The Right to Privacy in Light of Presidents' Programs: What Project MINARET's Admissions Reveal about Modem Surveillance of Americans

By Lisa Graves
This is the way the world ends. This is the way the world ends. This is the way the world ends. Not with a bang but a whimper. -T.S. Eliot, "The HollowMen" Introduction Some at this symposium suggested abandoning the concept of privacy altogether' while others swept it away with the wave of a hand, dismissing the rubric of rules as the "fog of law."^ Outside this convening, some have long lamented the death of privacy^ and some radical theorists have argued it was never bom in the first place."* Still, others have refused to concede either existential ground and have fought valiantly to preserve this cherished value and what it protects.^ I, for one, am not ready to relinquish the idea of privacy, especially at this juncture in America's history.

* Lisa Graves is the Executive Director of the Center for Media and Democracy, Some of the analysis in this Article is the result of conversations with my colleagues in the civil liberties and national security community and elsewhere over the past few years, including policy experts and allies such as Michelle Richardson, Kate Martin, Suzanne Spaulding, Nancy Chang, Wendy Patten, Mike German, Shahid Buttar, James Dempsey, Patrice McDermott, Lynne Bradley, Kate Rhudy, and Cadence Mertz, as well as former Congressman Bob Barr, Bruce Fein, and John Dean, plus experts in litigation and strategy such as Ann Beeson, Jameel Jaffer, Melissa Goodman, Cindy Cohn, Kevin Bankston, and Lee Tien, and many others too numerous to name, I am also very appreciative of the research assistance and fme editing of Brendan Fischer, University of Wisconsin Law Class of 2011, Any mistakes, of course, remain my own. And I am grateful to Professor Bobby Chesney of The University of Texas School of Law for this invitation as well as to my colleagues at the Symposium and the students on the Texas Law Review, 1, See Benjamin Wittes, Brookings Inst,, Panel 1: National Security, Privacy, and Technology
(I), at the TEXAS LAW REVIEW SYMPOSIUM: LAW AT THE INTERSECTION OF NATIONAL SECURITY,

PRIVACY, AND TECHNOLOGY (Feb, 5, 2010), http://www,texaslrev,com/symposium/listen (arguing that the gathering of personal data violates some unidentified value but that value is not "privacy"), 2, Kim Taipale, Executive Dir,, Ctr, for Advanced Studies in Sei, and Tech, Policy, Remarks Panel 5: Accountability Mechanisms, Symposium, supra note 1, 3, See, e.g.. A, Michael Froomkin, The Death of Privacy?, 52 STAN, L, REV, 1461, 1475-1501 (2000) (detailing pre-9/11 technologies that were destroying informational privacy), 4, See, e.g., Robert H, Bork, Neutral Principles and Some First Amendment Problems, 47 IND, L,J, 1, 8-9 (1971) (criticizing Justice Douglas's interpretation of a constitutional right to privacy as a value inherent in several amendments to the Constitution, in Griswold v. Connecticut, 381 U,S, 479(1965)), 5, See, e.g., Terkel v, AT&T Corp,, 441 F, Supp, 2d 899, 901 (N,D, III, 2006) (describing a proposed class action brought against AT&T for its release of records to the NSA); Plaintiffs' Opposition to the Motion of Defendant AT&T Corp, to Compel Retum of Confidential Documents at 1, Hepting v, AT&T Corp,, No, C-06-00672-VRW, 2006 WL 1581965 (N,D, Cal, May 17, 2006)

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Instead, we must reclaim privacy and re-emphasize its status as an integral component of human freedom and dignity in spite of the downward spiral ofthe law's conception of privacy; indeed, because of this spiral. If we do not do so now we may never be able to reclaim it. The intersection of national security "needs" and omni-surveillance technological capacity marketed to us by corporations as great new tools of convenience to connect with our family, friends, and colleagues but also powerfully intmsive tools in the hands of the govemment^is simply too dangerous to essential liberty and to genuine security to be l^ft largely unpatrolled.* In my view, the constitutional touchstone of "reasonableness" is just too malleable to protect against the real dangers of the symbiotic relationship between the govemment and corporations, let alone the insatiable desire of the govemment to know more. And these were my fears before Google was a word, let alone an empire;^ before most of the transactions of daily life were transmuted into traffic on the Intemet; and before a handful of murderers dramatically toppled the World Trade Center and smashed into the Pentagon in 2001. Shortly after these world-altering events emerged at the outset of the 21st century, the Administration of President George W. Bush and Vice President Richard B. Cheney claimed "plenary"^ power, especially in the areas of search and seizure and other acquisition activities, in the name of "national security." This was a policy arena that had been govemed by the Constitution's Fourth Amendment as well as a web of lawthe Foreign Intelligence Surveillance Act (FISA),' executive orders, and agency mies that had been agreed to by the political branches in the aftermath of the last administration that had claimed unlimited power to conduct warrantless searches of Americans' communications in the name of national security, the Nixon Presidency."*

(arguing that the interception of private eommunications violates the First and Fourth Amendments); As this Article goes to press. Judge Vaughn Walker issued a ruling in favor of the plaintiffs in their challenge to warrantless wiretapping in the al Haramain case. In re Nat'l Sec, Agency Telecomms, Records Litig,, MDL Docket No, 06-1791, 2010 WL 1244349 (N,D, Cal, Mar, 31,2010), 6, Credit for this visualization is due Alex Joel, the Civil Liberties Protection Officer of the Office of the Director of National Intelligenee, who described his official role at this intersection during the Symposium, See Alex Joel, Civil Liberties Prot, Officer, Office of the Dir, of Nat'l Intelligence, Panel 2: National Security, Privacy and Technology (II), Symposium, supra note 1, 7, See Google, Corporate Information, Google Milestones, http://www,google,com/intl/en/ corporate/history,html (recording the American Dialect Society's selection of "google" as the most useful word ofthe year in 2002), 8, See Bob Woodward, Cheney Upholds Power ofthe Presidency, WASH, POST, Jan, 20, 2005, at A07 (describing Cheney as "especially critical of anything that would undermine the president's powers as commander in chief), 9, See Foreign Intelligence Surveillance Act of 1978, Pub, L, No, 95-511, 92 Stat, 1783 (codified as amended in scattered titles of U,S,C,), 10, See Jed Rubenfeld, The End of Privacy, 61 STAN, L, REV, 101, 158 (2008) (explaining that FISA was enacted in response to the assertion of the Executive Branch that it had the power to

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The main goal of this Article is to question what an unreasonable search and a reasonable expectation of privacy mean in the national security context in the aftermath of the changes made, or urged, by the Bush Administration. Rather than explore these issues abstractly, I want to view them through a lens from the past, not simply because "what's past is prologue,"" but because I think this will illuminate some of the crucial issues obscured in the recent debates over the Bush Administration's warrantless wiretapping activities. This examination is informed by viewing, in the new light of more recent information, declassified descriptions of the Signals Intelligence (SIGINT) activities during the period around the passage of FISA.'^ Specifically, this Article will examine the contemporaneous statements of the National Security Agency (NSA)in particular, a declassified Justice Department memoranda from 1976 by Dougald McMillan (the McMillan Memo)'''about the controversial classified program of President Richard M. Nixon called Project MINARET.''' These admissions shed light on statements about Bush and Cheney's more recent classified and highly controversial program that was known as the "President's Program" (PP) until it was publicly rebranded as the "Terrorist Surveillance Program" (TSP).'^ When viewed together, these and other recent public statements help clarify the legal arguments about incidentally collected infonnation. They also underscore the need for greater public understanding and debate over
search and seize outside of the limitations of the Fourth Amendment when acting to obtain intelligence for national security purposes). 11. WILLIAM SHAKESPEARE, THE TEMPEST 34 (Chauncey B. Tinker ed., Yale U. Press 1918). 12. Signals intelligence involves both communications intelligence and electronics intelligence. If the infonnation intercepted is transmitted by foreign powers it frequently needs to be decrypted, so cryptanalysis plays a significant role in SIGINT as well. See Jeffrey T. Richelson, THE U.S.
INTELLIGENCE COMMUNITY 180 (4th ed. 1999). 13. DOUGALD D. MCMILLAN, U.S. DEP'T OF JUSTICE, REPORT ON INQUIRY INTO C I A -

RELATED ELECTRONIC SURVEILLANCE ACTIVITIES (1976), available at http://www.gwu.edu/

~nsarchiv/NSAEBB/NSAEBB178/index.htm. The memo was originally released 1982 in response to a Freedom of Information Act request by James Bamford, who has written key books on the NSA's activities, including THE PUZZLE PALACE (1983) and most recently THE SHADOW FACTORY:
THE ULTRA-SECRET NSA FROM 9/11 TO THE EAVESDROPPING ON AMERICA (2008).

14. MCMILLAN, supra note 13, at 26. 15. The PP has also been described as including extensive "data-mining" activities and without adequate privacy protections for Americans. See Shane Harris, Homeland Sec. and Intelligence Correspondent, Nat'l Journal, Address at the Brookings Institution: The Rise of America's Surveillance State (Mar. 11, 2010), available at http://www.brookings.edu/~/media/Files/ events/2010/031 l_surveillance_state/201003 ll_surveillance_state.pdf (describing the PP). For purposes of this Article, I will use "the PP" to describe the true program in my estimation because it involves more than the surveillance of terrorists. (The Office of the Director of National Intelligence has recently claimed that the govemment does not engage in data-mining but instead uses a technique termed "link analysis" to mine the data it acquires, which many consider to be data-mining. See OFFICE OF THE DiR. OF NAT'L INTELLIGENCE, 2009 DATA MINING REPORT 1-2 (2010), available at http://www.fas.org/irp/dni/datamininglO.pdf (describing a narrow defmition of data-mining used by ODNI to make this claim).

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abstract terms of art that are now goveming the NSA's collection activity, namely "minimization rules" to "minimize" the use of information "lawfully acquired." This is especially important because we have not yet been able to obtain any altemative enforcement of the warrant requirement via litigating over the PP's expanded analysis of Americans' private communications.'* My hypothesis is that FISA has been amended to ratify the NSA setting up shop within the United States to monitor the ocean of information flowing through U.S.-based electronic communications providers and Intemet service providers (ISPs) in search of foreign intelligence information. I believe that the NSA's politico-military leadership considers communications of Americans thus obtained to be "incidental" to their foreign intelligence gathering efforts and, once lawfully acquired under this schema, to be fair game for ongoing analysis to some undisclosed extent. This accessibility exposes potentially enormous quantities of personal information about Americanstransmitted daily via various ISPs and other corporate digital platformsto virtually etemal search and analysis by the NSA, at least in theory.'^ And, right now, this program is primarily govemed by secret new minimization rules written by the Executive Branch, approved by FISA Court judges handpicked by Chief Justices John Roberts and William Rehnquist, and shared in some way with some serving on congressional committees, oversight committees which I fear have been captured in some ways by the Intelligence Community they are charged with regulating,'^ This Article questions the constitutionality of such collection and argues that this activity demonstrates the fundamental failure of a reasonableness test to adequately protect American's rights and interests in privacy, liberty, and security. Both security and liberty are gravely harmed by accepting the porousalmost nonexistent and nearly unenforceableboundaries for the protection of what should be considered the inalienable rights of Americans. This Article identifies critical information missing from the public discourse, a deficiency that prevents the American people from making genuinely informed democratic judgments about how best to protect our nationour

16, See Electronic Frontier Foundation, EFF's Case Against AT&T, http://www,efforg/nsa/ hepting (explaining that, iri June of 2009, a judge dismissed dozens of cases brought against telecommunications companies for collaborating with the NSA to wiretap Americans' communications without warrants), 17, See Jessica LoConte, FISA Amendments Act 2008: Protecting Americans by Monitoring International CommunicationsIs It Reasonable?, 1 PACE INT'L L, REV, ONLINE COMPANION (2010), http://digitalcommons,pace,edu/cgi/viewcontent,cgi?article=1304&context=intlaw (relaying Senator Feingold's concems that the FISA Amendments Act could mean millions of communications between Americans and their friends, family, and business associates oversees could be legally collected), 18, See Foreign Intelligence Surveillance Act of 1978, Pub, L, No, 95-511, 103, 92 Stat, 1783, 1788, (codified at 50 U,S,C, 1803 (2006)) (granting the Chief Justice of the United States authority to designate judges for the FISA courts).

