Terrorist Surveillance Program (TSP)
From Cyberlaw
Terrorist Surveillance Program is a warrantless wiretapping scheme established by the National Security Agency (NSA) shortly after September 11, 2001. It targets international (where at least one party is outside the United States) communications (telephone and internet), when it is believed that at least one party involved in the communication have ties to al-Qaeda, regardless its nationality. The program has been publicized following an article in the New York Times, published on December 16, 2005 ("Bush Lets U.S. Spy on Callers Without Courts" NYT's Risen & Lichtblau's, retrieved on 3 April 2007 after Wikipedia via commondreams.org). According to the Bush administration, the program was authorized by the President’s secret order in 2002 and reauthorized periodically thereafter.
TSP has faced two separate legal challenges, both significantly based on privacy concerns. The first one--lawsuit ACLU v. NSA--was filed in January 2006 in the United States District Court for the Eastern District of Michigan. It relates to eavesdropping on the content of electronic communications. The other one, Hepting v. AT&T Corp., involves other, ancillary, calling records, e.g. numbers dialed.
Both cases highlight similar threats to privacy, though the nature of surveillance in ACLU v. NSA makes the nature of the encroachment on the American legal system more blatant.
ACLU v. NSA
On August 17, 2006, U.S. District Judge Anna Diggs Taylor delivered a Memorandum Opinion finding the program illegal and ordering that it be halted immediately (though on October 4, 2006, a panel of the 6th U.S. Circuit Court of Appeals issued unanimously an order stating that the government can continue the program while the lower court decision being under appeal). Five months after the trial court decision Attorney General Alberto Gonzales sent a letter informing U.S. Senate leaders that the program would not be reauthorized by the president.
Arguments against the program are grave. Here only the ones relating to privacy will be discussed.
The stance of wiretaps undertaken within TSP is controversial either on constitutional and on statutory grounds.
Constitutional controversies: the program does not fulfil constitutional requirements stated by the Supreme Court in the 1967 decision of Katz v. United States, 389 U.S. 347 (1967), where the Court asserted that searches conducted without a prior approval of a judge or magistrate are contrary to the Fourth Amendment. Subsequently the requirement of a prior warrant was reiterated in U.S. v. U.S. District Court, 407 U.S. 297 (1972) (the Keith case). These principles do not embrace only to entirely foreign surveillance, excluded because “the Fourth Amendment does not apply to the search and seizure by United States agents of property owned by a nonresident alien and located in a foreign country” (United States v. Verdugo-Urquidez, 494 U.S. 259, 259 (1990)).
Statutory controversies: Foreign Intelligence Surveillance Act (FISA) of 1978 allows for warrantless electronic surveillance when it is directed at “contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title” (50 U.S.C § 1802 (a)(1)(A)). The three categories of foreign powers included into the provision are: foreign government or any component thereof, whether or not recognized by the United States; faction of a foreign nation or nations, not substantially composed of United States persons; an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments 50 U.S.C § 1801 (a)(1),(2),(3)). Other three categories, excluded from the scope of section 1801, are: a group engaged in international terrorism or activities in preparation therefore; a foreign-based political organization, not substantially composed of United States persons; or an entity that is directed and controlled by a foreign government or governments 50 U.S.C § 1801 (a)(4),(5),(6)). To remain compliant with the FISA requirements, the Government should have therefore applied for a FISA court order, pursuant to 50 U.S.C § 1805. Avoiding application of FISA, the it circumvented a main human rights safeguards established by FISA: 50 U.S.C § 1805(e)(1)—ninety day maximum duration of surveillance; 50 U.S.C § 1806(c)—notification of the person aggrieved and the opportunity to file a motion to suppress; 50 U.S.C § 1804(7)(e)(ii)—no less intrusive techniques available; 50 U.S.C § 1805(b)--proof of a probable cause that the target is either a foreign power or agent thereof.
Even if the Congress amends FISA in order to allow warrantless wiretaps to cover all six categories of foreign powers or otherwise vindicates warrantless surveillance as envisaged by TSP, as to compliance with the spirit of the U.S. Constitution will remain. Profoundly from the U.S. constitutional tradition stems what Lord Chief Justice Camden pronounced in Huckle v. Money, 95 Eng. Rep. 768 C.P. 1763 a quarter thousand years ago: “nameless warrant (…) is worse than the Spanish Inquisition”. Justice Powell, in his opinion to the Keith case, plainly presented reasoning for such a conclusion (United States v. United States District Court, 407 U.S. 297, 317 (1972)): „The historical judgment, which the Fourth Amendment accepts, is that unreviewed executive discretion may yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy and protected speech”.
Unbalanced warrantless surveillance is therefore in a position to infringe the First Amendment to the U.S. Constitution as well. According to the same Judge: “History abundantly documents the tendency of Government - however benevolent and benign its motives - to view with suspicion those who most fervently dispute its policies. Fourth Amendment protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs” (United States v. United States District Court, 407 U.S. 297, 314 (1972)). And according to the Supreme Court in Marcus v. Search Warrant, 367 U.S. 717 (1961): “The Bill of Rights was fashioned against the background of knowledge that unrestricted power of search and seizure could also be an instrument for stifling liberty of expression.”
