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“Smoking Gun” Needed: Even after Clapper Provided a Path to Challenge the Law, the FISA Amendments Act May Still Be Bulletproof

Commentary Notes First Amendment
[caption id="attachment_4418" align="alignleft" width="150"] Photo By: Frédéric BISSON - CC BY 2.0[/caption] Written by: Christopher A. Crawford  Edited by: Loly Sosa


Since 9/11, Congress has expanded the Foreign Intelligence Surveillance Act of 1978 (“FISA”) several times in order to meet the needs of agencies tasked with defending the U.S. against terrorist attacks. Notable expansions include the PATRIOT Act of 2001, but much of the recent controversy surrounds the FISA Amendments Act of 2008 (“FAA”). In 2008, Congress passed the FAA to expand the legal foundation for more systematic surveillance, “establish[ing] a new and independent source of intelligence collection authority, beyond that granted in traditional FISA.” Title VII, § 702 of the FAA is cited by the government as permitting so-called “warrantless wiretaps” on foreign citizens for intelligence-gathering purposes. According to the American Civil Liberties Union (“ACLU”), however, this law allows the National Security Agency (“NSA”) “access to [American citizens’] international communications without warrants, without any suspicion of wrongdoing, and without ever identifying the targets of its surveillance to a court.” However, the ACLU’s challenge to the FAA last year in Clapper v. Amnesty International failed because plaintiffs, who were American citizens, had no standing; in other words, they could not prove that they had been injured by the law. Plaintiffs had alleged that the FAA’s § 702 surveillance powers were too broad and too vulnerable to abuse against people like themselves who might communicate with a targeted foreign citizen. Justice Alito, writing for the majority, found that the plaintiffs were being overly paranoid and that there was no evidence of the law’s misuse—in other words, plaintiffs needed a “smoking gun” that their privacy had been violated before they could gain standing. During oral arguments, plaintiffs suggested that the government could protect § 702 from a constitutional challenge simply by concealing its use. Under pressure from Justice Sotomayor, Solicitor General Donald B. Verrilli promised that there was at least one way to challenge § 702: evidence gathered using § 702 had to be disclosed to a criminal defendant during trial, thus providing that at least those defendants could challenge the law. Following his statement, the U.S. Department of Justice (“DOJ”) has indeed begun notifying defendants in terrorism trials when § 702 evidence is used against them, making future Supreme Court review probable. Nevertheless, a review of § 702’s use against terror defendants will likely fall in favor of the government. Using § 702 to protect Americans from terrorist attacks is exactly what the law was created for, and a special “national security exception” may allow surveillance that would otherwise be unconstitutional. Thus, until civil libertarians like the ACLU acquire the “smoking gun” that they lacked in Clapper, they may be no better off than they were before the government started notifying defendants.


Under the original FISA, the Attorney General of the U.S. and the Director of National Intelligence could jointly authorize the surveillance of individuals who were not “United States persons” and who were reasonably believed to be outside of the U.S. However, this surveillance is subject to review by the special Foreign Intelligence Surveillance Court (“FISC”). The FISC must determine if there is probable cause to believe that “the target of the electronic surveillance is a foreign power or an agent of a foreign power” and the “facilities or places at which the electronic surveillance is directed or being used, or is about to be used, by a foreign power or an agent of a foreign power.” After 9/11, the Bush Administration interpreted this language to mean that the government could conduct warrantless wiretaps of any electronic communications where one party “was reasonably believed to be a member of al Qaeda or an affiliated terrorist organization.” Title VII, § 702 of the FAA does away with the probable cause requirements of the original FISA. The government does not need to demonstrate probable cause that the target of the surveillance is “a foreign power or agent of a foreign power.” The government is also no longer required to specify the nature and location of the facilities it is targeting.  The Supreme Court in Clapper noted, however, that § 702 surveillance is limited by “statutory conditions, judicial review, congressional supervision, and compliance with the Fourth Amendment.” The most important of these limitations is that targets be “non-U.S. Persons.” Protections for targeted persons who become criminal defendants rests on § 702’s advance notice requirement. According to Justice Alito, “if the government were to prosecute . . . using [§ 702, it] would be required to make a disclosure.” Such a disclosure is crucial to a defendant’s rights under Brady v. Maryland and the 4th Amendment. However, non-U.S. Persons do not receive the same level of protection when they are criminal defendants in the U.S. For non-targeted persons, provisions that protect their constitutional rights are called “minimization procedures,” and these must “adequately restrict the acquisition, retention, and dissemination of nonpublic information about unconsenting U.S. persons.” In practice, this means that communications involving both targeted and untargeted individuals must be redacted so as to exclude the untargeted communications. It is the secretive FISA Court’s[1] role to assess whether the targeting procedures are “reasonably designed” to capture only the targeted communications and to periodically review the above-noted minimization procedures.