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nation as a whole, not only our land and our infrastructure, but also the constitutionally secured blessings of liberty that help guarantee our freedom. This Article begins by describing in general terms the Fourth Amendment parameters for acquisition of our information and two modem strains of judicial thought about reasonableness versus warrants for govemment surveillance. The Article then examines certain declassified information about Project MINARET. It will then examine key statements by the Bush Administration about the PP and its rationale. The Article concludes with some observations about what this means for the privacy of the substance and transactions of Americans' daily life and the need for greater protections for the sake of liberty, security, and our future as a free people. I. A. Corporate and Govemment Interests and Constitutional Privacy Corporate "Freedom " and Incentives to Collect Information

Even before September 11th, I feared that the Fourth Amendment's interpretation would lead to major contractions in privacy based on irresistible technological advances.'^ That is because the Fourth Amendment has been constmed primarily to constrain the govemment, not corporations.^"

19, The Constitution states, The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized,
U,S, CONST, amend, IV,

20, See, e.g.. United States v, Jacobsen, 466 U,S, 109, 113 (1984) ("This Court has , , , consistently construed this protection as proscribing only govemmental action; it is wholly inapplicable 'to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Govemment or with the participation or knowledge of any govemmental official,'"). Although I am citing this precedent, I do not wish to give credit to this decision as correctly decided but merely acknowledge that it reflects the view of a majority of the Supreme Court at that time, I believe Justice White, in his concurrence, was correct to challenge this proposition, and that Justices Brennan and Marshall, in their dissent, had the better argument on the facts of this case. Furthermore, I disagree with this line of cases as a whole because there is nothing in the plain language ofthe first half of the Fourth Amendment that would necessarily limit its reach to only govemment actors: "[tjhe right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated , , , ," U,S, CONST, amend, IV, Only the second half of the Fourth Amendment refers to the rules for obtaining judicial approval for a search: "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized," Id. As a matter of pure interpretation of the plain English language, it would have been entirely plausible for the Court, and, more importantly, for the people, to construe the first half of the Amendment as a limitation on both private and govemment searches and seizures and to construe the second half as providing a particular set of rules for determining the circumstances under which a government-sanctioned search or seizure may occur or be reasonable. My views on the weight to be accorded to the drafter's intentions, or "original intent," are too voluminous to be contained in this note, but suffice it to say I believe language matters and intent

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And, generally, corporations by their nature are market-driven adopters of new technologies to maximize profit and minimize fraud or theft,^' and so far there has been almost no commercial downside to monitoring customers and "great" upsides to gathering information about us as consumers and then analyzing and marketing it, "commodifying" us.'^^ Accordingly, unless closely regulated by statute, corporations could deploy unlimited new technologies to monitor, and also charge for, activitiesespecially when serving as a necessary or convenient conduit for personal activities such as banking, communicating, or getting medical treatmentand thus erode our reasonable expectations of privacy without violating the Constitution, as interpreted. My thesis was that the govemment could and would ride piggyback on corporate knowledge and information gathering techniques. And, my worry was that the claim would be that the American people had no constitutionally cognizable privacy interests against the govemment knowing what the private sector knows about them. That is, although the govemment could not easily get away with being the search or seizure "innovator," it could ride the coattails of the for-profit sector, hunting and gathering on the fields of personal information accumulated by various corporations. This is so because today's dominant constitutional test that has emerged is not whether the govemment has a warrant but whether you have a "reasonable expectation of privacy"^'' regarding the infonnation the government seeks. And, if you had already "shared" information about yourself with a company, how could you successfully defend against the govemment knowing it too? However, in my view, simply because your bank, phone company, and doctor knows information about you should not mean that the govemment is entitled to it. In fact, the Supreme Court recognized that just because your phone conversations pass through the phone company does not mean that you have

tnay be in conflict, especially when one considers the narrow minds of some drafters, such as the men who amended the Civil Rights Act of 1964 to limit discrimination on the basis of sex in the hopes that the societal norm of discrimination against women would make this a poison pill to sink the bill, I would be surprised, however, if some of those who ratified the Fourth Amendment did not intend or hope it would protect against unreasonable searches and seizures, no matter whether the searchers were employed by the British Crown or the chartered East India Trading Company, although the conventional wisdom is that the Bill of Rights was intended to constrain only the federal govemment, not private parties. See Jack Goldsmith & Daryl Levinson, Law for States: International Law, Constitutional Law, Public Law, 122 HARV, L, REV, 1791, 1853 (2009) ("Many of the structural provisions of the Constitution and the Bill of Rights were designed to constrain the self-serving behavior of federal officials , , , , " ) , 21, See, e.g., Dave Hendricks, Palm Scans Called Next Step for IDs, WASH,'TIMES, Oct, 11, 2008, http://www,washingtontimes,com/news/2008/oct/ll/palm-scans-called-next-step-for-ids/ (discussing how U,S, hospitals are following the lead of Japanese banks in installing palm scanners to combat fraud), 22, John Edward Campbell & Matt Carlson, Panopticon.com: Online Surveillance and the Commodifwation of Privacy, 46 J, OF BROADCASTING & ELECTRONIC MEDIA 586 (2002), 23, Katz V, United States, 389 U,S, 347, 360-61 (1967) (Harlan, J,, concurring).

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waived any privacy rights against the govemment listening to them.'^'' But, the Court subsequently ruled that the telephone toll information, meaning the numbers dialed and kept as part of a phone bill, are not subject to the warrant requirement on the grounds that there is no cognizable constitutional privacy interest in numbers dialed.^^ The Court's view was rejected in part by Congress which passed rules goveming the use of "trap and trace" devices and pen registers as well as other transactional data albeit at a lower standard.^^ And, recently, a federal court hand-picked by the Chief Justice of the Supreme Court has permitted Americans' conversations to be collected by the govemment without a warrant, based on a "reasonableness" theory.^^ These mlings, some incorrect in my view, are discussed below. B. Two ofthe Views ofthe Fourth Amendment and Electronic Surveillance: Warrants Versus Reasonableness L Warrants to Protect Against "the Uninvited Ear. "Almost a century ago, before telephones were a widely available communication necessity, a narrow-minded majority of the Supreme Court ruled that the Fourth Amendment's protections for "persons, houses, papers, and effects" was not intended to give any protection to an American's phone calls from warrantless eavesdropping.'^^ It was not until 1967 that the Supreme Court,
24, See id. at 352 ("One who occupies [a telephone booth], shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world,"), 25, Smith V, Maryland, 442 U,S, 735, 742 (1979), 26, See Electronic Communications Privacy Act of 1986, Pub, L, No, 99-508, 100 Stat, 1868 (codified as amended at 18 U,S,C, 3121 (2006)) (requiring warrants for pen registers and trace and trap devices); Froomkin, supra note 3, at 1522 (discussing the small number of statutes that place limits on the distribution of "transactional data" including the Fair Credit Reporting Act and the Cable Communications Privacy Act), 27, See infra section I(B)(2), 28, Olmstead v. United States, 277 U,S, 438 (1928), In this pernicious decision from the prohibition era. Chief Justice William H, Taft argued that phone calls did not deserve the same protection as sealed letters under the Fourth Amendment, asserting: The amendment does not forbid what was done here: There was no searching. There was no seizure. The evidence was secured by the use ofthe sense of hearing and that only. There was no entry ofthe houses or offices ofthe defendants. By the invention of the telephone 50 years ago, and its applieatiori for the purpose of extending communications, one can talk with another at a far distant place. The language of the amendment cannot be extended and expanded to include telephone wires, reaching to the whole world from the defendant's house or office. The intervening wires are not part of his house or office, any more than are the highways along whieh they are stretched. Id. at 464-65, Such arguments and similar ones have been resurrected by those attempting to rationalize warrantless govemment access to wireless and communications for national security purposes, along with other neo-conservative attempts to reassert the notion that the Fourth Amendment should only protect property or in essence physieal searches of one's home. See Shafer V, South Carolina, 532 U,S, 36, 55 (2001) (Scalia, J,, dissenting) (defining the Fourth Amendment as only protecting "persons, houses, papers, and effects" and distinguishing that from a privacy right emanating from penumbras ofthe Constitution); Andrei Marmor, The Immortality ofTextualism, 38

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under the leadership of Chief Justice Earl Warren, corrected this severely cramped interpretation of the Fourth Amendment that had left Americans' telephone conversations constitutionally vulnerable to warrantless surveillance by the government.^' In Katz v. United States^'^ the Court ruled that the Fourth Amendment required the govemment to obtain a search warrant before wiretapping an American's conversations.^' The Court noted that "[t]he premise that property interests control the right of the Govemment to search and seize has been discredited" and thus physical trespass was not required for a search to count under the Fourth Amendment; "[t]o read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication."^^ Congress responded to the Supreme Court's Katz decision and Berger v. New York^^ decided the same term, by creating new rules to govern the issuance of warrants for electronic surveillance in the United States in the Wiretap Act.^'' These new rules, however, included a statutory carve-out stating that "[njothing contained in this chapter or in section 605 of the Communications Act of 1934 (48 Stat. 1143; 47 U.S.C. 605) shall limit the constitutional power of the President . . . to obtain foreign intelligence information deemed essential to the security of the United ^^

LOY. L.A. L. REV. 2063, 2065 (2005) (putting Sealia in a group of neo-conservative thinkers); cf Harvery A. Silvergate & Philip G. Cormier, Old Wine in New Bottles: Cyberspace and the Criminal Law, B. B. J., May/June 1997, at 12-13 (noting that, traditionally, computer communications have frightened the "old order" and this partially caused the Supreme Court's slow recognition of the Fourth Amendment's reach beyond physical papers and effects). 29. See Katz v. United States, 389 U.S. 347, 359 (1967) (holding that the surveillance in question did not pass the scrutiny required by the Fourth Amendment). 30. Id. 31. Id. This case involved a challenge to govemment eavesdropping on a man making a call in a public phone booth, a device that now seems like little more than a quaint literary device to aid in the transformation of Superman. The govemment argued that the defendant did not deserve privacy in this public space as he could be observed entering the booth, but the Court reasoned, [W]hat he sought to exclude when he entered the booth was not the intruding eyeit was the uninvited ear. He did not shed his right to do so simply because he made his calls from a place where he might be seen. No less than an individual in a business office, in a friend's apartment, or in a taxicab, a person in a telephone booth may rely upon the protection of the Fourth Amendment. One who occupies it, shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world. Id. at 352 (intemal citations omitted). In so reasoning, the Court overruled Olmstead's deeply flawed analysis. 32. Id. at 353; see also Silverman v. United States, 365 U.S. 505, 511 (1961) (holding that the Fourth Amendment's warrant requirement applies to the recording of the spoken word even if overheard without any "technical trespass under the local property law"). 33. Berger v. New York, 388 U.S. 41 (1967). 34. The Wiretap Act was passed as Title III of the Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, 2510-2519, 82 Stat. 212, 212-25 (codified as amended at 18 U.S.C. 2510-2522(2006)). 35. Id. 2511(3) (repealed by Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95511 201(c), 92 Stat. 1797). Pub. L. No. 90-351, 201(b) changed 18 U.S.C. 2511(2) to read