Judge Diggs Taylor suggested that redefinition of FISA should follow solutions provided for by the Supreme Court in Keith--U.S. v. U.S. District Court, 407 U.S. 297 (1972) (one may infer that the Judge referred particularly to the following excerpt in the Justice Powell’s opinion in Keith: “Different standards may be compatible with the Fourth Amendment if they are reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens” (at 322-323)) and Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (in which the Supreme Court held that a United States citizen may be held as an enemy combatant, but is nevertheless protected by the Fifth Amendment to the U.S. Constitution and should therefore be given due process of law; according to this reasoning, an exercise of the "necessary and appropriate force" even if vested to the President by the Congress can not encroach on the protection provided for by the First and the Fourth amendment). The Judge ended her opinion with a quotation from Justice Warren in U.S. v. Robel, 389 U.S. 258 (1967): “Implicit in the term 'national defense' is the notion of defending those values and ideas which set this Nation apart.... It would indeed be ironic if, in the name of national defense, we would sanction the subversion of ... those liberties ... which makes the defense of the Nation worthwhile.” Id. at 264.
For privacy concerns one more, evidentiary, aspect is important. NSA moved for summary judgment based on state secret privilege, i.e. an evidentiary rule preventing the disclosure of information which may be detrimental to national security.
On the one hand, in Ellsberg v. Mitchell, 709 F.2d 51 (D.C. Cir. 1983) (claims of illegal wiretaping defendants and attorneys in the “Pentagon Papers” criminal prosecution), where state secret privilege was granted, the court stressed that the privilege "may not be used to shield any material not strictly necessary to prevent injury to national security; and, whenever possible, sensitive information must be disentangled from nonsensitive information to allow for the release of the latter” Ellsberg, 709 F.2d at 56. By the same token, in a case regarding communications records intercepted within Terrorist Surveillance Program Hepting v. AT&T Corp. 2006 WL 2038464 (N.D.Cal.2006) the judge refused to grant state secret privilege, arguing that, due to public admissions by a reliable source--the Government--regarding the program, he could not “conclude that the existence of a certification regarding the 'communication content' program is a state secret" (Hepting, 2006 WL 2038464, at 19). Limitations on the state secret privilege are profoundly justified. As David Broiles wrote in the blog of ACLU, February 5, 2007: "the one who controls the facts always controls the outcome. The one thing judicial independence presupposes, is that the facts will be impartially and openly determined, so that laws can be applied to reach a just outcome."
But the state secret privilege was successfully invoked i.a. in Halkin v. Helms, 598 F.2d 1 (D.C. Cir.1978) (Halkin I), where, on appeal, the District of Columbia Circuit Court dismissed claims of plaintiffs, Vietnam War protestors, who sued members of intelligence agencies for alleged warrentless surveillance, in cooperation with telecommunications providers, of their international communications. Even though the trial court had sustained the claims regarding one of two questioned wiretapping operations (SHAMROCK) on the ground that "congressional committees investigating intelligence matters had revealed so much information about operation SHAMROCK that such a disclosure would pose no threat to the NSA mission" (Halkin I, at 10), the appelate court reversed the stance arguing that confirmation or denial of surveillance would cause a reasonable danger of disclosing NSA’s valuable intelligence information (Halkin I, at 10). Lately, in El-Masri v. Tenet, 2006 WL 1391390 at 7 (E.D.Va., 2006), claims regarding Extraordinary Rendition were dismissed for the sake of preventing disclosure of state secrets.
Judge Diggs Taylor refused the core of the state secret privilege claim only because the government publicly conceded authorizing the program and depicted its general institutional frame after the information had leaked to press. The result is that “Plaintiffs here are not seeking any additional discovery to establish their claims challenging the TSP”, as Judge Diggs Taylor put it.
Surely the government admitted some of the facts believing that the scheme can passed judicial muster. But if the appellate court upholds the position of the trial court and if there are other programs alike, the government may find refusing their existence a safer path to follow, even if it is not easy to keep massive surveillance systems secret for long, and revealing them against governmental assurance could amount to a major political crisis. In ACLU v. NSA at least, stubborn refusals of leaks and coverage in media would have allowed the administration to invoke the state secret privilege successfully.
And the defendants did manage to invoke the privilege successfully for surveillance technique particularly questionable in privacy terms—data-mining. The Court granted defendants the motion for summary judgment in that respect, because “Plaintiffs cannot establish a 'prima facie’ case to support their data-mining claims without the use of privileged information and further litigation of this issue would force the disclosure of the very thing the privilege is designed to protect”. From the legal perspective, data-mining--sorting through large amounts of data and picking out relevant information--is particularly intrusive and its very nature precludes confining wiretapping to persons explicitly mentioned in a warrant. In a longer term, its efficiency is also flawed on two ‘technical’ grounds--scarcity of suspect datapoints and learning capabilities of adversaries. On the other hand, however, this technique has been cited, according to Wikipedia as the method by which the U.S. Army unit Able Danger supposedly had identified the 9/11 hijackers as possible members of an al-Qaeda long before the attack.
