I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Tuesday, January 24, 2006

The "Bad Law" defense

Something extraordinary happened yesterday: the Administration, via the appearance by former NSA Director Gen. Michael Hayden at the National Press Club, finally offered a coherent answer to the question of why the Administration bypassed FISA in order to eavesdrop on Americans. By "coherent," I don’t mean "persuasive and satisfactory." I mean only that the explanation was at least responsive to the question and capable of being understood. Since all we had been given up until this point is gibberish about how we need to be "fast and agile" in this "different war," yesterday's explanation constituted significant progress.

Contrary to the excuse offered up by Bush followers that this illegal eavesdropping was all necessitated by some sort of super-complex data mining method which rendered FISA an obsolete relic, Gen. Hayden made clear that this is not the case. Bush's eavesdropping program entailed garden-variety eavesdropping on telephone conversations - not some new technologically advanced data mining program. As Kevin Drum put it:

General Michael Hayden, the deputy director of national intelligence, defended the NSA's domestic spying program today:

Hayden stressed that the program "is not a drift net over Dearborn or Lackawanna or Freemont, grabbing conversations that we then sort out by these alleged keyword searches or data-mining tools or other devices that so-called experts keep talking about. This is targeted and focused."

Unless I've missed something along the way, this is important news. Hayden is saying that the NSA program isn't some kind of large-scale data mining operation that the authors of the FISA act never could have foreseen. Rather, it's "targeted and focused" and involves "only international calls and only those we have a reasonable basis to believe involve al Qaeda or one of its affiliates."

In other words, it's precisely the kind of monitoring that the FISA court already approves routinely and in large volumes. Another few hundred requests wouldn't faze them in the least.

Kevin is exactly right – both about what Hayden said and about the under-noticed significance of it. Hayden made clear several times that the decision to bypass FISA had nothing to do with any sort of data-mining operation:

You know, I tried to make this as clear as I could in prepared remarks. I said this isn't a drift net, all right? I said we're not there sucking up coms and then using some of these magically alleged keyword searches -- "Did he say 'jihad'? Let's get --" I mean, that is not . . . This is targeted, this is focused. This is about al Qaeda.

According to Hayden, the reason the President wanted to bypass FISA was because FISA requires a showing of "probable cause" in order to obtain a FISA warrant for eavesdropping on telephone conversations, and the President believed that standard was too burdensome. They therefore lowered the standard from "probable cause" to "reasonable basis to believe," and also eliminated the legal requirement that a federal judge approve of the eavesdropping (and replaced it with the requirement that a NSA "shift supervisor" approve) – which is all a way of saying that they "changed" (i.e., violated) the law knowingly, unilaterally, and in secret. Gen. Hayden:

The president's authorization allows us to track this kind of call more comprehensively and more efficiently. The trigger is quicker and a bit softer than it is for a FISA warrant, but the intrusion into privacy is also limited: only international calls and only those we have a reasonable basis to believe involve al Qaeda or one of its affiliates. . . .

QUESTION: Just to clarify sort of what's been said, from what I've heard you say today and an earlier press conference, the change from going around the FISA law was to -- one of them was to lower the standard from what they call for, which is basically probable cause to a reasonable basis; and then to take it away from a federal court judge, the FISA court judge, and hand it over to a shift supervisor at NSA. Is that what we're talking about here -- just for clarification?

GEN. HAYDEN: You got most of it right. The people who make the judgment, and the one you just referred to, there are only a handful of people at NSA who can make that decision.

When Hayden says that the President’s Executive Order allows eavesdropping using a standard that "is a bit softer than it is for a FISA warrant," what he’s saying, of course, is that the President ordered eavesdropping which FISA prohibits. FISA makes it a criminal offense to eavesdrop without a warrant from a FISA court, and Bush ordered eavesdropping without those warrants. Thus, Hayden claims that when NSA now wants to eavesdrop, it does not need to comply with FISA, but instead, has "two paths" to choose from:

If FISA worked just as well, why wouldn't I use FISA? To save typing? No. There is an operational impact here, and I have two paths in front of me, both of them lawful, one FISA, one the presidential -- the president's authorization. And we go down this path because our operational judgment is it is much more effective. So we do it for that reason.

To appreciate just how illegal this non-FISA "second path" for eavesdropping is, one can just read Section 1809 of FISA, which expressly provides that "[a] person is guilty of an offense if he intentionally - (1) engages in electronic surveillance under color of law except as authorized by statute. . . ." And Section 2511(2)(f) provides that FISA "shall be the exclusive means by which electronic surveillance . . . may be conducted."

Put simply, FISA – i.e., the law – says that there is no such thing as a "second path" for eavesdropping (other than additional statutory authorization). Anyone who eavesdrops in accordance with a "second path" -- which is exactly what Gen. Hayden said the Administration was doing and continues to do -- is, by definition, breaking the law and committing a crime.

Gen. Hayden’s explanation is that the NSA eavesdrops in accordance with the "second path" because FISA is too restrictive and "does not give us the operational effect that the authorities that the president has given us give us." In essence, what we have from the Administration, then, is the "Bad Law" defense to criminality: "I did break the law, but the reason I broke the law was because it wasn’t a very good law to begin with."