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According to the declassified McMillan Memo (the Justice Department's 1976 intemal memoranda on the MINARET program), in order to "assure that NSA's operations would not be affected by the legislation, NSA General Counsel participated in the drafting of 18 U.S.C. 2511(3), which was incorporated" in the 1968 Act.^* Secretly, after the Wiretap Act passed, the NSA General Counsel reported internally that the effect of this "presidential exception" was "to remove any doubt as to the legality of the SIGINT and COMSEC activities of the Executive Branch of the Government:"" [The language] preclude[d] an interpretation that the prohibitions against wiretapping or electronic surveillance techniques in other law applies to SIGINT and COMSEC activities of the federal government. Wiretapping and electronic surveillance techniques, are, therefore, legally recognized as means for the federal govemment to acquire foreign intelligence information and to monitor U.S. classified communications to assess their protection against exploitation by foreign intelligence activities.^^ This exemption from the Wiretap Act was subsequently repealed by FISA." The NSA's involvement in drafting the exemption is not generally known, and it was not public at the time that the Supreme Court took up a case challenging the Nixon Administration's warrantless wiretapping of Americans under a claim of national security necessity, before FISA was enacted or even envisioned.'*"

[n]othing contained in this chapter, or section 605 of the Communications Act of 1934, shall be deemed to affect the acquisition by the United States Govemment of foreign intelligence infonnation from intemationai or foreign communications by means other than electronic surveillance , , , and procedures in this chapter and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance , ,, and the interception of domestic wire and oral communications may be conducted, 36, MCMILLAN, ,sMpra note 13, at 85, 37, Id. COMSEC, as distinct from SIGINT, refers to communications security to protect information transmitted by the Department of Defense via special equipment or encryption. See James E, Meason, Military Intelligence and the American Citizen, 12 HARV, J, L, & PUB, POL'Y 541, 542 n,3, 549 n,37 (1989) (denning SIGINT as the intelligence discipline focusing on interception, processing, and analysis of intercepted-signals information and COMSEC as the NSA program aimed at preventing unauthorized access, disclosure, acquisition, manipulation, modification, or loss of key govemment information while it is being transmitted), 38, MCMILLAN, supra note 13, at 85, The McMillan Memo also notes that: "NSA Counsel sought, in his initially proposed draft of U,S,C, 2511(3), to insure that no information obtained in the exercise of such Presidential powers 'shall be received in evidence in any judicial or administrative proceeding,' This proposal was substantially diluted in the statute, as passed, and was essentially nullified by the enactment of 18 U,S,C, 3504 on October 15, 1970," Id. at 85-86 (intemal citations omitted), 39, Wiretap Act 2511(3) (repealed by FISA, 201(c)), 40, See MCMILLAN, supra note 13, at 85, This report was confidential from the date of its completion in 1976 until 1982 when it was released pursuant to a Freedom of Information Act request, but it has not been previously re-examined in light of the claims about the PP,

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In that decision, known as the Keith case. President Nixon's Attomey General John Mitchell had authorized warrantless wiretaps under another exception written into 2511(3) ofthe Wiretap Act: nothing in this Act shall "limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Govemment by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government."'" The Supreme Court unanimously ruled that this provision was unconstitutional and reaffirmed the vitality ofthe warrant clause, stating: Though the Fourth Amendment speaks broadly of "unreasonable searches and seizures," the definition of "reasonableness" tums, at least in part, on the more specific commands of the warrant clause. Some have argued that "[t]he relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable." This view, however, overlooks the second clause of the Amendment. The warrant clause of the Fourth Amendment is not dead language."*^ Specifically, the Court declared that "Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillances may be conducted solely within the discretion ofthe Executive Branch."''^ The Court added that "[t]he Fourth Amendment does not contemplate the executive officers of Govemment as neutral and disinterested magistrates.... 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."'"* , The Court did note that the question of foreign intelligence surveillancethe other part ofthe old 2511(3) as opposed to the domestic national security surveillancewas not at issue in that case.'*' That is, there was no demonstration of collaboration between foreign powers and the Americans who were subject to warrantless wiretaps.''* This observation this dictahas been relied on by some to suggest that the Court would not have required a warrant had a case involving foreign intelligence come

41, Wiretap Act 2511(3), 42, United States v, U,S, Dist, Court {Keith), 407 U,S, 297, 315 (1972) (quoting United States V, Rabinowitz, 339 U,S, 56, 66 (1950)), 43, t, at 316-17, 44, M at 317 (citation omitted), 45, Id. at 340-41 ("It is apparent that therre is nothing whatsoever in this affidavit suggesting that the surveillance was undertaken within the first branch of the 2511(3) exception, that is, to protect against foreign attack, to gather foreign intelligenee or to protect national security information,"), 46, W, at309n,8.

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before it."*^ But, it is not unusual for the Court to indicate what it is not ruling on, which is by definition not a ruling.''^ In fact, other declassified materials from the era indicate that a key reason the Ford Administration decided to negotiate with Congress about FISA was its fear of a broad Supreme Court ruling in favor of warrants for foreign intelligence gathering that intercepts Americans' communications. This concem likely arose from Keith's reasoning that Americans' Fourth Amendment freedoms cannot be guaranteed if surveillance was conducted solely within the discretion of the Executive Branch. And the Ford Administration had much to fear on this point because in the six years between the Court's ruling in the Keith case and the passage of FISA, Congress had conducted extensive investigations into foreign intelligence surveillance practices and documented innumerable violations of Americans' rights.'' Indeed, shortly before FISA was passed, the D.C. Circuit, sitting en bane, ruled in favor of a warrant requirement in a case involving warrantless surveillance based on a foreign intelligence rationale.^" That case, the Zweibon case, has been treated by proponents of warrantless surveillance as the outlier in requiring a warrant for foreign intelligence-related surveillance that involves Americans, but that view ignores the history of the situation. The Zweibon case's historical context is very relevantthe decision was issued in June 1975, after Seymour Hersh's front-page New York Times story exposing Project MINARET's extensive govemment spying on Americans.^' And the decision was issued after the Senate had authorized a special committee led by Republican Frank Church to investigate these revelations and the CIA's other secret activities known as "the family jewels."^^ Starting

47, See, e.g.. United States v, Truong Dinh Hung, 629 F,2d 908, 913 (4th Cir, 1980) (asserting that "[t]he needs of the executive are so compelling in the area of foreign intelligence, unlike the area of domestic security, that a uniform warrant requirement would, following Keith, 'unduly frustrate' the President in carrying out his foreign affairs responsibilities,"), 48, See Hanzen Paper Co, v. Biggins, 507 U,S, 604, 609-10 (1993) (noting that the Court was not deciding based on whether a disparate impact theory of liability is available under the ADEA); Humphrey's Executor v. United States, 295 U,S, 602, 627 (1935) (reasoning that dicta may be followed, but is not binding), 49, .See, e.g., MCMILLAN, ,5u/7ra note 13 (compiling "fmdings with respect to CIA electronic surveillance activities"), 50, See Zweibon v, Mitchell, 516 F,2d 594, 614 (D,C, Cir, 1975) (plurality opinion) (holding that a warrant must be obtained if the subject of surveillance is neither an agent of nor acting in collaboration with a foreign power), 51, See Seymour Hersh, Huge C.I.A. Operation Reported in U.S. Against Antiwar Forces, Other Dissidents in Nixon Years, N,Y, TIMES, Dec, 22 1974, at 1 (reporting that the CIA has illegally been spying on American citizens for years); Intelligence: NSA: Inside the Puzzle Palace,
TIME, NOV, 10, 1975, http://www,time,com/time/magazine/article/0,9171,913671-l,00,html

(describing NSA's role in Project MINARET and the agency's relationship with the CIA and the FBI in the project), 52, Bill Moyers Journal, The Church Committee and FISA (Oct, 26, 2007), http://www,pbs,org/ moyers/joumal/10262007/profile2,html; see also. The National Security Archive, The CIA's

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in January 1975, the Church Committee "interviewed over 800 officials, held 250 executive and 21 public hearings, probing widespread intelligence abuses by the CIA, FBI and NSA"^^ during the first nine months of 1975, after discovering that the secret agency called NSA even existed. Despite Zweibon, opponents of a warrant requirement claim their position is supported by two other cases. United States v. Butenko^'^ and United States v. Brown.^^ However, not only did these cases merely follow the dicta in Keith, but, more importantly, the decisions predate Seymour Hersh's MINARET expos and the Church Committee's investigations demonstrating how foreign intelligence gathering had been used to violate the privacy rights of countless Americans. To rely on those cases is to ignore the historical context almost entirely. Warrant opponents also point to United States v. Truong Dinh Hung,^^ which, despite being issued after FISA codified a warrant requirement in foreign intelligence electronic surveillance on these shores, incoherently suggested that a warrant was not required. In any case, under the facts in Truong which occurred before FISA was passed, a determination of individualized probable cause was made by the Attomey General as a predicate to the electronic surveillance, not a free-floating general claim of reasonableness when gathering foreign intelligence. Although FISA's passage pretermitted a Supreme Court ruling on the warrant requirement, I believe the Court would likely have issued a ruling consistent with Zweibon. This appears especially likely because the Church Committee's revelations demonstrated that the reasoning in Keiththat the Fourth Amendment could not be enforced if left solely to the Executive Branchhad been vindicated, as it were, by the Church investigation. And, because the only new member of the Court between the Keith case and the passage of FISA was Justice John Paul Stevens, " it seems unlikely that a court constituted of nearly the same panel as Keith, post-Church, would change course and accept a blanket foreign intelligence carve out. I think this is a much truer picture ofthe lay ofthe land in the mid- to late-1970s. But for Congress's intervention in passing FISA to mandate warrants for both targeted and untargeted electronic surveillance of Americans on these shores, the Court would likely have reached a similar result to Keith for foreign intelligence gathering that affects Americans.

Family Jewels, http://w\vw,gwu,edu/~nsarchiv/NSAEBB/NSAEBB222/index,htm (providing access and descriptions to documentation related to past transgressions by the CIA), 53, Bill Moyers Journal, supra note 52, 54, United States v, Butenko, 494 F,2d 593 (3d Cir, 1974) (en bane), 55, United States v. Brown, 484 F,2d 418 (5th Cir, 1973), 56, 629 F,2d 908, 916 (4th Cir, 1980), 57, See David Stout & Jeff Zeleny, After Death of a President, Tributes Are Set for Capitol, N,Y, TIMES, Dec, 28, 2006, at Al (noting that Justice Stevens was nominated to the Supreme Court by President Ford in 1975),

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2. The Persistence of the "Reasonableness " Argument.Still, some have tried to ignore Zweibon and the historical momentum to insist that the reasonableness, not a warrant requirement, must be the operative standard in the foreign intelligence area.^^ Two main cases issued within the context of FISA, as opposed to Truong, Brown, and Butenko, have either referenced or taken this position. These decisions were made by three-judge panels handpicked by Chief Justices Rehnquist or Roberts;^^ they included only judges appointed to the federal bench by Republican presidents;*" and they heard oral argument only from the Executive Branch.*' It is very difficult to consider these rulings to be fair in any traditional sense of the word. In the 2002 decision. In re Sealed Case^^ the Court of Review issued a per curiam opinion described by John Yoo*^ as plainly written by the judge for whom he clerked. Judge Laurence Silberman. This case was the very first appeal ever from a decision of the FISA Court and under that court's procedures only the Govemment had the power to appeal because it was the only party to even know how the FISA Court ruled and on what basis.^'' The USA PATRIOT Act had changed the statutory standard in 2001 to permit FISA warrants even if the primary purpose of an intelligence investigation into someone in the United States was for criminal prosecution.*^ In 2002, the Justice Department issued rules on how to handle the change in this standard from a requirement that foreign intelligence be "the purpose" of the surveillance to the new requirement that it only be "a significant purpose,"** meaning that prosecution could be the dominant purpose, with a foreign intelligence hook. The FISA lower court ruled against these new rules in part because of the different standards, in some regards, for probable cause under FISA versus the criminal code (which

58. See, e.g.. In re Sealed Case, 310 F.3d 717, 741-42 (FISA Ct. Rev. 2002) (emphasizing the itnportanee of the reasonableness standard and downplaying the importance of Zweibon); U.S. v. Bin Laden 126 F. Supp. 2d 264, 277, 284-85 (S.D.N.Y. 2000) (highlighting reasonableness as paramount in determining the constitutionality of foreign intelligence activity). 59. See Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95-511, 103, 92 Stat. 1783, 1788 (codified at 50 U.S.C. 1803 (2006)) ("The Chief Justice shall publicly designate three judges. . .from the United States district courts or courts of appeals who together shall have jurisdiction to review denial of any application made under this act."). 60. Bob Egelko, War on Terrorism: Legal Affairs: Spy Court to Review Prosecutors ' Powers; Ashcroft 's Appeal forLooser RulesGoes to Panel, S.F. CHRON., Sept. 1, 2002, at A3. 61. See FISA Amendments Act of 2008, Pub. L. No. 110-261, 122 Stat. 2436, 2452 (to be codified in scattered sections of 50 U.S.C.) ("The Government may file a petition with the Foreign Intelligence Surveillance Court of Review for review of an order. . . .") (emphasis added); In re Sealed Case, 310 F.3d at 717 ("Govemment appealed from order of the Foreign Intelligence Surveillance Court"). 62. 310F.3dat7l7. 63. At the time, Yoo was working for the Office of Legal Counsel on these issues. 64. In re Sealed Case, 310 F.3d at 719. 65. USA PATRIOT Act of 2001, Pub. L. No. 107-56, 218, 115 Stat. 272, 291 (codified at 8 U.S.C. 1823(2006)).
66. OFFICE OF THE ATT'Y GEN., GUIDELINES FOR DOMESTIC FBI OPERATIONS 16-24 (2008).