Still, because the U.S. government has not revealed any data on how helpful the program has been for the five years of its existence, it is particularly difficult to assess how indispensable the privacy intrusion it ensues really is for the security of the U.S. persons it purports to protect.
Hepting v. AT&T Corp
This prong of anti-TSP legal battle is an aftermath of the article “NSA has massive database of Americans' phone calls” that the USA Today published on May 11, 2006. It alleged cooperation between BellSouth, Verizon and AT&T, on one hand, and NSA, on the other, in giving NSA access to the telecom operators' databases of domestic communications records. According to sources invoked in the article “the spy agency is using the data to analyze calling patterns in an effort to detect terrorist activity”. And a former technician of AT&T, Mark Klein, reported, for the purposes of the lawsuit, intelligence data-mining Narus STA 6400 equipment in a secret room in San Francisco AT&T facilities in 2003. The equipment was allegedly connected to Worldnet circuits by fiber optic cables, splitting off Worldnet light signals for data-mining purposes. Instead of attacking NSA outright, the lawsuit targets the telecommunications operator, in order to warn othercorporations willing to involve in future clandestine governmental programs based on questionable legal assumptions (only Qwest Communications International Inc. refused NSA's requests to access private communications records of customers). Because BellSouth and Verizon denied their involvement in the program, while AT&T and the government have neither confirmed nor denied involvement of AT&T, only the latter one was sued.
Plaintiffs claimed that by revealing communications records to NSA AT&T violated, among federal laws, the First and Fourth Amendments, FISA’s prohibition on engaging in electronic surveillance under color of law (50 USC § 1809), a prohibition, established by Electronic Communications Privacy Act of 1986, of interception and disclosure of wire, oral, or electronic communications (18 USC §§ 2511(1)(a), (1)(c), (1)(d) and (3)(a)), a prohibition of unauthorized publication or use of communications 47 USC § 605, and a ban on voluntary disclosure of customer communications or records against prohibition 18 USC § 2702.
In the order issued in July 2006, United States District Chief Judge Vaughn R. Walker noted:
“that despite many public reports on the matter, the government has neither confirmed nor denied whether it monitors communication records and has never publicly disclosed whether the NSA program reported by USA Today on May 11, 2006, actually exists (…) Hence, unlike the program monitoring communication content, the general contours and even the existence of the alleged communication records program remain unclear.” (p. 40-41).
When the very existence of a program is unclear, dismissing the case on the ground of the state secret privilege is plausible. But the Judge Walker rejected defendants’ claim concerning that matter, justifying his conclusion with an ingenious reasoning worth quoting in extension:
“Nonetheless, the court is hesitant to conclude that the existence or non-existence of the communication records program necessarily constitutes a state secret. Confirming or denying the existence of this program would only affect a terrorist who was insensitive to the publicly disclosed “terrorist surveillance program” but cared about the alleged program here. This would seem unlikely to occur in practice given that the alleged communication records program, which does not involve listening in on communications, seems less intrusive than the “terrorist surveillance program,” which involves wiretapping. And in any event, it seems odd that a terrorist would continue using AT&T given that BellSouth, Verizon and Qwest have publicly denied participating in the alleged communication records program and would appear to be safer choices. Importantly, the public denials by these telecommunications companies undercut the government and AT&T’s contention that revealing AT&T’s involvement or lack thereof in the program would disclose a state secret” (p. 41).
In other words, because the government admitted that the NSA’s eavesdroping program existed, then an adjacent scheme related to communications records is also hot. And when one denies the fact of clandestine cooperation, the cooperation itself is not secret anymore. The reasoning itself is weird, especially in its second part. After all, only Qwest issued a statement confirming NSA’s requests for access to communications data. BellSouth and Verizon simply asserted neither signing any contract with NSA nor divulging any records to it (as they could deny cooperating with a secret service of Cuba, which would not mean that the service undertakes any surveillance program, secret or otherwise). But the foregoing justification allowed Judge Walker not to refrain from controlling the program at the preliminary stage. He wrote in that respect: “The compromise between liberty and security remains a difficult one. But dismissing this case at the outset would sacrifice liberty for no apparent enhancement of security.” (p. 36). On the other hand, denying the motion to dismiss the case preliminarily does not equal a final settling it in favor of the plaintiffs. In fact, cases of ‘’Halkin v. Helms’’, 598 F.2d 1 (D.C. Cir.1978) (Halkin I), “Halkin v. Helms”, 690 F.2d 977, 994 (D.C. Cir. 1982) (‘’Halkin II’’) and Ellsberg v. Mitchell, 709 F.2d 51 (D.C. Cir. 1983) demonstrate that the state secret privilege is in a position to bar discovery of evidence even in the phase of the fully-fledged trial. And Judge Walker alluded to this scenario (p. 32, 34-36). Unless defendants reveal further information voluntarily (or by mistake).