The Clapper opinion made it clear that the government is obligated to disclose the use of § 702-derived evidence if the law is wielded against a criminal defendant, whether they are U.S. citizen or not. In the months that have passed since Clapper was decided, the government has notified three defendants that § 702 was used against them. All are on trial for their alleged participation in terrorist plots. Jamshid Muhtorov is the first defendant against whom the government actually disclosed the use of § 702-gathered evidence. He is accused of providing material support to an Uzbek organization affiliated with terrorists in Afghanistan, and is on trial in federal court in Colorado. The second defendant, Mohamed Osman Mohamud, attempted to detonate a bomb at a Christmas tree ceremony in Oregon. The government has informed him that § 702-gathered evidence was used to build his case. Finally, defendant Agron Hasbajrami, who was sending money to a terrorist group in Pakistan that he later planned to join, has also been apprised that § 702 evidence was employed against him. The use of § 702 against alleged terrorists comports with the law’s stated purpose. Senator Diane Feinstein, chairwoman of the Senate Committee on Intelligence, vouched for the FAA’s efficacy in frustrating terrorists when the law was up for renewal in 2012. Senator Feinstein noted nine instances in which the FAA had been used to foil a terrorist attack, including against the above-mentioned defendants, and stated that the list of such instances “goes on and on and on.” The FAA was renewed in 2012.