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might permit an end run around traditional probable cause).*^ The FISA Court of Review took up this case at the request of the Justice Department.*^ The Bush Administration in essence had changed the FISA rules based upon Yoo's secret 2001 OLC analysis, where he asserted that the administration was free to lower the standard for intelligence collection, despite the mandate of statute. However, Yoo's analysis went beyond a simple determination of the administration's ability to bypass or alter FISA's requirements, and, under an expansive recasting of the Fourth Amendment, argued that the President did not really need to go through FISA's warrant requirements at all, and could even conduct a warrantless search as long as it was "reasonable."*' Yoo wrote that "a warrantless search can be constitutional 'when special needs, beyond the normal need of law enforcement, make the warrant and probable-cause requirement impracticable." (Subsequently, Yoo's analysis of the requirements of FISA and the notion of unlimited executive power with regard to the PP was considered so severely flawed that it had to be withdrawn by the Justice Department.^' The Bush White House's insistence on following his analysis of the PP's legality even after serious intemal legal questions were raised about it almost provoked the resignation of the Acting Attomey General, James Comey, and others.)^^ At the time of the one-sided oral argument to the FISA Court of Review in 2002, however, these problems were not known. And it seems likely not all of the govemment attomeys involved in the appeal over the Patriot Act amendments to FISA knew in 2002 that Yoo had secretly taken a Hamiltonian, king-like, view of executive power and had "authorized" activities, on behalf of OLC and the Justice Department, outside of FISA's exclusive procedures based on results-oriented rationales that minimized statutory requirements and any case law to the contrary. At least

67, See In re Sealed Case, 310 F,3d at 737 ("The FISA court expressed concem that unless FISA were 'construed' in the fashion that it did, the govemment could use a FISA order as an improper substitute for an ordinary criminal warrant under Title III,"), 68, See Alison Buxton, In re Sealed Case,- Security and the Culture of Distrust, 29 OKLA, CITY, U, L, REV, 917, 922 (2004) ("The Justice Department appealed two FISA Court orders authorizing electronic surveillance on the ground that the court improperly imposed restrictions on the govemment's foreign-intelligence gathering procedures,"), 69, See SHANE HARRIS, THE WATCHERS: THE RISE OF AMERICA'S SURVEILLANCE STATE 167-69 (2010) (discussing how Yoo went beyond the question posed and tried to equate warrantless wiretapping of Americans with a school district's random drug testing), 70, Id
71, See OFFICE OF INSPECTOR GEN,, DEP'T OF DBF, ET AL,. UNCLASSIFIED REPORT ON THE

PRESIDENT'S SURVEILLANCE PROGRAM U (2009) ("[D]ecieneies in Yoo's memorandum

identified by his successors in the Office of Legal Counsel , , , later became critical to DOJ's decision to reassess the legality of the [PP],"),
72, See JAMES BAMFORD, THE SHADOW FACTORY: THE ULTRA-SECRET NSA FROM 9/11 TO

THE EAVESDROPPING ON AMERICA 284-85 (2008) (indicating that James Comey and several other DOJ officials intended to resign and quoting Comey as saying, "I didn't believe that as the chief law enforcement officer in the country I could stay when they had , , , done something , , , I could find no legal basis for").

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two of the men in the room at the oral argument did know the administration had concluded it was not even bound by FISA's legal requirements: John Yoo and Cheney's right-hand man, David Addington. And, at that argument, Solicitor General Ted Olson argued, among other things, that warrants were not required for foreign intelligence gathering, despite FISA's command, even though that was not germane to the issues in the case.^^ Judge Silberman took the lead in oral argument in this case and, according to Yoo, the opinion was written in his voice; it included dicta recasting legal history and arguing that a reasonableness test should govem this area, not warrants. At the one-sided oral argument. Judge Silberman argued that the constitutional test was reasonableness, not a warrant, and "the key to the reasonableness of any search is the exterior threat," which is not what Congress determined in FISA nor what the DC Circuit (the court to which President Reagan appointed him) had last ruled on this issue in Zweibon nor even how a reasonable search had been evaluated generally in other cases (with reference to one's reasonable expectations of privacy).^"* Judge Silberman practically led DOJ at the argument suggesting "[t]here are two ways to look at this. One can say this is not covered by the Constitution altogether because it's inherent executive power. The second way is to say, well, it's a reasonable search because the threat is so great even if it was constitutionally covered."^^ Remember, this was the very first decision to ever be issued by the FISA Court of Review.'* These may seem like unusual positions for a judge to take sitting on a panel given authority to handle appeals arising from the very statute Judge Silberman was arguing for eviscerating. However,- it must be noted that Judge Silberman was handpicked for this special court by Chief Justice Rehnquist, whose record demonstrated significant hostility to civil liberties. And Judge Silberman had a particularly unusual distinctionhe had actually testified against the passage of FISA, arguing that warrants should not be

73, Id. 74, See U,S, v, Belfield, 692 F,2d 141, 145 n,15 (D,C, Cir, 1982) (noting that in a prior D,C, Cireuit decision "the plurality suggested in dicta that [warrantless surveillance of Americans to gather foreign intelligence] might be unconstitutional"); Transcript of Hearing at 73, In re Sealed Case, 310 F,3d 717 (FISA Ct, Rev, 2002) (No, 02-001) available at http://w2,eff,org/Privacy/ Surveillance/FISCR/20030128-fiscr-transcript,pdf; see also 50 U,S,C, 1804 (1978) (amended 2008) (requiring that a federal officer receive approval from both the Attomey General and a Foreign Intelligence Surveillance judge before he can obtain a court order authorizing foreign intelligenee electronic surveillance);, 75, Transcript of Hearing, supra note 78, at 73-74, 76, In the prior two decades the Justice Department had never appealed a case from the FISA court, and only DOJ had the statutory authority to appeal because no other parties were permitted to appear before the FISA court because it mctioned like a magistrate judge issuing search warrants in camera. See Foreign Intelligence Surveillance Act of 1978, Pub, L, No, 95-511, 106(f), 92 Stat, 1783, 1794 (codified at 50 U,S,C, 1806(f) (2006)) (prescribing ex parte and in camera review of materials relating to electronic surveillance); In re Sealed Case, 310 F,3d at 719 ("This is the first appeal from the Foreign Intelligence Surveillance Court to the Court of Review since the passage of the Foreign Intelligenee Surveillance Act, ,, in 1978,"),

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required and that the courts were not fit to adjudicate cases involving foreign intelligence.^^ To suggest that he and two other Reagan appointees got the Fourth Amendment analysis right in this case's dicta is more than I can countenance. (Judge Silberman, by the way, was subsequently awarded the Presidential Medal of Honor by President George W. Bush in 2008^^ (the judge had also been appointed by Bush to serve on the Robb Commission)). The second major case^" in which reasonableness was discussed, and the only other decision ever issued by the FISA Court of Review, arose in a challenge by an Intemet service provider (ISP) to directives issued by the govemment pursuant to the 2008 FISA Amendments Act.^' These amendments undermined the warrant requirements for electronic surveillance on these shores that had been FISA's raison d'tre.^^ This case again involved a special appellate review panel made up entirely by judges put on the federal bench by Republican presidents.^^ This panel was not randomly chosen as is the case in other intermediate appellate bodies in the Article III federal court system;^"* this panel was handpicked by the right-wing Chief

77, See Foreign Intelligence Electronic Surveillance: Hearings Before the Subcomm. on Legislation of the Permanent Select Comm. on Intelligence, 95th Cong, 217 (1978) (statement of Laurence Silberman), available at http://www,cnss,org/fisa011078,pdf (declaring that FISA was "an enormous and fundamental mistake which the Congress and the American people would have reason to regret"), 78, James Gerstenzang, Silberman, Pace Receive Bush Awards, L,A, TIMES, June 12, 2008, atA16,
79, See STEPHANIE SMITH, CONG, RESEARCH SERV,, COMMISSION ON THE INTELLIGENCE CAPABILITIES OF THE UNITED STATES REGARDING WEAPONS OF MASS DESTRUCTION:

ESTABLISHMENT AND COMPOSITION 4 (2006) (naming Judge Laurence H, Silberman as cochairperson of the commission), 80, In re Directives Pursuant to Section 105B of the Foreign Intelligence Surveillance Act {In re Directives), 551 F,3d 1004 (FISA Ct, Rev, 2008), 81, FISA Amendments Act of 2008, Pub, L, No, 110-261, 122 Stat, 2436 (to be codified in scattered sections of 50 U,S,C,), 82, See In re Directives, 551 F,3d at 1006 ("Subject to certain conditions, the [amendments] allowed the govemment to conduct warrantless foreign intelligence surveillance on targets (including United States persons) 'reasonably believed' to be located outside the United States," (citation omitted)), 83, The special appellate review panel consisted of Chief Judge Selya and Senior Circuit Judges Arnold and Winter, Lyle Denniston, Intelligence Wiretap Power Upheld, SCOTUSBLOG (Jan, 15, 2009, 21:38 EST), http://www,scotusblog,com. Chief Judge Selya was nominated by President Ronald Reagan to the First Circuit, Federal Judicial Center, Biographical Directory of Federal Judges: Selya, Bruce Marshall, http://www,fjc,gov/servlet/nGetInfo?jid=2140&cid=999&ctype= na&instate=na. Senior Circuit Judge Arnold was nominated to the Eighth Circuit by President George H,W, Bush, Federal Judicial Center, Biographical Directory of Federal Judges: Arnold, Morris Sheppard, http://www,fic,gov/servlet/nGetInfo?jid=60&cid=999&ctype=na&instate=na, Senior Circuit Judge Winter was nominated to the Second Circuit by President Ronald Reagan, Federal Judicial Center, Biographical Directory of Federal Judges: Winter, Ralph K, Jr,, http://www,fjc,gov/servlet/nGetInfo?jid=2621&cid=999&ctype=nai&instate=na,
84, See ELIZABETH B, BAZAN, CONG, RESEARCH SERV,, THE U,S, FOREIGN INTELLIGENCE SURVEILLANCE COURT AND THE U,S, FOREIGN INTELLIGENCE SURVEILLANCE COURT OF REVIEW:

AN OVERVIEW 5 (2007) ("The Court of Review is composed of three judges publicly designated by the Chief Justice from the United States district courts or courts of appeals,").

