constitute 'legacy chains'.
Finegold & Skocpol (1995: 222) describe policy legacies:
Past and present policies are connected in at least three different ways. First, past policies give rise to analogies that affect how public officials think about contemporary policy issues. Second, past policies suggest lessons that help us to understand the processes by which contemporary policies are formulated and implemented and by which the consequences of contemporary policies will be determined. Third, past policies impose limitations that reduce the range of policy choices available as responses to contemporary problems.
All three of the ways in which they connect past policy to present policy can be viewed as changes in the institutional context in which policy is made. These legacies are institutionalized in two different ways: first, through changes in formal rules or procedures, and second, in the 'taken for granteds', 'schemas', and accepted wisdom of policy makers and ordinary citizens alike (Sewell, 1992: 1-29).
While a policy or event can leave multiple legacies, it often leaves a single major legacy. For example, the War Powers Resolution formally changed the relationship between the president and the congress with regard to war-making and the deployment of troops. Subsequent military interventions were influenced by this change and have, in turn, left their own legacy (legal scholars might call it precedent) as a link in that chain. Legacy chains can be modified, transformed, or reinforced as they step through each 'link' in the chain. As another example, US involvement in Vietnam left a legacy in the sphere of press/military relations which affected the intervention in Grenada in 1983 (the press was completely excluded for the first 48 hours of the operation). The press legacy chain begun in Vietnam also affected the Panama invasion of 1989 (a press pool was activated, in country, but excluded from the action), but the legacy had been transformed slightly by the Grenada invasion (the press pool system itself grew out of complaint regarding press exclusion in Grenada) (Paul & Kim, 2004).
Because of the different ways in which policy legacies are institutionalized, some legacies have unintended institutional consequences. The War Powers Resolution was intended to curtail presidential war-making powers and return some authority to the congress. In practice, the joint resolution failed to force presidents to include congressional participation in their intervention decision making, but it had the unintended consequence of forcing them to change the way they planned interventions to comply with the letter of the law (see the extended ex ample presented later in the article).1
They Say: “Second Circuit Ruling on Section 215 Thumps”
The Second Circuit Ruling on Section 215 was a matter of statutory ambiguity, not about constitutionality. On matter of constitutionality, the Second Circuit acknowledges they don’t have the expertise to make decisions that could impact national security and defers its authority.
Kerr 15 – Orin, Fred C. Stevenson Research Professor of Law, 2015 (“Second Circuit rules, mostly symbolically, that current text of Section 215 doesn’t authorize bulk surveillance,” The Washington Post, May 7th, Available Online at http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/05/07/second-circuit-rules-mostly-symbolically-that-current-text-of-section-215-doesnt-authorize-bulk-surveillance/)
Edward Snowden’s biggest leak was that the Foreign Intelligence Surveillance Court had interpreted Section 215 of the Patriot Act to authorize bulk collection of everyone’s phone records. This was astonishing news, as nothing on the face of the face of the statute suggested it had that anything like that broad a reach. Legal challenges followed, on both statutory and constitutional grounds.
This morning, the Second Circuit finally handed down its opinion on one of the pending legal challenges. It’s the first appellate court ruling on the issue. Today’s decision rules that the text of Section 215 does not authorize the program as a matter of statutory law. The Second Circuit does not reach whether the NSA program violates the Fourth Amendment.
My initial reaction, on a first read, is that the Second Circuit’s decision is mostly symbolic. As regular readers know, I agree with the court’s bottom line statutory analysis that Section 215 doesn’t authorize the NSA program. But while you would normally think that a ruling on such an important question by a court as important as the Second Circuit would be a big deal, I’m not sure the Second Circuit’s opinion actually matters very much.
The main reason is that Section 215 sunsets in three weeks. The Second Circuit ruling does not enjoin the NSA program. It does not rule on the Fourth Amendment question. It mostly interprets statutory language that goes off the books in a few weeks, with the understanding that the court’s ruling won’t be implemented by the district court in that time window. So from a practical perspective, it’s mostly symbolic. With that said, the decision is a rebuke to the Foreign Intelligence Surveillance Court for the FISC’s statutory analysis that approved the bulk telephone metadata program.