Despite the law’s stated purpose and the fact that all of the above-mentioned defendants are alleged terrorists, a steady stream of released documents suggest that it is at least possible that § 702 surveillance is being used against a broader class of people. Extrapolating from those documents, opponents of the law contend that § 702’s legal limitations are overstated and that the government has overlooked the importance of civil liberties from the start. Civil libertarians focus on two groups that may be most immediately injured by § 702, the first being defendants in criminal cases that may have nothing to do with terrorism, and the second being U.S. persons that have been in communication with targeted persons. a)     Possible use of § 702 against non-terrorist criminal defendants Solicitor General Donald B. Verrilli’s statements to the Supreme Court in Clapper that federal prosecutors would notify defendants if § 702 evidence were apparently untrue at the time he made them. Senator Diane Feinstein had stated that § 702 successfully foiled more than ten separate terrorist plots when she urged her colleagues to renew the FAA in 2012. Defense attorneys for at least two alleged terrorists that Sen. Feinstein named were quick to point out that the government had not, in fact, told them that § 702 was used against their clients. Even after General Verrilli successfully argued to the DOJ that the agency should begin notifying defendants of § 702 evidence use, prosecutors in some of those cases refused to acknowledge the use of § 702. A possible reason as to why prosecutors in those cases did not feel compelled to disclose § 702 use is the use of a process known as “parallel construction”. Using this procedure, an agency that acquires evidence against a defendant that is inadmissible in court can nonetheless use it to build a legal case against a defendant. In simple terms, the warrantlessly-gathered evidence is used to direct an investigation that does have a warrant. For instance, if the Drug Enforcement Agency (“DEA”) gains information from the NSA’s Special Operations Division (“SOD”) that cannot be used in court so as to “protect the program,” then it becomes a matter of finding a legally permissible pretense to achieve the same result. In fact, documents obtained using the Freedom of Information Act that suggested the DEA was capable of requesting evidence gathered by the NSA via the SOD. The SOD was created in the 1990s to help the government combat transnational drug cartels, and the NSA is one of the SOD’s member agencies. If the DEA (or any other member agency, including the Internal Revenue Service) could convince the NSA that their case has a foreign intelligence requirement, then the NSA would be able to pass over information. Agencies that used evidence gained via SOD were instructed not to disclose the source of their evidence in court filings. As a result, it seems possible that the DOJ could use § 702 to gather evidence against a defendant and then use “parallel construction” to avoid having to disclose the use of that evidence in court. Indeed, defense attorneys for Adel Daoud and the Qazi Brothers argued that this was exactly what was happening. These practices seem to suggest that information gathered by the NSA is not limited to use against accused terrorists. If the DEA can request information from the NSA through the SOD, it is conceivable that some of the passed-off information was originally derived from § 702 surveillance. Although some defense attorneys in drug-related cases have speculated that the NSA played a role in building a case against their clients, the government has not notified any such defendant pursuant to § 702 requirements. b)     Possible use of § 702 against individuals in communication with surveillance targets The plaintiffs in Clapper, of course, were not criminal defendants. They were lawyers, journalists, and rights activists who wanted to challenge § 702 on their own terms—namely, that the law permitted the government to monitor their communications illegally. Plaintiffs argued that, since they were in regular contact with individuals who were almost certainly the targets of § 702 surveillance, it was “objectively reasonable” that their communications were being monitored as well. While the plaintiffs in Clapper were lawyers who could not prove that the NSA was compromising their privileged communications, the attorneys of Chicago-based law firm Mayer Brown seem to have a strong case against the NSA’s Australian counterpart, the Australian Signals Directorate.[2] The documents leaked by Edward J. Snowden show that Mayer Brown’s communications with their client, the Indonesian government—which are protected by the attorney-client privilege—had been monitored and recorded by the Australian Signals Directorate (“ASD”) and then turned over to the NSA. The NSA in turn passed the information along to “interested . . . U.S. customers.” These documents suggest that the NSA may be willing to pass information off to other agencies, even if that information includes the privileged communications of U.S. attorneys. In response to a request from the American Bar Association that the NSA clarify its commitment to respecting the attorney-client privilege, General Keith Alexander of the NSA stated that such communications would “be segregated” according to the agency’s minimization procedures.