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Justices of the U.S. Supreme Court, John Roberts and his predecessor Rehnquist.^^ In fact, the FISA Court of Review is the only court in the history of the United States, it seems, that has been constituted entirely of judges appointed to the federal bench by a single political party, at least according to the public record, since its statutory creation in 1978 over three decades ago. That should give anyone pause. Setting this unusual partisan distinction for a judicial body aside, the FISA Court of Review upheld a directive issued to an ISP that argued that there was no foreign intelligence exception to the warrant requirement in a challenge to new powers granted by the FISA Amendments Act (FAA).^^ The FISA Court of Review, however, bootstrapped such a requirement into its decisions in part through reliance on Judge Silberman's dictaeven though the panel acknowledged that the 2002 decision did not so rule stating that the interpretation of the decision as implicitly recognizing such an exception was "plausible."^^ The appellate panel then drew a parallel to the so-called special needs cases (cases from the Rehnquist Court upholding random drug testing of minors and railway workers), outside the foreign intelligence context, as demonstrating rationales for searches to be govemed by reasonableness, not warrants.^^ Then, in applying a reasonableness test, the panel found that national security is of the "highest order of magnitude."^^ It also dismissed the idea that probable cause, prior judicial review, and particularity were essential to determining whether a search is reasonable, and also discounted the individualized determination that was central in the Truong case.^" Instead, the panel found that the matrix of the FAA rules^broad targeting procedures, minimization procedures, the requirement that a significant purpose of the collection be to gather foreign intelligence, intemal mies relating the Executive Order 12333 and other classified informationadded up to satisfying a Fourth Amendment reasonableness test as reconceived by the Court of Review.^' The panel refused to entertain a facial challenge to
85, See supra note 5, 86, See In re Directives, 551 F,3d at 1011, 1012, 1010-12 (rejecting the ISP petitioner's argument that there is no foreign intelligence warrant exception by stating "[t]hat dog will not hunt," and holding that such an exception exists "when surveillance is conducted to obtain foreign intelligence for national security purposes and is directed against foreign powers or agents of foreign powers reasonably believed to be located outside the United States"), 87, See id. at 1010 ("While the Sealed Ca^e court avoided an express holding that a foreign intelligence exception exists by assuming arguendo that whether or not the warrant requirements were met, the statute could survive on reasonableness grounds, we believe that the FISC's reading ofthat decision is plausible," (citation omitted)), 88, See id. at 1010-11 (noting that "special needs" cases dispensed with the general warrant requirement when "the purpose behind the govemmental action went beyond routine law enforcement and insisting upon a warrant would materially interfere with the accomplishment of that purpose"), 89, Id. at 1012, 90, Id. at 1012-13, 91, W, at 1013,

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the FAA, rejected an "as-applied" challenge, and, behaving ostrich-like in the face of the great weight of history showing that such powers could be abused, refiised to consider any possibility of bad faith.'.^ The result in the FAA challenge demonstrates the inherent flaw in the reasonableness "test." In the national security area, the test is weighted almost entirely in the government's favor and constitutes deference to whatever procedures the govemment chooses, even if they are nothing like what would be required by a warrant. This renders them, as a practical matter, almost impossible to successfiilly challenge, even if in other settings the government had not assiduously asserted that the overgrown judicial fiction of "state secrets" was an impediment to an adjudication on the merits of challenges to these policies by civil liberties and privacy groups and the citizens they represent. Given the expanse of time since the Keith case and the right-wing revolution in Supreme Court interpretation since then, however, it is perhaps not unpredictable that such a one-sided judicial panel would issue such a far-reaching ruling and never question whether such a specially constituted panel as themselves had the constitutional authority to do so. I do think it fair to say that the Fourth Amendment has been under legal assault for much of the period since KeithP The bottom line is that Republican presidents appointed eleven Supreme Court Justices in a row (and the bulk of lower court judges),'" and the elections that led to these appointments had all included "law and order" campaigns.'^ It was no surprise that these judicial appointees embraced the erosion of many rights.'* What emerged from the counterrevolution on the Court over the last three decades has been a brick-by-brick curtailing of the domain of warrants primarily through limiting them to wiretaps of conversations or searches of homes and a few other situations, subject to a variety of exceptions. And, what was not covered by the warrant requirement was either written out of

92. W. at 1014-15. 93. See supra text accompanying notes 57-59, 61-63 (summarizing cases that have narrowed the central holding of Keith). 94. See David A. Strauss & Cass R. Sunstein, The Senate, the Constitution, and the Confirmation Process, 101 YALE L.J. 1491, 1506 (1992) (noting that Republican Presidents had eleven consecutive appointments to the Supreme Court). 95. See Barry C. Feld, The Transformation of the Juvenile Court Part II: Race and the "Crack Down" on Youth Crime, 84 MINN. L. REV. 327, 340-50 (1999) (describing the general trend of Republicans to run law and order campaigns between the 1960s and 1980s). 96. That is, during the "curtilage" of the Warren Courtat the beginning of the Burger Court when most of the members had served on the Warren Court and had a strong commitment to enforcing the warrant requirement precedentthe nation's highest court had responded unanimously to Nixon's claim of a right to warrantless domestic security threats, i.e., American citizens, in spite of the requirements of the Fourth Amendment. See generally United States v. U.S. Dist. Court (Keith), 407 U.S. 297 (1972) (indicating that no Justice of the Supreme Court agreed with the argument made by the United States in its brief on the merits that a warrant exception applied for warrantless searches conducted by the President in the investigation of domestic-security threats).

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the Fourth Amendment's scope or govemed by whether a majority of the Court believed the person challenging the search had a "reasonable expectation of privacy" under the Amendment or, as articulated in the second FISA Court of Review decision, whether the govemment's intemal procedures for warrantless access to the contents of American communications were reasonable when measured against a paramount threat. Now, with this foundation of the development or devolution of the case law, let us tum back to Project MINARET to see what light it sheds on the current issues at stake. II. What Project MINARET's Watch-Listing of Americans Reveals About Past (and Present) Analysis of "Incidentally" Intercepted Conversations

As noted above, in December 1974, the New York Times published a front-page story by Seymour Hersh with the headline "Huge C.I.A. Operation Reported in U.S. Against Anti-War Forces," alleging that the Nixon Administration had been engaged in a program to spy on Americans' communications, shocking Congress and the American people.'^ Three decades and a year later almost to the day, the New York Times published a similar story, "Bush Lets U.S. Spy on Callers Without Courts," alleging that the Bush Administration was spying on American communications despite the legal reforms and warrant requirements Congress had passed in FISA.'^ These reforms had been relied upon by the American people, in the wake of surveillance activities revealed by Hersh and the Church Committee. But, the parallels do not begin or end with the headlines. There were also calls for criminal prosecution of CIA officers as a result of their involvement in spying on Americans' communications and other excesses under the guise of national security or foreign policy needs.^' Similarly, many voices have called for criminal investigations, with subpoena power, to examine key decisions made within the Bush Administration regarding not just surveillance activities affecting Americans but also the torture of foreign suspects, among other highly controversial activities. ""' And, in another parallel, the Justice Department officials in the succeeding administrationsthose of President Gerald Ford and President Barack Obamadeclined prosecution."" But, as interesting and troubling as
97, Hersh, supra note 53, at 1, 98, James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N,Y, TIMES, Dec, 16, 2005, atAl, 99, See Dems Push for Look into Bush-era Policies, CHARLESTON GAZETTE, July 13, 2009, at A2 (stating that some Democrats were pushing for investigations into programs launched by the Bush Administration), 100, See id. (reporting "that Attomey General Eric Holder was contemplating opening a criminal investigation into CIA torture"), 101, See MCMILLAN, supra note 13, at 171 (declining prosecution during the Ford Administration); Steven Thomma & Marisa Taylor, Obama Reverses Stand on Prosecution in

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these parallels are, I think the more surprising element is what a close examination of the declassified Ford-era memo reveals about past surveillance and what that means for the present, particularly because it contains little-noticed descriptions of the technology of surveillance that bear on the most recent debates about Americans' communications and privacy. A. The Danger to Privacy and Liberty of Dividing the World of Communications in Two, Within and Without the United States

Twenty-four years ago, Dougald McMillan wrote a secret Justice Department report declining to prosecute officers at the CIA for their role in the electronic surveillance of Americans' intemational communications as part of President Richard M. Nixon's Project MINARET that Hersh had revealed.'"^ That program involved a presidential directive to the NSA to use watch lists to search through the pool of information it was collecting as part of its SIGINT operations,'"^ which were focused on intemational communications that were plucked from the sky via radio signals and receivers as well as communications that were gathered via Operation S H A M R O C K ' S program of acquiring almost all intemational telegrams into or out ofthe United States and analyzing them.'""* As detailed below, the NSA had divided the world in two in terms of electronic communications, which basically distinguished between communications with at least one foreign terminal and communications that did not have at least one end outside the United States.'"^ This simple but false duality had the effect of treating Americans' personal intemational communications the same as purely foreign intemational communications that were not between Americans, at least at the point of acquisition and ostensibly for the purpose of analysis. I think the better legal analysis would have been three categories of communications: Americans' domestic communications, Americans' intemational communications, and communications not involving Americans. This could have been reduced to a dualism: communications initiated or intended to be received by a person in the United States and all other communications as a legal matter, setting aside the technology. Since that time, the NSA and its lobbyists and proxies have made a dramatic shift, based in part on the rise of the Intemet and based in part on desire, that the world should no longer be divided in two (domestic and not

Terror Investigations, KAN, CITY STAR, Apr, 22, 2009, at Al ("Obama repeated his stand that CIA officers should be immune from criminal charges for their work interrogating suspects , , , ,"), 102, MCMILLAN, supra note 13, at 171, 103, See id. at 26-28 (describing Project MINARET and the NSA watch lists), 104, See id. at 33-34 (describing Operation SHAMROCK), 105, See id. at 26-27 (discussing the types of communications monitored under Project MINARET),

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purely domestic), at least at the point of acquisition.'^ And, part of their claim was also grounded in the implicit argument that once the congressional investigations ended and the dust settled in 1978, the NSA went hack to its business of using its big ears to acquire and analyze the intemational communications of Americans via satellites that received radio signals. In the aftermath of the 2005 New York Times story, the Administration floated a bunch of legal rationales and policy arguments for the PP.'"' It then decided to play offense and argue in essence that what had been done was always permitted, or at least intended to be permitted. It also argued that the advent of the Intemet, with its reliance on digital communications (optical/light rather than radio wave), had rendered the agency nearly deaf and so the law needed to be "modemized" to fix that.'^ The first argument is difficult to square, however, with the idea that something did change in the acquisition and analysis policies that did result in President Bush issuing new "directives" to the NSA related to Americans. These directives pertained not just to the claim if al Qaeda calls you, we want to know why. They also applied to some aspects affecting Americans' communications that were so new and worrisome, and on such flimsy legal footing, that the acting Attomey General and the Director of the Federal Bureau of Investigation in the Bush Administration almost resigned when the Bush Administration attempted to proceed over new Justice Department objections.'"' It is also quite apparent from looking at the scope of the FISA Amendments Act that, as a statutory matter, the scope of the new surveillance authority is about much more than al Qaeda and gives the NSA much more authority than it had under what Ben Powell, General Counsel to the Director of National Intelligence, dubbed "classic FISA."" And, I

106, See, e.g., Charlie Savage & James Risen, Bush-era Wiretapping Program Is Ruled Illegal; Judge Rejects 'State Secrets' Argument, BOSTON GLOBE, Apr, 1, 2010, http://www,boston,com/ news/nation/washington/articles/2010/04/01 /bush_era_wiretapping_program_is_ruled_illegal (explaining that the NSA defended its surveillance of domestic communications on the grounds that the President's powers pennit overriding FISA), 107, See Risen & Lichtblau, supra note 103 (recounting some of President Bush's constitutional, legislative, and policy rationales for the PP), 108, See id. ("[T]he existing Foreign Intelligence Surveillance Act was not written for an age of modem terrorism,"), 109, See Joel K, Goldstein, The Contemporary Presidency: Cheney, Vice Presidential Power and the War on Terror, 40 PRESIDENTIAL STUD, Q, 102, 118 (2010) (detailing meetings with James Comey, acting Attomey General, and Robert Mueller, FBI director, after teaming of massive potential resignations from the Justice Department), 110, See, e.g.. Reauthorizing the USA PATRIOT Act: Ensuring Liberty and Security: Washington, Hearing on H.R. 3845 Before the S. Comm. on the Judiciary, 111th Cong, (2009) (statement of Lisa Graves, Executive Director, Center for Media and Democracy) (noting that, while under classic FISA, the govemment had to identify the device to be tapped, under the 2008 amendments, the govemment is not required to disclose to the court the "facility" where the acquisition of electronic information takes place, let alone particular phones or intemet accounts, for surveillance that meets the Act's test).