Here’s a rundown of the majority opinion, with some additional thoughts of mine at the end.
The opinion begins by concluding that any person whose data is collected as part of the program has Article III standing to challenge the program. Article III standing to challenge the program is not limited to those whose data was queried, but rather to anyone whose data was collected. This is perhaps the most confusing part of the opinion, because the Court somewhat oddly blends together Article III and Fourth Amendment principles to create a sort of Article III standing doctrine for challenges that include Fourth Amendment claims — even though the court then doesn’t rule on the Fourth Amendment claims. Here’s what the court says:
Appellants challenge the telephone metadata program as a whole, alleging injury from the very collection of their telephone metadata. And, as the district court observed, it is not disputed that the government collected telephone metadata associated with the appellants’ telephone calls. The Fourth Amendment protects against unreasonable searches and seizures. Appellants contend that the collection of their metadata exceeds the scope of what is authorized by § 215 and constitutes a Fourth Amendment search. We think such collection is more appropriately challenged, at least from a standing perspective, as a seizure rather than as a search. Whether or not such claims prevail on the merits, appellants surely have standing to allege injury from the collection, and maintenance in a government database, of records relating to them. “[A] violation of the [Fourth] Amendment is fully accomplished at the time of an unreasonable governmental intrusion.” United States v. Verdugo‐Urquidez, 494 U.S. 259, 264 (1990) (internal quotation marks omitted). If the telephone metadata program is unlawful, appellants have suffered a concrete and particularized injury fairly traceable to the challenged program and redressable by a favorable ruling.
Further, there’s Article III standing because there’s a kind of search at issue here, whether or not it is a “search” in the technical Fourth Amendment sense:
Finally, the government admits that, when it queries its database, its computers search all of the material stored in the database in order to identify records that match the search term. In doing so, it necessarily searches appellants’ records electronically, even if such a search does not return appellants’ records for close review by a human agent. There is no question that an equivalent manual review of the records, in search of connections to a suspect person or telephone, would confer standing even on the government’s analysis. That the search is conducted by a machine might lessen the intrusion, but does not deprive appellants of standing to object to the collection and review of their data.
The court next rules that nothing in the text of Section 215 or FISA more generally precludes the usual rule that executive action can be challenged in court under the Administrative Procedure Act:
The government has pointed to no affirmative evidence, whether “clear and convincing” or “fairly discernible,” that suggests that Congress intended to preclude judicial review. Indeed, the government’s argument from secrecy suggests that Congress did not contemplate a situation in which targets of § 215 orders would become aware of those orders on anything resembling the scale that they now have. That revelation, of course, came to pass only because of an unprecedented leak of classified information. That Congress may not have anticipated that individuals like appellants, whose communications were targeted by § 215 orders, would become aware of the orders, and thus be in a position to seek judicial review, is not evidence that Congress affirmatively decided to revoke the right to judicial review otherwise provided by the APA in the event the orders were publicly revealed.
. . . [T]he government relies on bits and shards of inapplicable statutes, inconclusive legislative history, and inferences from silence in an effort to find an implied revocation of the APA’s authorization of challenges to government actions. That is not enough to overcome the strong presumption of the general command of the APA against such implied preclusion. Congress, of course, has the ability to limit the remedies available under the APA; it has only to say so. But it has said no such thing here. We should be cautious in inferring legislative action from legislative inaction, or inferring a Congressional command from Congressional silence. At most, the evidence cited by the government suggests that Congress assumed, in light of the expectation of secrecy, that persons whose information was targeted by a § 215 order would rarely even know of such orders, and therefore that judicial review at the behest of such persons was a non‐ issue. But such an assumption is a far cry from an unexpressed intention to withdraw rights granted in a generally applicable, explicit statute such as the
3. The Statutory Merits
On the statutory merits, the court concludes that Section 215 doesn’t support the program. As drafted and passed by Congress, Section 215 is just a grand jury subpoena authority:
In adopting § 215, Congress intended to give the government, on the approval of the FISC, broad‐ ranging investigative powers analogous to those traditionally used in connection with grand jury investigations into possible criminal behavior.