As damning as these documents may seem at first glance, in reality they only suggest that § 702 is being used against non-terrorist criminal defendants or U.S. persons in contact with targeted individuals. Justice Alito in Clapper wrote that plaintiffs would need to prove that their injuries were “certainly imminent” before being able to challenge § 702. As the dissent points out, this is much higher evidentiary burden relative than has historically been asked of plaintiffs attempting to gain standing.  In other words, non-terrorist plaintiffs need a court-admissible “smoking gun” if they hope to mount their own challenge to § 702. Without this smoking gun, any Supreme Court review of § 702 will be in the context of the law’s use against terrorists—a context in which the Supreme Court is likely to affirm the law’s constitutionality. Consider the case of Jamshid Muhtorov. The ACLU has joined Mr. Muhtorov, and on January 30th, 2014, they moved to suppress all evidence gathered using § 702 surveillance powers. They argue that § 702 is facially unconstitutional, focusing on Fourth Amendment violations. When (or if) the Supreme Court decides to grant cert, the ACLU’s challenge will run up against what has been described as “the foreign intelligence exception” to Fourth Amendment rights. The essence of this long-standing exception is that civil liberties can be suspended in the context of national security. If an otherwise-unconstitutional surveillance law is used for solely “foreign intelligence” purposes, as opposed to (for instance) domestic crime-fighting purposes, the law can still be upheld as constitutional. Thus, it may be difficult for the ACLU to prevail against § 702 in the absence of any “smoking gun” that demonstrates the law is being used outside of the “foreign intelligence” context. To illustrate, consider two hypothetical challenges against § 702 that would each be in a much stronger position than the ACLU’s challenge in Mr. Muhtorov’s suit. a)     A challenge to § 702 brought by a non-terrorist criminal defendant The first hypothetical would require some proof that § 702-gathered evidence was used by prosecutors in a non-terror-related case. Such proof could be, for example, court-admissible documents that demonstrated that the DEA acquired § 702 information from the NSA via the SOD for use against alleged drug traffickers. Alternatively, the prosecution could simply disclose the use of § 702 evidence against a drug-trafficking defendant in the same way that it has disclosed its use against Mr. Muhtorov. Such a defendant would be a strong position when they move to suppress the § 702 evidence. Not only would this defendant be able to mount the arguments raised by the ACLU on Mr. Muhtorov’s behalf, but they would also be able to point out that the political and legal moorings of the FAA lie with combating terrorism, not drug trafficking. Given the counter-terrorism tenor of Senator Feinstein’s arguments during the FAA’s renewal in 2012, this is an important distinction with respect to congressional intent.[3] Furthermore, the Supreme Court is unlikely to find that targeted surveillance of such a defendant serves a “foreign intelligence purpose,” as required by the FAA itself.[4] b)     A challenge to § 702 brought by a U.S. person whose privileged communications have been compromised This second hypothetical plaintiff has exactly the sort of standing that plaintiffs lacked in Clapper, but it appears that this plaintiff will remain a hypothetical for the time being. As if to emphasize the heavy evidentiary burden that such plaintiffs must bear, the Supreme Court recently denied certiorari for attorneys who were very similarly situated to the plaintiffs in Clapper. To date, there is still no clear link that suggests the government’s minimization procedures are failing to protect privileged communications. Regarding the Mayer Brown incident, it is unclear whether the information received by the NSA from the Australian Signals Directorate was properly redacted and minimized before being passed on. Still, if a plaintiff could show that their privileged communications were violated and therefore gain standing against § 702, their motion may also be more likely to succeed than Mr. Muhtorov’s. To begin with, the attorney-client privilege is protected by the Sixth Amendment and is a cornerstone of American due process law. Moreover, since the Supreme Court would find it highly implausible that a U.S. attorney was “reasonably believed” to be a non-U.S. person located outside of the United States, the attorneys’ communications could only be gathered incidentally. The inadvertently gathered communications would need to be minimized completely.


            It is perfectly conceivable that neither of these hypothetical plaintiffs will be able to acquire standing against § 702. This may be because the proof they need for standing will never be disclosed or leaked. Alternatively, these plaintiffs may not exist—it is perhaps not too naive to think that the government would remain well within the boundaries of § 702 to avoid an adverse court ruling, thus protecting its program and mission. Still, as Justice Breyer noted in his Clapper dissent, “commonsense inference and ordinary knowledge of human nature” suggest that tools as powerful and secretive as § 702 are vulnerable to abuse by even the best-intentioned of governments. The course of events between now and a Supreme Court review of § 702 may be dispositive of that review’s outcome.

[1] The FISA Courts were specially created by the FISA Act to oversee the application of that law; their purpose is to prevent the unconstitutional abuse of surveillance powers but at the same time keep sensitive information secret. More information can be found here and here.
[2] This case may present many international law issues that are beyond the scope of this note; however, it still raises important §702 questions that need to be resolved.
[3] This analysis reflects the author’s own assessment of the intent of the FAA. Discussion surrounding the passage of the act in the Senate and the House can be found here and here, respectively.
[4] This analysis reflects the author’s own assessment of the text of the FAA. The text of the act can be found here, and it states at Sec. 704(a)(2) that the government cannot “intentionally target, for the purpose of acquiring foreign intelligence information, a United States person reasonably believed to be located outside the United States under circumstances in which the targeted United States person has a reasonable expectation of privacy and a warrant would be required if the acquisition were conducted inside the United States for law enforcement purposes . . .”