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believe it gives the NSA a scale of access, or potential access, to American communications that absolutely dwarfs what was available for analysis under Project MINARET, especially with the advent ofthe Intemet. Accordingly, I believe we need much better protections for the freedoms of individual Americans now that the world of communication at the point of acquisition is no longer divided in two. Let us test this hypothesis. /. The Two Realms of Electronic Communications Under MINARET. The top secret McMillan Memo, which was subsequently declassified, has never been thoroughly (at least publicly) analyzed as part of an assessment of the claims made in the recent scandal involving a presidential directive to the NSA to search through pools of information it was previously acquiring or newly acquiring with the assistance of telecom providers following 9/11. But that memo, taken at face value, illuminates recent claims about the NSA's activities, technology, and mission vis--vis Americans. a. Purely Domestic Communications of Americans.During that Justice Department inquiry into whether CIA agents should be prosecuted for their involvement in the warrantless acquisition of American communications, the NSA itself described the two realms of communications from its vantage point. One part was the domestic communications network, which the NSA described as "contiguous, switched (from wire to cable to microwave) automatic and self-routing. Its wireless component [was a multichannel microwave carrier system capable of carrying up to 2,000 communications on some channels."'" From a layperson's standpoint, what that means is that calls within the United States between people in the United States involved both wired communications (the telephone lines into our homes and businesses, and the cables strung by the side of the road) as well as wireless communications (the beaming of communications from one part of a state to another or across the country, which was accomplished by radio wave relays). To put it more simply, most local calls were transmitted via wires and most long distance or toll calls were transmitted at least in part via radio waves. It may come as a surprise to some that wireless domestic communications were available in the now ancient seeming technology of the 1970s,"^ even though personal wireless phones did not take off until the late 1980s or become a practical necessity until the first decade ofthe 21st century."^ However, after the Supreme Court's decision in the Katz case, Americans believed the Constitution required a warrant to tap into their

111, MCMILLAN, supra note 13, at 131,

113, See id. at 3 (describing the rapid development of wireless communications in the 1980s and 1990s due to advances in the technology of cellular systems).

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phones, regardless of whether some part of their call trayeled via wire or radio signals.""* Indeed, to the ordinary person, the technology used for communicating is largely separate from their liberty and privacy interests in the communication itself Regardless of whether they use a cell phone, landline, Skype, Instant Messaging, or e-mail, regular Americans assume that their communications with their friends, family, lovers, or colleagues are privatewhether the communication is across town, the state, the nation, or the globeand believe their government would not capture or analyze their communications unless a judge ordered such surveillance based on them doing something wrong. "^ Some may dispute whether such an expectation of privacy is reasonable, because radio signals and Intemet communications may be receivable, but the question is not properly understood to be whether the govemment could intercept Americans' communications, but whether it would intercept them without a warrant predicated on probable cause of suspected wrongdoing. The question, at its heart, is about the relationship between the govemment and the govemed or, more properly, between the sovereign people and the govemment that represents them. In the McMillan Memo, the NSA described its discretionary decision to follow the "one-terminal mle" meaning that it voluntarily focused on communications in which at least one terminal to, or at the end of, the communications was outside the United States."^ That is, it had the capacity to capture all radio communications, including purely domestic communications, but it chose not to use some of this capacity based on its decision to adopt the one-terminal mle. This mle relates to its conception of intemational communications, as discussed below. b. "International" Communications, Purely Foreign or Not.The second realm, according to the NSA's description in the McMillan Memo, was the ''international commercial radio telephone communications [to be] transmitted by high-frequency, single or multi-channel telephony which enters the national communications network through what are known as

114. See Katz v. United States, 369 U.S. 347, 353 (1967) (holding that the Fourth Amendment protection from unreasonable search and seizure protects Americans in telephone booths from warrantless wiretaps); see also Deirdre Mulligan, Reasonable Expectations in Electronic Communications: A Critical Perspective on the Electronic Communications Privacy Act, 72 GEO. WASH. L. REV. 1557, 1578 (2004) (arguing that the holding in Smith v. Maryland, 442 U.S. 735 (1979), that individuals do not have a reasonable expectation that the phone numbers they dial are private, is an example of the Supreme Court eroding the "reasonable expectation" prong o Katz in subsequent decisions). 115. See Paul Ham, Warrantless Search and Seizure of E-mail and Methods of Panptica! Prophylaxis, 2008 B.C. INTELL. PROP. & TECH. F. 90801, http:/^ciptf.org/index2.php?option= com_content&do_pdf=l&id=42 (noting that the Katz opinion seems to extend protection to the privacy interests of individuals, as opposed to a particular space or the penetrability ofthat space). 116. MCMILLAN, 5upra note 13, at 81.

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'gateways.'""^ The NSA described these high-frequency radio signals as easily interceptable by, for example, ship-to-shore radios or satellite."^ According to the NSA, such multi-channel transmission could be intercepted with radio receivers and "de-channelled," unless they were encoded by "ciphony equipment" to garble the communications; however, none of the commercial communications carriers used that technology even though some govemments did."^ This description certainly accounts for the NSA's use of satellites and parabolic receivers to intercept these signals and de-channel them to focus on particular channels, such as those used during the Cold War by the Soviet Union. Under this rubric, Americans' intemationai communications were just as vulnerable to acquisition as purely foreign communications involving foreign nationals abroad who do not have the same constitutional rights and interests vis--vis the U.S. govemment. Nevertheless, this picture is incomplete in a variety of ways. Such a depiction does not account for the fact that many intemationai communications did not travel via high-frequency radio.'^ For example, intemationai telegrams, which straddled the historical space between mailed letters in sealed envelopes and e-mail, were called cables because they were transmitted via wire, not via high-frequency radio.'^' As the Church Committee revealed, however, the NSA had been acquiring and analyzing virtually all intemationai telegrams to or from American residents and businesses for decades under the secret Operation SHAMROCK program.'^^ Moreover, the description did not take into account that the telephone companies relied on transatlantic and transpacific cables to transmit significant portions of Americans' intemationai calls to Europe and Asia (although communications to South America relied more heavily on radio signals, transmitted via AT&T's satellites).'^-' Communications within the contiguous land of Europe and Asia, however, were much more similar to that of the domestic United States, with some

117, Id. at 131, 118, Id 119, Id 120, See A SHORT HISTORY OF SUBMARINE CABLES, http://www,iscpc,org/infonnation/ History_of_Cables,htm (noting the weaknesses of high-frequency radio in transmitting intemationally, including a limited capacity and the potential for atmospheric disruptions), 121, See Donald Murray, How Cables Unite the World, in 4 THE WORLD'S WORK: A HISTORY OF OUR TIME, MAY TO OCTOBER 2298, 2299 (Walter Hines Page & Arthur Wilson Page eds,, 1902) (describing the development of a worldwide network of 200,000 miles of submarine cables for the transmission of intemationai telegrams), 122, MCMILLAN, supra note 13, at 33, 123, See A SHORT HISTORY, supra note 126 (describing the burst in demand that followed the 1963 completion of COMPAC, a network of cables that spanned the Atlantic and Pacific Oceans and provided 80 two-way voice circuits).

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communications travelling via wire and some via radio waves, making some of them easily accessible to being captured and de-channeled by the '^' 2. Using the Pool of International Communications Incidentally Collected.The McMillan Memo makes clear that Project MINARET sought to exploit the NSA's technological capacity to obtain information about Americans via analyzing their intemational communications.'^^ According to the NSA, "The primary sources [ofthe infonnation pool] were: (l)the NSA's interception of intemational commercial carrier (ILC) voice and non-voice communications [clause redacted]'^* and (2) copies or tapes of intemational messages ftimished to NSA by U.S. commercial communications carriers in the Shamrock operation."'^^ Elsewhere in the McMillan Memo the pool of communications was described as derived exclusively from these two means of interception: "all MINARET communications apparently had at least one terminal in a foreign country and, excluding SHAMROCK communications, were obtained through the interception of radio portions of intemational communications from sites both within and without the United States."'^^ To be clear, this description does not mean that the NSA could access all intemational communications of Americans, but that all communications that were accessed had been obtained in one of these two ways. 3. How that Pool Was Used by President Nixon.Just six months after taking office. President Nixon directed the NSA to use this pool to search for information on specific Americans, whom he and his allies in the Executive Branch had placed on a watch list.'^' So there can be no ambiguity, here is the precise way the NSA described the scope ofthe project: MINARET (C) is established for the purpose of providing more restrictive control and security of sensitive infonnation derived from communication as processed [redacted] which contain (a) information
124, See, e.g., MCMILLAN, supra note 13, at 130-31 (describing how phone calls were transmitted circa the creation of FISA), 125, See id. at 26 (including "U,S, organizations or individuals engaged in activities which might result in civil disturbances or otherwise subvert the national security" and "[m]ilitary deserters involved in the anti-war movement" in a list of MINARET's targets), 126, Elsewhere in the report this redacted clause is not redacted and is stated as "telex" which was basically a telegram that was transmitted not by wire or radio but by non-aural electronic pulses. See id. at 160 ("MINARET intelligence , , , was obtained incidentally in the course of NSA's intereeption of aural and non-aural (e,g,, telex) intemational communications, and the receipt of GCHQ-acquired telex and ILC cable traffic "), 127, Id. at 26. 128, Wat 160-61, 129, See Robert Bloom & William J, Dunn, The Constitutional Infirmity of Warrantless NSA Surveillance: The Abuse of Presidential Power and the Injury to the Fourth Amendment, 15 WM, & MARY BILL RTS, J, 147, 157 (2006) (noting that from its official inception in 1969, Project Minaret was constitutionally flawed, as it constituted a de facto "watch list" containing the names of as many as 1,600 American citizens, and up to 800 at a given time).

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on foreign govemments, organizations or individuals who are attempting to influence, coordinate or control U.S. organizations or individuals who may foment civil disturbances or otherwise undermine the national security of the U.S. (b) information on U.S. organizations or individuals who are engaged in activities which may result in civil disturbances or otherwise subvert the national security of the U.S. An equally important aspect of MINARET will be to restrict the knowledge that such infonnation is being collected and processed by the National Security Agency. MINARET specifically includes communications concerning individuals or organizations involved in civil disturbances, anti-war movements/demonstrations and military deserters involved in anti-war movements. ' Congress discovered that, as a consequence of this directive, the NSA had about 1,200 American names, mostly persons opposing the Vietnam War, on watch lists provided by other agencies,'^' such as the Bureau, which was then led by FBI Director J. Edgar Hoover.'^^ In its official findings. Congress noted that, for example, communications mentioning the wife of a U.S. Senator had been intercepted and disseminated by the NSA, as were conversations about a concert for peace, a journalist's report from Southeast Asia to his magazine in New York, and even a pro-war activist's invitations to speakers at a rally.'^^ But, Project MINARET's focus was later expanded by President Nixon and his men.'^"* By the beginning of 1971, it was described in an official memorandum between the Department of Defense and the Department of Justicethe scope of the NSA's searching was to obtain "[i]ntelligence bearing on: (1) Criminal activity, including drugs. (2) Foreign Support or foreign basing of subversive activity. (3) Presidential and related protection."'^^ The most significant aspect of this expansion was in the area of analyzing communications between the United States and South America for infonnation relating to President Nixon's war on drugs and drug abuse.'''*

