Forgetting Lessons of 9/11, Rebuilding FISA ‘Wall’ Would Be a Mistake

COMMENTARY Homeland Security

Forgetting Lessons of 9/11, Rebuilding FISA ‘Wall’ Would Be a Mistake

Dec 5th, 2017 11 min read
COMMENTARY BY

Adjunct Professor, Scalia Law School, and 2006-2007 Clerk for Judge Gorsuch

A collection of newspapers and headlines responding to the September 11, 2001 terrorist attack on the World Trade Center in New York and the Pentagon in Washington, D.C. Photo by: iStock

This article is fourth in a series of five about the importance of Section 702. You can read the first article, “How the Section 702 Program Helps America Thwart Terrorist Plots,” here, the second article, “Anti-Terror Law’s Safeguards Against Incidental Collection of Domestic Data Are Sufficient,” here and the third article, “Ample Safeguards of Civil Liberties Warrant FISA Section 702’s Reauthorization By Congress,” here.

Section 702 of the Foreign Intelligence Surveillance Act (FISA) expires at the end of 2017.

Originally passed in 1978, FISA was amended in 2008 by the FISA Amendments Act, which added a new Title VII, providing authority, with prior court approval, for the U.S. government to target foreigners located outside the United States for intelligence collection, acquiring the intelligence from service providers located in the United States.

Since 2008, this surveillance of the online activities of targeted foreigners has provided invaluable information to American intelligence officials in the fight against terrorism and for the protection of our national security.

It’s estimated that more than 25 percent of all current U.S. intelligence is based on the information collected under Section 702. The program is also subject to oversight by inspectors general from multiple agencies, the congressional intelligence committees, the Foreign Intelligence Surveillance Court, and the Privacy and Civil Liberties Oversight Board.

This oversight is designed to help ensure that the collection authorized by Section 702 is conducted within the law, which itself was designed to achieve a balance between the national security interests of the government and the privacy and civil liberties of our citizens.

Critics have raised concerns that the collection authorized by Section 702 infringes on Americans’ rights because, even though the collection only authorizes the targeting of foreigners located overseas, it inevitably obtains communications of any Americans that communicate with such foreigners.

As a result, concerns have been raised that Section 702 does not adequately protect the rights of those Americans whose communications are incidentally collected.

The Heritage Foundation, in a 2016 paper, Maintaining America’s Ability to Collect Foreign Intelligence: The Section 702 Program, has taken the position that Section 702 is a constitutional, lawful, and effective program.

This blog series addresses the main concerns about the Section 702 program in greater depth and shows how those concerns are misguided, highlights the effectiveness of Section 702 as a targeted foreign-intelligence program, and looks at some of its most successful cases.

Ultimately, this blog series concludes that the 702 program is so vital to America’s national security that Congress should reauthorize Section 702 in its current form with minimal, if any, changes.

Queries of Section 702 Data

One critically important aspect of the government’s collection under Section 702 is that the program may be able to provide information about foreign intelligence targets, particularly terrorists, that are communicating with Americans or others in the United States.

In an era where groups such as ISIS are increasingly seeking to radicalize our own people against us, using vehicles and other ordinary items as their weaponry, and when nations such as Russia are seeking to sow dissent across our nation and manipulate our electoral processes, many (including this author) have argued that it is all the more critical that we know when foreign intelligence targets abroad are communicating with Americans.

That is not to say the Section 702 program is designed to collect the communications of Americans or people in the United States by targeting foreigners located overseas. To the contrary, the reverse targeting of a foreigner in order to collect information on an American is explicitly illegal under the FISA Amendments Act.

Rather, the reality simply is that if our government is lawfully targeting a foreigner located outside the United States, if that foreigner decides to communicate with an American, the government will likely acquire that communication also.  And it is very likely that such communication might be quite important if it involves, for example, terrorist plotting or acquisition of government secrets.

But therein also lies the concern: If Americans’ communications will be swept up under Section 702 in the course of surveillance of foreigners located overseas—a collection that takes place through the legally compelled cooperation of American telecommunications service providers—how are we to ensure that the rights of those Americans are appropriately protected?

The general rule, of course, is that the government is required to propose minimization procedures designed to keep to a minimum the collection, retention, and dissemination of unconsenting U.S. person data before the FISA court will approve collection under Section 702.

And, in addition to ensuring that the government-proposed procedures appropriately ensure the targets of collection under Section 702 are only foreigners located outside the United States, the FISA court is also required by statute to evaluate whether the collection is consistent with the Fourth Amendment.  That is, that the collection proposed has adequate procedures in place to protect the rights of incidentally collected Americans under the Fourth Amendment’s general reasonableness requirement.