Bulk metadata collection just doesn’t fit in the traditional powers of a grand jury subpoena authority:
The records demanded are all‐encompassing; the government does not even suggest that all of the records sought, or even necessarily any of them, are relevant to any specific defined inquiry. Rather, the parties ask the Court to decide whether § 215 authorizes the “creation of a historical repository of information that bulk aggregation of the metadata allows,” Appellees’ Br. 32, because bulk collection to create such a repository is “necessary to the application of certain analytic techniques,” Appellants’ Br. 23. That is not the language in which grand jury subpoenas are traditionally discussed.
Thus, the government takes the position that the metadata collected – a vast amount of which does not contain directly “relevant” information, as the government concedes – are nevertheless “relevant” because they may allow the NSA, at some unknown time in the future, utilizing its ability to sift through the trove of irrelevant data it has collected up to that point, to identify information that is relevant. We agree with appellants that such an expansive concept of “relevance” is unprecedented and unwarranted.
The statutes to which the government points have never been interpreted to authorize anything approaching the breadth of the sweeping surveillance at issue here.
. . . .The metadata concerning every telephone call made or received in the United States using the services of the recipient service provider are demanded, for an indefinite period extending into the future. The records demanded are not those of suspects under investigation, or of people or businesses that have contact with such subjects, or of people or businesses that have contact with others who are in contact with the subjects – they extend to every record that exists, and indeed to records that do not yet exist, as they impose a continuing obligation on the recipient of the subpoena to provide such records on an ongoing basis as they are created. The government can point to no grand jury subpoena that is remotely comparable to the real‐time data collection undertaken under this program.
As I put the same point in my recent article, for the text of Section 215 to authorize bulk collection, “any federal prosecutor anywhere in the country could have compelled every phone company to hand over all of its telephony metadata on an ongoing basis so long as the prosecutor claimed that it was necessary to help solve a case. It is hard to imagine a federal judge allowing such a subpoena in a criminal case[.]”
Also, the Second Circuit rejects the argument that Congress knew about the program and impliedly approved it: The program wasn’t widely known in Congress and the public wasn’t aware of it.
And that brings us to the Second Circuit’s bottom line:
We conclude that to allow the government to collect phone records only because they may become relevant to a possible authorized investigation in the future fails even the permissive “relevance” test. Just as “the grand jury’s subpoena power is not unlimited,” United States v. Calandra, 414 U.S. 338, 346 (1974), § 215’s power cannot be interpreted in a way that defies any meaningful limit. Put another way, we agree with appellants that the government’s argument is “irreconcilable with the statute’s plain text.” Appellants’ Br. 26. Such a monumental shift in our approach to combating terrorism requires a clearer signal from Congress than a recycling of oft‐used language long held in similar contexts to mean something far narrower. “Congress . . . does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions — it does not . . . hide elephants in mouseholes.” Whitman v. Am. Trucking Ass’ns., 531 U.S. 457, 468 (2001). The language of § 215 is decidedly too ordinary for what the government would have us believe is such an extraordinary departure from any accepted understanding of the term “relevant to an authorized investigation.”
That’s correct, I think.
4. The Fourth Amendment
Having ruled for the challengers on the statutory claim, the court does not rule on the Fourth Amendment challenge. However, the court decides to “discuss” the Fourth Amendment issue anyway because the finds the issue “potentially vexing.” The court’s discussion is mostly about the role of Congress. Congress should take “the primary role . . . in deciding, explicitly and after full debate, whether such programs are appropriate and necessary.” Further, the court would see express statutory authorization as relevant to constitutionality:
[W]hether Congress has considered and authorized a program such as this one is not irrelevant to its constitutionality. The endorsement of the Legislative Branch of government provides some degree of comfort in the face of concerns about the reasonableness of the government’s assertions of the necessity of the data collection. Congress is better positioned than the courts to understand and balance the intricacies and competing concerns involved in protecting our national security, and to pass judgment on the value of the telephone metadata program as a counterterrorism tool. Moreover, the legislative process has considerable advantages in developing knowledge about the far‐reaching technological advances that render today’s surveillance methods drastically different from what has existed in the past, and in understanding the consequences of a world in which individuals can barely function without involuntarily creating metadata that can reveal a great deal of information about them. A congressional judgment as to what is “reasonable” under current circumstances would carry weight – at least with us, and, we assume, with the Supreme Court as well – in assessing whether the availability of information to telephone companies, banks, internet service providers, and the like, and the ability of the government to collect and process volumes of such data that would previously have overwhelmed its capacity to make use of the information, render obsolete the third‐party records doctrine or, conversely, reduce our expectations of privacy and make more intrusive techniques both expected and necessary to deal with new kinds of threats.