130, MCMILLAN, supra note 13, at 26, 131, S, REP, NO, 94-755, at 746 ( 1976), 132, Id 133, Id. at 750, 134, MCMILLAN, supra note 13, at 26-27, 135, Memorandum to the Secretary of Defense, the Attomey General from Vice Admiral Noel Gayler, Director, National Security Ageney (Jan, 26, 1971), reprinted in Intelligence Activities: Hearings on S. Res. 21 Before the S. Select Comm. to Study Governmental Operations with Respect to Intelligence Activities, 94th Cong, (1976), For a synthesis of these and other key documents obtained by the non-profit group, the National Security Archive, from the Ford Administration's archives, see Electronic Surveillance: From the Cold War to Al-Qaeda, National Security Archive, http://www,gwu,edu/~nsarchiv/NSAEBB/NSAEBB 178/index,htm, 136, See MCMILLAN, supra note 13, at 112 ("The President is intensely interested in using every means at his disposal to stop the intemational narcotics traffic. This includes covert action where appropriate,"). The Nixon Administration had "declared that intemational narcotics control was a major goal of U,S, foreign policy" thus establishing their nexus for these activities. Id. The CIA noted that the White House had specifically tasked G, Gordon Liddy to assist with these efforts

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This nearly three-year aspect of the project involved "the interception of high-frequency radio-telephone (commercially) voice communications between the United States and several South American cities."'" The Church Committee found that almost 500 Americans were focused on as part ofthe drug interdiction elements of this surveillance.'^^ 4. Rationalizing the Analysis of Americans' Private Calls.In 1972, the Supreme Court issued its landmark decision in the Keith case, holding that "Fourth Amendment -eedoms cannot properly be guaranteed if domestic surveillances may be conducted solely within the discretion of the Executive Branch."'^' But despite this declaration. Project MINARET's analysis of its pool of communications for information about Americans did not cease. Even though President Nixon had directed the NSA to focus on Americans protesting the war in Vietnam, the Nixon Administration did not order the NSA to cease collecting or analyzing intelligence on Americans' domestic activities in light of this Supreme Court decision. Instead, it asked the NSA to stop disseminating the information it was analyzing to other agencies. The NSA responded to even this limited request by asserting that the collection and analysis was legitimate, despite the Supreme Court's ruling in Keith. Specifically, the Director of the NSA, General Lew Allen, Jr., told President Nixon's Attomey General Elliot Richardson that it did not collect domestic intelligence per se but that such information about Americans was simply the "by-product" of its other communications collection activities. He added: No communications intercept activities have been conducted by NSA, and no cryptologie resources have been expended solely in order to acquire messages conceming names on the Watch Lists; those messages we acquire always are by-products of the foreign communications we intercept in the course of our legitimate and well recognized foreign intelligence activities,'''" Accordingly, he added "I believe that our current practice conforms to your guidance that, 'relevant information acquired by you in the routine

and described "Liddy's role: He is an expediter to breakdown bureaucratic problems by either grease or dynamite," Id. at 113, Liddy was later convicted for his role in the Nixon Committee to Re-Elect the President's efforts to break-in to Demoeratic Headquarters at the Watergate Hotel during the 1972 election. See Micheal Wines, Tape Shows Nixon Feared Hoover, N,Y, TIMES, June 5, 1991, at A20 (discussing Liddy's conviction in conneetion with the Watergate scandal), 137, MCMILLAN, supra note 13, at 26-27, 138, S, REP, NO, 94-755, at 746 (1976), 139, United States v, U,S, Dist, Court {,Keith), 407 U,S, 297 (1972), 140, Letter -om Gen, Lew Allen, Dir,, Nat'l Sec, Agency, to Elliot L, Richardson, Att'y Gen, of the United States (Oct, 4, 1973), available at http://www,gwu,edu/~nsarchiv/NSAEBB/ NSAEBB178/survO4,pdf

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pursuit of the collection of foreign intelligence information may continue to be fumished to appropriate govemment agencies.'"''" The agency also argued that communications that were obtained that were not relevant to the NSA's foreign intelligence gathering purposes were discarded and that only relevant information was disseminated.'''^ For example, the agency emphasized that up to 97% of the intemational communications that were analyzed by computer or by human analysts was not retained.'''^ However, even with this high rate of pruning (or, conversely, the low rate of "selecting out" communications of Americans), by the early 1970s the NSA's analysts were reading over 150,000 telegrams to or from Americans each month under Operation SHAMROCK and analyzing an unrevealed quantity of radio communications of Americans that were "incidental" to the NSA's other activities.''*'' That is, due to the volume of communications the NSA was searching through for foreign intelligence information, even taking into account that only a small percent were read by NSA analysts, the effect was to intrude on the privacy of at least 100,000 Americans a month (assuming conservatively that some sent more than one telegram a month), or at least 1.2 million per yearand that was in the 1970s, before the Intemet became widely used and Americans vastly expanded their reliance on electronic communications devices.'''^ Project MINARET was ultimately terminated, but it is not clear to me that in the wake of the more recent revelations of activities by the Bush Administration that it was not subsequently reconstituted, expanded, and rebranded intemally, as described more fully below. In the mid-1970s, a vigorous and skeptical Congress had thoroughly investigated Project MINARET and revealed that over numerous U.S. citizens or groups had been placed on NSA watch lists such that any communications by them or referencing them were sought out amid the pool of conimunications technologically available to the agency. And, beyond the watch list itself. General Allen told the Church Committee that the NSA had created and shared over 3,900 reports on watch-listed Americans.''** And, at one point after the investigation had begun, he promised House Chairman Pike that the NSA was only targeting foreign-communications channels, which carried only a minuscule number of intemational communications by Americans, and was not "monitoring any telephone circuits terminating in the US."'''^

141. Id. 142. MCMILLAN, supra note 13, at 35. 143. Id. at 34. The NSA also emphasized that all personal communications involving Americans were discarded "at the earliest possible moment of discovery." Id. at 35. 144. Bill Moyers Journal, supra note 54. 145. Id. 146. Allen, jwpra note 141. 147. See FISA for the Future: Balancing Security & Liberty: Hearing Before the H. Perm. Select Comm. on Intelligence, 110th Cong. 7-8 (2007) (statement of Lisa Graves, Deputy Director,

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That is, the "one terminal" rule had been abandoned in order to protect Americans' intemationai communications, at least during the congressional investigation. And he asserted that once Operation SHAMROCK was shut down, the NSA was purportedly no longer analyzing the intemationai telegrams of millions of American residents and businesses,'""^ This snapshot of projects and operations terminated belies, to me, the truth. As discussed below, I think it is likely that some of the activities at the heart of SHAMROCK and MINARET continued in different ways with new intemal "controls," namely what was considered to be "incidental" collection involving Americans but that did not focus on Americans "intentionally" and did not permit the analysis of what was collected in this way. I think this is part of the "capacity" that was tapped by the Bush Administration with the aid of certain telecomm companies and with a new focus on the communications of Americans, as described below, to the detriment of our liberty and security. This shift in focus is of paramount importance and great consequence, constitutionally and morally, in our democracy, III. Fast Forward to 2008: Undividing the World of Communications, Revising FISA, and Analyzing More Americans than Ever Before What actually happened next is subject to tremendous debate, especially from the vantage point of the first decade of the 21st century. This much is mostly undisputed: in 1978, Congress passed FISA to regulate foreign intelligence surveillance on these shores, creating a special court to hear applications for warrants predicated on specially defined probable cause to engage in any surveillance that met the statute's definition of "electronic surveillance."''*' Congress created a comprehensive statute to govem this surveillance, explicitly stating that FISA and Title III were the "exclusive" rules for conducting these activities (and repealing the 1968 provision that had statutorily exempted the NSA from criminal penalties for warrantless electronic surveillance).'^" It set forth rules for emergency situations and times of war, providing that warrants were still required.'^' It limited what counted as foreign intelligence so that the rationale for surveillance would not be as broad as President Nixon attempted to stretch foreign policy to

Center for National Security Studies) (citing a letter from Gen, Lew Allen, Dir,, Nat'l Sec, Agency, to Hon, Otis G, Pike, Chainnan, H, Select Comm, on Intelligence, (Aug, 25, 1975)), 148, The National Security Agency and Fourth Amendment Rights: Hearing on S.R. 21 Before the Select Comm. to Study Governmental Operations with Respect to Intelligence Activities, 94th Cong, (1975) (statement of Lew Allen, Jr,, Director, NSA), 149, Foreign Intelligence Surveillance Act of 1978, Pub, L, No, 95-511, 103-105, 92 Stat, 1783, 178-93 (codified as amended at 50 U,S,C, 1803-1805 (2006)), 150, Id 201, 151, , 105(e),

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reach.'^^ Congress also wrote a special, broad definition of content to include not only the words spoken (like criminal wiretaps) but also the fact of communication, length of conversations, and the parties involved;'^^ and then it referenced that content in the definitions of electronic surveillance, as explained below.'^'' FISA barred warrantless targeting of communications to or from people in the United States whether by wire or radio and regardless of where the acquisition occurs (meaning even if not on these shores),'^^ which sounds on the surface of the language like an attempt to bar Project MINARET's watch-listing. It barred warrantless acquisition of communications to or from Americans if acquired from a wire in the United States, even if not targeting a particular U.S. person.'^^ This seems on the surface aimed at stopping the NSA from the bulk collection of the cables of telegram companies or other communications that traveled by wire to or from the United States, which seemingly describes SHAMROCK. FISA also barred the warrantless acquisition of purely domestic radio communications between people in the United States, and it barred other warrantless listening devices directed at people here in the United States.'" This is, at least, what the plain language ofthe statute indicates. To hear the Bush Administration and its proxies tell the story of FISA thirty years after the law passed, FISA changed nothing because the definitions cleverly exempted all ofthe NSA's SIGINT activities.'^^ It is an astonishing claim. The implication of this construction of FISA is that the NSA was statutorily and constitutionally free to restart Project MINARET watch-listing so long as they did not search the pool of intemational communications for a particular American's live intemational communications by name, versus after the communication was transmifted, and that the NSA could re-engage Operation SHAMROCK so long as it moved the operation offshore. Yet when President Jimmy Carter signed FISA into law in October 1978, he stated his belief that "The bill requires, for the first time, a prior judicial warrant for all electronic surveillance for foreign intelligence purposes in the United States in which communications of U.S. persons might be intercepted. It clarifies the Executive's authority to gather foreign

152, See Glenn Grcenwald, Echoes of the Nixon Era, SALON, July 31, 2006, http://www,salon,com/news/opinion/feature/2006/07/31/nsa (characterizing FISA as a response to eavesdropping abuses by the Executive Branch, particularly under President Nixon), 153, FISA lOl(n), 154, Id. 101(f)(l)-(2), 155, Id. 101(f)(l), 156, Id. 101(f)(2), 157, Id 101(f)(3), 158, The Bush Administration argued that an exception to FISA allowed the NSA to continue to gather surveillance on intemational radio communications without a warrant, claiming these were the majority of intemational calls. See infra notes 184-85 and accompanying text.