Nonetheless, critics remain concerned that these protections simply aren’t enough, given the way the government has made clear it intends to use Section 702 collected data.

The Criticism

The most concrete example of such a concern in the ongoing reauthorization debate comes up when the government is interested in searching Section 702 data, once it is lawfully collected, for information associated with a U.S. person (e.g., an American citizen or green card holder).

The government may want to do so in the course of a foreign-intelligence investigation or even in the course of a standard criminal investigation.  And, since foreigners located outside the United States have no legal rights under our Constitution, there is no warrant requirement for the Section 702 collection, so the information being searched was obtained without the normal requirements applicable to a criminal search warrant (i.e., probable cause to believe a crime has been committed and a particularized description of the place to be searched or the things to be seized).

Instead, for Section 702 surveillance to be lawful, among other things, the government must demonstrate to the FISA Court that the overall collection complies with the Fourth Amendment, that it has minimization procedures in place to protect Americans who are incidentally collected, and that its procedures for determining that the target of surveillance be reasonably believed to be a foreigner located abroad, and that the purpose of the surveillance is to collect foreign intelligence.

Indeed, once the FISA court has determined that the overall collection sought by the government is lawful, the procedures for evaluating the foreign nature and location of the target are appropriate, the minimization procedures are likewise appropriate, and that the collection meets the overall reasonableness requirements of the Fourth Amendment, the government is not required to identify the specific, individual targets of the surveillance to the court.

So, the concern here is that the government might get access to the communications of Americans (albeit the communications of Americans with a valid foreign intelligence target located abroad), and then be able to search those communications without more, and in particular, without a warrant based on probable cause to believe a crime has been committed.

This, in turn, raises a variety of concerns, including that FISA surveillance will be used as a workaround by criminal investigators to obtain information for investigation of crimes without having to meet the more rigorous standards applicable in traditional criminal investigations, including the requirement for a warrant to obtain communications content.

In order to address these concerns, various options have been proposed, with the most straightforward being the imposition of a warrant requirement for the government to obtain access to the results of certain types of searches utilizing U.S. person identifiers.

That is, under such proposals, a variant of which is included in the legislation currently under active consideration in the U.S. House of Representatives, the government could continue to collect information under Section 702, and could search and utilize that information for certain purposes, including when the primary purpose of the search is to obtain foreign intelligence information.

However, the government’s ability to search and, in particular, to review or utilize Section 702 collected data for criminal purposes would be significantly constrained.  Essentially, while the government could conduct the initial search, it would be prohibited from looking at the actual content until it obtained an ordinary criminal warrant from a federal judge.

The Response

While the concept of neatly distinguishing between criminal matters on one hand and foreign intelligence matters on the other has a surface appeal, in reality they are much more closely related than one might think.

For example, most activities undertaken by foreign intelligence targets (and sometimes those they communicate with), particularly those seeking to recruit Americans in the United States for terrorist attacks or to betray our country, are not only topics of concern for our intelligence community, they are often a violation of American laws.

This is true of crimes running the gamut from espionage to material support of terrorism.  Moreover, the links between ordinary criminal activity and terrorist groups, both as a funding method and as a way of moving money, people, and weapons, are long established, from militant groups such as Hamas and Hezbollah, all the way to al Qaeda and ISIS.

From cigarette smuggling to human trafficking, terrorist groups engage in criminal activity for a variety of reasons, and investigating such crimes, alongside the terrorist groups themselves, often reveals hidden connections and opportunities for additional intelligence collection.

Moreover, we’ve learned the lesson in the past from trying to make clean distinctions between ordinary criminal matters and foreign intelligence investigations. Indeed, before the 9/11 attacks, courts interpreting the Foreign Intelligence Surveillance Act and other legal requirements created just such a test to differentiate between criminal and intelligence matters.  That test, just like the current House Judiciary bill, looked at the primary purpose of the search to determine whether FISA-authorized collection might be appropriately used.

In implementing this judicially crafted requirement, the government erected what has amounted to (and, therefore, was colloquially referred to as) a “wall” between criminal and foreign intelligence investigations.  And while this “wall” was not without its gates for passing information back and forth, both the reality of the “wall,” and the legal mythology that developed around it, essentially made it very difficult for intelligence agents and criminal agents—even those within a single organization or cross-detailed to an organization—to effectively share information across this artificial barrier.