As a result, Congress passes an executive supported bill – the FREEDOM Act.
Peterson and Paletta 15 – Kristina and Damian, both reporters for The Wall Street Journal, 2015 (“Congress Reins In NSA’s Spying Powers,” The Wall Street Journal, June 2nd, Available Online at http://www.wsj.com/articles/senate-passes-house-bill-overhauling-nsa-surveillance-program-1433277227)
WASHINGTON—A long-running congressional battle over privacy and surveillance ended Tuesday when the Senate voted to curb the collection of millions of Americans’ phone records, the first significant retrenchment of government spying powers since the 9/11 attacks.
The measure, which was signed Tuesday night by President Barack Obama, will reauthorize and reboot the provisions of the USA Patriot Act that lapsed Sunday at midnight, but it will phase out the National Security Agency’s bulk phone-records program.
The bill, passed by the Senate Tuesday in a 67-32 vote, will shift storage of the phone records to telecommunications companies over six months.
Supporters said the legislation marked a victory for civil liberties diminished by laws put in place in the wake of the September 2001 terror attacks.
“Today the American people are now safe from the federal government’s collection of their personal data,” said Sen. Mike Lee of Utah, the bill’s chief GOP proponent in the Senate.
The House approved the bill, known as the USA Freedom Act, in May.
The bill will require the NSA and Federal Bureau of Investigation to obtain phone records for most counterterror investigations and other probes on a case-by-case basis from telecommunications companies. This would end the nine-year-old practice underpinned by Section 215 of the Patriot Act, which allowed the NSA to hold the telephone records of millions of Americans, regardless of any person’s background or behavior. The bulk data collection didn’t include the content of the calls themselves.
The Central Intelligence Agency, the Justice Department and the White House all supported the curbs, a reflection of government officials’ shifting stance on surveillance since former NSA contractor Edward Snowden’s 2013 leaks about secretive data collection.
They Say: “Deference to FISA is More Likely”
The executive has jurisdiction and authority over domestic electronic intelligence gathering; data is crucial to national security issues. Furthermore, judicial deference would go to the executive, not the FISA courts. This framework for executive authority is most reasonable, complying with the Fourth Amendment.
Yoo 14 – John, Emanuel Heller Professor of Law at the University of California, Berkley, Visiting Scholar at the American Enterprise Institute, J.D. from Yale University, 2014 (“The Legality of the National Security Agency’s Bulk Data Surveillance Programs,” Harv. JL & Pub. Pol'y 37 (2014): 901, Available Online to Subscribing Institutions via HeinOnline)
The need for executive authority over electronic intelligence gathering becomes apparent when we consider the facts of the war against al Qaeda. In the hours and days after 9/11, members of the government thought that al Qaeda would try to crash other airliners or use a weapon of mass destruction in a major East Coast city, probably Washington, D.C. Combat air patrols began flying above New York and Washington. Suppose a plane was hijacked and would not respond to air traffic controllers. In order to protect the nation from attack, it would be reasonable for U.S. anti-terrorism personnel to intercept any radio or cell phone calls to or from the airliner, in order to discover the hijackers’ intentions, what was happening on the plane, and ultimately whether it would be necessary for the fighters to shoot down the plane. Or suppose the government had to put up a net to intercept all cellular phone calls in a city because it was searching for a terrorist cell which had yet to launch an attack. Under such circumstances, FISA should not control whether the President has the executive authority to monitor any radio or cell phone calls to or from the airliner; after all, the purpose is not to arrest and gather evidence for trial, but to prevent the nation from attack. Indeed, because the United States is in a state of war, the military can intercept the communications of the plane to see if it poses a threat, and target the enemy if necessary. This authority is not only within the President’s executive powers, but it also comports with the principle of reasonableness that guides the Fourth Amendment.