Gonzales' Trojan horse.

Gonzales' Trojan horse.

Gonzales' Trojan horse.

The law, lawyers, and the court.
Jan. 19 2007 2:22 PM

Gonzales' Trojan Horse

FISA-approved surveillance may not be a civil-liberties coup.

Attorney General Alberto Gonzales. Click image to expand.
Attorney General Alberto Gonzales

When Attorney General Alberto Gonzales sent a cryptic, four-paragraph letter to the Senate judiciary committee Wednesday, maintaining that from now on, the Bush administration will conduct its domestic surveillance program "subject to the approval of the Foreign Intelligence Surveillance Court," it looked like the administration was backing down. "Bush Retreats," the Washington Post declared, adding that the letter marked the president's "latest step back from the expansive interpretation of executive power."

But civil libertarians and administration foes should keep the Champagne on ice for the moment, because while Gonzales' letter looks like a surrender, it may prove to be a Trojan horse. A close read of the administration's Delphic pronouncements on this about-face reveals a major, unresolved contradiction: The National Security Agency surveillance program and the FISA system, as it currently exists, are fundamentally incompatible. Any hasty reconciliation of the two will involve either a dramatic revision of our espionage activities or a very creative reading of the wiretapping statute. For this marriage to work, one of them must be compromised. The question is, which one?

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Critics have raised questions about the timing of this particular policy change, and it surely is no accident that Gonzales released the letter one day before appearing in front of the Senate judiciary committee, and two weeks before scheduled oral arguments in a 6th Circuit appeal of a trial court's finding that the wiretapping program is unconstitutional. It's tempting to see this reversal as just the latest instance of the administration suddenly abandoning its most adamantly held positions in the face of impending censure by the courts. But whereas the transfer of Jose Padilla from military prison to the criminal justice system or the release of Yaser Hamdi represented tangible, verifiable concessions by the Bush administration, just what precisely will change about the day-to-day operation of the surveillance program remains entirely unclear.

In his letter, Gonzales says that on Jan. 10 of this year, a judge on the Foreign Intelligence Surveillance Court "issued orders authorizing the Government to target for collection international communications into or out of the United States where there is probable cause to believe that one of the communicants is a member or agent of al Qaeda or an associated terrorist association."

This sounds promising. One of the glaring problems with the warrantless wiretapping program as it existed until now was that it relied not on probable cause, as determined by a judge, but on what CIA Director Michael V. Hayden—who initiated the program when he was head of the NSA in 2001—called a "subtly softer trigger."

But Gonzales goes on to say that "any electronic surveillance that was occurring as part of the Terrorist Surveillance Program will now be conducted with FISA court approval." And here things get a little fishy. According to reports, the NSA program is a wholesale, rather than retail, operation: It scans the communications of tens of thousands of people and analyzes staggering volumes of phone calls and e-mails. A "subtly softer trigger" is shorthand for "not very discriminating."

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That explains why the administration couldn't clear the program through the FISA system in the first place: FISA (and, uh, the Fourth Amendment) require individualized warrants. In a January 2006 press conference, President Bush explained, "I said, look, is it possible to conduct this program under the old law? And people said, it doesn't work." So, if the surveillance program and the FISA were utterly incompatible a year ago—so incompatible, in fact, that the White House opted to break the law, rather than try to amend it—then how are things different today?

Let's dispense with the less plausible scenario first: that the NSA just decided to call it quits where large-scale data mining and link analysis were concerned, and return to old-fashioned one-wiretap-at-a-time spying. While there's compelling evidence that these wholesale espionage techniques are inefficient, it seems unlikely that the administration would abandon so ambitious an operation, for which it has already paid so considerable a political price. In a press briefing Wednesday, Tony Snow acknowledged that, "The program pretty much continues." And when a senior Justice Department official was asked in a background briefing whether the program itself had changed or whether it had just been made more bureaucratically acceptable, he replied, "The objectives of the program haven't changed and the capabilities of the intelligence agencies to operate such a program have not changed as a result of these orders."

If this new judicial oversight doesn't alter the program, such oversight must entail a novel reading of the FISA statute. In the background briefing, one of the Justice Department officials said, tellingly, that in securing a compromise that allows the program to continue under the wiretapping law, administration lawyers had drawn on "our own approach to the statute." The officials said several times that the solution they had arrived at was "innovative," and one wonders whether they managed to innovate their way around one of the keystones of the FISA system—the requirement that warrants be issued on a particularized basis.

When Sen. Charles Schumer, D-N.Y., asked Gonzales point-blank during yesterday's hearing whether the order from the FISA judge was "a case-by-case basis order," Gonzales replied, as he did each time this question was posed, "I am not at liberty to talk about those specifics."

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If it's all right with the FISA court, it should be all right with you guys, Gonzales reiterated throughout the testimony. But then, the Jan. 10 orders had not come from the entire panel, or even from the FISA court's presiding judge, Colleen Kollar-Kotelly, but from one particular judge who happened to be on duty that day. These orders appear to be unappealable, and no one outside the FISA court and the administration knows what they say. The senators wanted to see the orders themselves, but Gonzales objected that they contain classified information. "Are you saying that you might object to the court giving us decisions that you've publicly announced?" Patrick Leahy, D-Vt., asked angrily. "Are we a little Alice in Wonderland here?"

Basically, Gonzales replied.

In this information vacuum, some have speculated that the judge's orders simply amount to a blanket authorization of the old wiretapping program—a sort of FISA-court-sanctioned license to violate the FISA. Rep. Heather A. Wilson, R-N.M., who sits on the House intelligence committee, said that the orders constituted a "programmatic approval" and lacked the FISA's safeguards for civil liberties. Another official told the Washington Post that "the change was 'programmatic,' rather than based on warrants targeting particular cases." A programmatic authorization would hardly signal a retreat by the administration. In fact, blanket FISA-court authorization was a feature in Arlen Specter's NSA bill, which was also erroneously marketed as a compromise.

But there's also some indication that the orders aren't a blanket authorization. "These orders are not some sort of advisory opinion ruling on the program as a whole," one of the Justice Department officials said in the background briefing, and Specter says he has been briefed by administration lawyers and that the new arrangement is based on individualized warrants.

The truth may lie somewhere in between. The Post reports that four other officials familiar with the program said it is "a hybrid effort that includes both individual warrants and the authority for eavesdropping on more broadly defined groups of people." Law professor and blogger Orin Kerr suggested that the answer may be "anticipatory warrants." These warrants can be approved by a judge in advance and stipulate a series of circumstances that will trigger the warrant into action. Kerr speculates that in arriving at their "innovative" theory, DOJ lawyers may have drawn on a case that was decided last March, United States v. Grubbs, in which the Supreme Court approved the use of anticipatory warrants.

What is clear is that until the administration furnishes more detail about the new arrangement, any suggestion that the orders represent a compromise or retreat is premature. Judge Kollar-Kotelly wrote a letter to Sens. Leahy and Specter saying that she has "no objection to [the orders] being made available" to lawmakers, and Gonzales may have sparked enough rancor on both sides of the aisle that Congress will press the issue and demand to see them.

But perhaps the most telling—and worrying—aspect of the hearings yesterday was Gonzales' insistence that while the administration is now submitting the surveillance program to the FISA system, he does not believe that it was ever illegal to go around FISA in the first place. As Sen. Schumer was quick to point out, the fact that the White House is billing its new friendliness to the FISA as a courtesy, and not a legal obligation, means there's no reason to believe the administration will feel bound by any new set of procedures, however secretive or accommodating. "Just as you instituted this program," Schumer said, "you could just go back to it if you get a decision you don't like."