This, in turn, led to all sorts of information-sharing problems, including those described in significant detail in the 9/11 Commission’s report, which recounts the story of the criminal investigation into the al Qaeda attack on the U.S.S. Cole, as well as a separate intelligence investigations of certain al Qaeda operatives, including 9/11 hijackers Nawaf al-Hazmi and Khalid al-Midhar, both of whom were observed by the CIA attending an al Qaeda meeting in Kuala Lumpur, Malaysia, before traveling to the United States before the 9/11 attacks.

Both of the investigations had links through a couple of related individuals, but challenges and misperceptions related to the “wall” led to information not being shared quickly or robustly.  In particular, the 9/11 Commission report details an email from an FBI agent in the field noting that these challenges in sharing information “over the wall” were so significant that, in his view, “someday someone will die—and wall or not—the public will not understand why we were not more effective and throwing every resource we had at certain ‘problems.’”

While there is no specific evidence to suggest that if the “wall” or the challenges and misperceptions it led to had not existed, agents would certainly have disrupted the 9/11 attacks, there is at least the potential that either Hazmi or Midhar—or both—might have been identified sooner, given that they had lived for quite a while in the United States in their true names.

More to the point, however, were the recommendations made by the 9/11 Commission and multiple other governmental and nongovernmental panels since that advocated for dismantling the wall” between criminal and foreign intelligence investigations and increasing the sharing of information and intelligence, in an effort to permit government officials to “connect the dots.”

These recommendations, reiterated by the Weapons of Mass Destruction Commission looking at the Iraq intelligence failures years later, ultimately resulted in the passage of multiple pieces of legislation, including the USA PATRIOT Act, the Intelligence Reform and Terrorism Prevention Act, and, yes, the FISA Amendments Act.

Indeed, the emphasis on sharing intelligence was so strong, it led the government to take up its first-ever appeal (in nearly 30 years) to the FISA Court of Review in In re Sealed Case. In that case, Judge Laurence Silberman, of the U.S. Court of Appeals for the D.C. Circuit, writing for the full three-judge FISA Court of Review, held that the creation of the primary purpose test by other courts had been based on a mistaken interpretation of existing law and that the USA PATRIOT Act made clear that the “wall” it fashioned was to be completely dismantled.

All of these lessons learned in the immediate aftermath of 9/11 and the intelligence failures of Iraq seem long-forgotten now as the House of Representatives—in the absence of any evidence of improper use of Section 702 information for criminal purposes or as a workaround to normal judicial processes—nonetheless seems poised to consider legislation that would work a re-establishment of nothing less than a new “wall.”

Indeed, not only would the House Judiciary bill re-erect the “wall” through search and review restrictions, dismantling over a decade and a half of work to reduce barriers to information-sharing and to turn the FBI into a hybrid law enforcement and intelligence organization, it would establish in statute the very “primary purpose” test that Judge Silberman held the courts had erroneously read into prior statutes—the very same test that led to the creation of the “wall” and the intelligence-sharing failures in the days, weeks, and months before 9/11.

Perhaps even more telling is the fact that the bill goes out of its way, in nonbinding text, to protest that it does not, in the view of its authors at least, re-establish the “wall.”

Such restrictions are not only unwise as a matter of policy, they are downright dangerous in an era of increasing terrorist threats to the West, both in Europe and here at home.  At a time when European nations are taking steps to strengthen their intelligence-collection laws in light of the growing threat, for the United States to voluntarily step back and limit our own authorities—and worse, with no basis in law or policy for doing so—seems silly at best, and catastrophically blind at worst.

In essence, the House Judiciary bill would take the very dots that the FBI and intelligence community have repeatedly been told to connect and would hide them in a closet, locked away from the light of day until a federal judge provides his consent to the FBI to search its own lawfully collected records for information of a federal crime.

It is worth remembering that what we’d be asking the FBI to do, in a fairly unprecedented move, is to ignore evidence in their own collection while trying to persuade a judge that there is probable cause to believe a crime has been committed, even though all the while such evidence may be sitting in those very FBI records.

At the end of the day, the question that Congress must examine is whether such changes will make us more or less safe, and how to weigh that against the ostensible gains for privacy and civil liberties, particularly in the absence of any evidence that there is any actual harm to these important values under current law.

There is little reason to think that balance should come out any different today than it did in 2012, when Congress reauthorized the FISA Amendments Acts by broad bipartisan margins. To the contrary, given the diversity and nature of the threats we face today, the case is stronger, not weaker, for clean reauthorization.

As such, the FISA Amendments Act ought to be reauthorized for as long a period as possible in its current form, or with as few changes as possible.  And under no circumstances should Congress significantly limit access to lawfully collected data in the hands of the government, particularly given the nature and scope of the threats facing our nation at this critical time.

This piece originally appeared in The Daily Signal