There are several additional points to note about Gen. Hayden’s defense:

(1) As always, the first -- and, for this scandal, the dipositive -- principle is that the solution to a bad law is to change the law, not to break the law in secret and then claim once you’re caught that the law you broke was a bad law. If the President has the power to comply only with those laws he likes but to violate the laws he dislikes – and that, at bottom, is the Administration’s position – then we have a President who, by definition, does not believe in the rule of law and refuses to comport himself to it.

(2) This entire explanation rests on the claim that the FISA standards were too onerous to meet in order to convince a FISA court to allow them to engage in eavesdropping which they believed was necessary. But if that’s really true, one would expect there to be all sorts of examples where the Administration wanted to obtain FISA warrants but was unable to meet the "probable cause" standard and therefore the proposed eavesdropping was rejected by a FISA judge.

But by all accounts, that never happened. When the President ordered this "second path" for eavesdropping, a more rubber-stamping court than the FISA court would be hard to imagine. They simply didn’t turn down Administration requests to eavesdrop. And in the aftermath of 9/11, is there really any doubt that the court would have even more permissively approved eavesdropping requests, especially if, as Gen. Hayden claimed, the Administration is only eavesdropping on "specifically target communications we have reason to believe are associated with al Qaeda."

The claim that the evidentiary requirements for obtaining FISA warrants were too stringent is simply negated by the empirical evidence that they were able to get whatever warrants they wanted.

(3) One issue which has not been explained by the Administration ever, including by Gen. Hayden yesterday, is the obvious question of why they did not seek to have the FISA standards amended if they were too onerous. As Kevin Drum notes, it is virtually certain that a Senate which passed the Patriot Act with only a single Senator voting against it – and which actually did change part of the FISA procedure when enacting the Patriot Act – would have given the Administration whatever changes it wanted to the FISA standards.

It seems that what really attracted the Administration when bypassing FISA was not some desire to lower the evidentiary standard for obtaining warrants (since it was obtaining all the warrants it wanted and since it could certainly have persuaded Congress to amend the standard), but rather, the ability to eavesdrop without having to tell any Federal Judge on whom they were eavesdropping. That’s the disturbing part of the illegality, much more than the "probable cause" v. "reasonable likely to believe" issue.

A reasonable debate can be had by all as to whether the standard for obtaining a warrant ought to be "probable cause" or "reasonable basis to believe." I’m not sure it really makes much of a difference, since they are both quite subjective and I really can’t imagine a FISA judge, operating in secret, especially after 9/11, being unwilling to sign a warrant because there is only a "reasonable basis," rather than "probable cause," to believe that the targeted communications involve an al Qaeda member.

Matt Yglesias is absolutely correct that the standard described by Gen. Hayden is incredibly vague, and may be far looser than the country would like. But that debate is at least reasonable.

But what is not reasonable, and what most Americans would likely not want (hence the enactment of FISA), is for the Administration to be able to eavesdrop on Americans with no oversight whatsoever. Rather than the evidentiary standard for warrants, the most important part of FISA is that it allows eavesdropping on Americans only with judicial oversight in order to avoid abuse. That’s what the Administration did away with - unilaterally and in secret – and it is that (rather than the change in the evidentiary standard) which they likely would have been unable to have Congress agree to. So they went ahead and did it anyway.

We had a legislative regime in place which is incredibly permissive in allowing eavesdropping. We have a FISA court that could not have been more deferential in granting warrants. The only practical reason to bypass that process – even with a lowered evidentiary standard - is a desire to eavesdrop without having to disclose to a FISA judge whose communications are being intercepted and why.

(4) The crux of Gen. Hayden’s defense, as well as President Bush’s yesterday, is that the FISA-violating eavesdropping is not problematic because we can trust the Government to do the right thing:

I'm disappointed I guess that perhaps the default response for some is to assume the worst. I'm trying to communicate to you that the people who are doing this, okay, go shopping in Glen Burnie and their kids play soccer in Laurel, and they know the law. They know American privacy better than the average American, and they're dedicated to it. So I guess the message I'd ask you to take back to your communities is the same one I take back to mine. This is focused. It's targeted. It's very carefully done. You shouldn't worry.

And President Bush, in defending his eavesdropping program yesterday, repeatedly – and I do mean repeatedly – assured us that we need not worry ourselves about it because it was all being done to "protect" us:

I resolved on that day to do everything I can to protect the American people. . . .

My most important job is to protect the security of the American people. . . .

And so part of my decision-making process, part of it as you see when I begin to protect you, to do my number one priority, rests upon this fact . . .

If they're making phone calls into the United States, we need to know why -- to protect you.

But we don’t have a Government where the President can break the law in secret and then tell us not to worry about it because they are good people who are doing it for our own good, to "protect" us. We’ve never had a system of government operate on such paternalistic and blindly loyal sentiments, with our leaders holding themselves out as the Good, Strong National Fathers who must be trusted to do what's best for us, even if it is in violation of the law. The reason FISA exists is precisely because Americans, through their elected representatives, made a collective judgment that they do not trust the Federal Government to eavesdrop on Americans without judicial oversight.

The time to make all of these arguments – that we can trust the Administration to eavesdrop in secret, that the standards of FISA are too stringent, etc. -- was before the Administration broke the law, not now once they got caught breaking it. No judge would even listen to a criminal defendant try to explain that he broke the law because the law was too stringent or was ill-advised, and we should be no more willing to listen to that excuse for law-breaking just because it’s coming from George Bush. That’s what it means to say that we live under the rule of law and that nobody is above it.


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