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intelligence hy electronic surveillance in the United States."'^^ Not that such statements are definitive hy any means given our constitutional stmcture, but he also stated his belief that FISA helps to solidify the relationship of trust between the American people and their Govemment. It provides a basis for the trust of the American people in the fact that the activities of their intelligence agencies are both effective and lawful. It provides enough secrecy to ensure that intelligence related to national security can be securely acquired, while permitting review by the courts and Congress to safeguard the rights of Americans and others.'^" Indeed, the Senate in its report on the bill noted that FISA "[was] designed . . . to curb the practice by which the Executive Branch may conduct warrantless electronic surveillance on its own unilateral determination that national security justifies it."'*' The Senate said it passed FISA to "provide the secure framework by which the Executive Branch may conduct legitimate electronic surveillance for foreign intelligence purposes within the context of this Nation's commitment to privacy and individual rights."'*^ One of the main points of recent disagreement surrounds the so-called radio exception from the definitions of FISA to not include non-targeted intemational radio transmissions in FISA's warrant requirement.'*^ But Congress made clear that the exclusion of some surveillance of Americans from FISA's definitions "should not be viewed as congressional authorization of such activities as they affect the privacy interests of Americans," noting that "the requirements of the [F]ourth [AJmendment would, of course, continue to apply to this type of communications intelligence activity," regardless of FISA.'^'* In fact. Congress envisioned that these activities would be govemed by provisions in Senate Bill 2525,'*^ but that bill never passed, and the White House issued an Executive Order and also intemal rules, such as United States Signals Intelligence Directive 18, to further establish mles for the collection and dissemination of material that affected Americans' privacy rights, beyond the statutory
159, Foreign Intelligence Surveillance Act of 1978, 2 PUB, PAPERS 1853 (Oct, 25, 1978), 160, Id 161, S, REP, No, 95-604, pt, 1, at 8 (1978), repnnterfm 1978 U,S,C,C,A,N, 3904, 3910, 162, Id at 15, 163, See Legislative Proposals to Update the Foreign Intelligence Surveillance Act (FISA): Hearing Before the H. Subcomm. on Crime, Terrorism, and Homeland Sec, Comm. on the Judiciary 109th Cong, 103 (2006) [hereinafter Legislative Proposals] (statement of Jim Dempsey, Policy Director, Center for Democracy & Technology), 164, H,R, REP, No, 95-1283, pt, 2, at 51 (1978); see also S, REP, NO, 94-1035, at 30 (1976); S, REP, NO, 94-1161, at 27 (1976) (indicating that the exclusion of certain types of surveillance from FISA did not indicate Congress's approval of warrantless surveillance in those circumstances and noting the Fourth Amendment still applied to that surveillance), 165, National Intelligence Reorganization and Reform Act of 1978, S, 2525, 95th Cong, (1978),

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protections.'** Plus, Congress took pains in FISA's legislative history to emphasize that broadscale electronic surveillance, even of Americans who were abroad, had been limited by the Executive.'*^ Congress stated that the statute intentionally barred the tapping of wire communications without a warrant for "either a wholly domestic telephone call or an international telephone call . . . if the acquisition of the content of the call takes place in this country... ."'*^ And, in fact, FISA even provided special rules for a limited class of communications in the U.S. to permit warrantless electronic surveillance of special phone lines leased by foreign govemments for their embassies here, by allowing the Attomey General to authorize such surveillance if there was "no reasonable likelihood" that Americans' communications would be intercepted through such orders without a warrant (this has been called the "embassy exception" or "leased-line rule").'*' The Act also restricted testing of radio surveillance equipment to prevent "testing" from being a backdoor way to direct the ears of the NSA at the United States.' And, among other things, it provided "minimization" rules to limit how information that was lawfully obtained in foreign intelligence collection could be retained and shared.'^' These rules specifically mandated the destruction of Americans' communications if they were incidentally obtained without warrants as part of the leased-line exception to the warrant requirement, unless such communications contained information demonstrating a risk to life or limb, or a warrant was later obtained.'^^ All of these restrictive provisions create the strong impression in the public that FISA prevented the warrantless electronic surveillance of Americans on these shores by the govemment in the name of foreign intelligence gathering. '^^ Admittedly, some things were left out of FISA's comprehensive rubric that accorded different procedures to different things based on geographythat is, the geography of America and the rights to be accorded to Americans. But it is hard to fully credit the Bush-era argument
166, See Modernization of the Foreign Intelligence Surveillance Act: Hearing Before the S. Select Comm. on Intelligence, 110th Cong, 11 (2007) [hereinafter Modernization of FISA] (statement of Kate Martin, Director, Lisa Graves, Deputy Director, Center for National Security Studies), 167, S, REP, NO, 95-604, pt, 1, at 34 n,40, reprinted in 1978 U,S,C,C,A,N, 3904, 3936, 168, Id. at 33, 169, See Legislative Proposals, supra note 172, at 106 (statement of Jim Dempsey, Policy Director, Center for Democracy & Technology) (explaining the embassy exception), 170, Foreign Intelligence Surveillanee Act of 1978, Pub, L, No, 95-511 105(f), 92 Stat, 1783, 1790 (codified at 50 U,S,C, 1805 (2006)), 171, FISA 101, 172, FISA 101(h)(4), 173, That is not to say there were not gaps and flaws from a civil liberties standpoint, but it is to say that a fundamental precept of statutory interpretation is to give words their plain meaning and not to construe provisions as meaningless. See Daniel T, Ostas, Legal Loopholes and Underenforced Laws: Examining the Ethical Dimensions of Corporate Legal Strategy, 46 AM, BUS, L,J, 487, 517 n,99 (2009) (stating that statutory interpretation involves appeals to plain meaning as well as maxims of construction).

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that Congress exempted out cmcial, constitutional protections for Americans' rights in the wake of the visceral awareness of the dangers of unchecked electronic surveillance and mountains of evidence of privacy violations involving NSA's SIGINT activities. It is clear, however, that the govemment did not shut down NSA's satellite surveillance of foreign radio communications, although it seems highly likely that there was an understanding that these powers would be focused elsewhere, such as on the Kremlin in the Soviet Union in the midst of the Cold War or on listening for ciphered and unciphered communications involving foreign troop or naval movements, etc. And, it seems clear to me that this foreign intelligence-gathering power and focus would not be directed toward the United States and that there were to be special rules to protect Americans whose communications were genuinely inadvertently acquired. In addition, there were rules that stated that the NSA analysts working in silos in stations around the world to de-channel and decipher radio signals would not focus on American communication channels or particular Americans and that American communications would be discarded unless relevant to genuine foreign intelligence gathering.'^'' It seems, however, that something changed from those original understandings between the Carter Administration and the second Bush Administration, and it was not just the need to respond to 9/11. But, before we tum to that mystery, let us examine the claims made in the second Bush Administration about what FISA meant and why the law needed to be changed after it was revealed that the Bush Administration had issued directives that resulted in far more American communications being analyzed by the NSA than apparently was the practice before then. A. "Almost All Local Calls Were on a Wire and Almost All Long-Haul Communications Were in the Air"A Partial Truth Hiding the Whole Truth

Once the Bush Administration decided to change the debate over the PP to attempting to get Congress to ratify and expand the new electronic surveillance activities it had undertaken, it cleared a set of public talking points to rationalize, indeed normalize, what it had done and then some. A key element of this argument was the claim that FISA permitted the NSA to engage in warrantless electronic surveillance of Americans' intemational radio communications, and Americans' intemational communications occurred via wire, rather than wirelessly, so Congress needed to ratify NSA access to wired communications.'^^ For example. Admiral Michael

174. FISA 101(h)(l). 175. See Modernization of FISA, supra note 175, at 6 (statement of J. Michael McConnell, Director of National Intelligence) (arguing that "FISA's defmitions of 'electronic surveillance' should be amended so that it no longer matters how collection occurs (whether off a wire or from the air)").

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McConnell, who was then the Director of National Intelligence, testified that when FISA was passed "in 1978, almost all local calls were on a wire and almost all long-haul communications were in the air, known as 'wireless' communications,"'''^ but now "the situation is completely reversed; most long-haul communications are on a wire and local calls are in the air."'^^ However, as noted earlier, in contemporaneous disclosures within the Executive Branch that have now been declassified, the NSA in 1976 described quite clearly that almost all domestic calls were a combination of wire and microwave'^^ ("in the air," and even called "wireless" by the NSA back in the day).'^' And although the NSA's focus had indeed been monitoring high-frequency radio waves that traveled across the globe, it is clear that there were other intemationai communications that it could not intercept that way. Operation SHAMROCK is a case in point. In that secret, unconstitutional program, the millions of telegrams the NSA had been accessingand then analyzing by hand at a rate of 150,000 a month in the mid-1970swere transmitted via cable, i.e., wire.'^" And the historical record shows that a substantial portion of intemationai calls to or from Americans transited the ocean via undersea cables, not via radio waves beamed to the sky.'^' Some intemationai calls of Americans travelled via satellite, but many travelled via cable.'^^ And foreign-to-foreign communications across Europe and Asia were most likely partly carried by wire and partly radio waves.'^^ That is, through the use of satellite surveillance, it was not as though the NSA had access to every single telephone call on the globe, just the portion that travelled by high-fi"equency radio waves, if the signal were captured and de-channeled and recorded. This surveillance took place before the recent era of infinitely smaller electronic storage capacity; it is almost impossible to believe that the NSA was storing every single radio signal beamed from anywhere on the planet since 1978. That simply cannot be the case, from an effectiveness standpoint or as a practical matter, let alone a legal matter. At a minimum, post-FISA, the NSA was not supposed to be focusing on the U.S. and acquiring

176, W, at3, 177, Id. at 4, 178, Microwaves actually travel at a higher frequency, and in straight lines, than what is known as high-frequency radio, which follows the curvature of the earth, McMlLLAN, supra note 13, at 131, 179, Id 180, W, at32, 181, Modernization of FISA, supra note 175, at 187 (statement of Kate Martin & Lisa Graves, Center for National Security Studies), 182, Id 183, The transmission of intercontinental communication usually involved more than one medium. See Arthur E, Kennelly, Recent Technical Developments in Radio, 141 ANNALS AM, ACAD, POL, & SOC, SCL 8, 9 (1929) (describing the process of transmitting a communication between the United States and England as involving the transmission of signals via radio waves and wire).

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Americans' purely domestic radio signals, and it had to have a way of not doing that even if it had the capacity to do collect all radio signals in the world. But the more important distinction, and history confirms, is that radio was the dominant medium for foreign govemments to communicate with their ships and subs at sea, their planes in the air, and often with their embassies abroad.'^" And it is that core defense-related activity which Congress primarily intended to preserve in FISA, not to offer the NSA a huge loophole for collecting and analyzing Americans' private communications in the aftermath of condemning the NSA for doing just that.'^^ The carve out was designed to allow the NSA to monitor, for example, the USSR's communications with its sailors, soldiers, airmen, and diplomats; it was not designed to focus on Americans,'^* whom Congress believed had legitimate privacy interests in their communications that necessitated a warrant for targeting Americans and other kinds of electronic acquisition of their private, personal communications.'^^ Still, for that portion of Americans' intemational calls that were acquired as part of what was the NSA's foreign, as opposed to domestic, focus it seems clear from the historical record that some Americans' intemational calls were "incidentally" intercepted, that is, inadvertently, not intentionally.'^^ What this means is that the U.S. channels were not supposed to be the focal point ofthe NSA's activities, but that in the physical process of receiving radio waves some would be intercepted, and intemal mies then determined whether they would be de-channelled and listened to. And, I submit that the norm wasor at least was intended to be in the immediate aftermath of the Church Committeethat the NSA would not tum this

184, Communications to embassies were often enciphered and on specific channelsand you can see evidence of this reliance to this day around Washington with the little satellites dishes and radio towers on many embassies. See David Kahn, The Rise of Intelligence, 85 FOREIGN AFF, 125, 130-32 (2006) (providing a history of military intelligence, noting the importanee of radio communication between govemments and their submarines, planes, and military bases), 185, See S. REP, No, 94-1035, at 19 (noting that electronic surveillance under the FISA bill "would be limited to 'foreign powers' and 'agent of a foreign power,' with American citizens being subject to the surveillance only if acting 'pursuant to the direction of a foreign power' and engaging in certain designated activities , , ,"), 186, See 50 U,S,C, 1802(a) (2006) (permitting electronic surveillance without a court order so long as the Attomey General certifies that such surveillance is directed at communications "between or among foreign powers" with no "substantial likelihood that the surveillance will aequire the contents of any communication to which a United States person is a party"), 187, See 123 CONG, REC, S7857 (daily ed. May 18, 1977) (statement of Sen, Kennedy) ("Electronic surveillance can be a useful tool for the Govemment's gathering of certain kinds of information; yet, if abused, it ean also eonstitute a particularly indiscriminate and penetrating invasion ofthe privacy of our citizens,"), 188, See Bob Woodward, Messages of Activists Intercepted, WASH, POST, Oet, 13, 1975, at A14 (according to Woodward's sources "the NSA [intercepted] all kinds of irrelevant communications, some involving U,S, citizens" prior to FISA),

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incredibly intrusive weapon of surveillance on American channels even though it had the technical capacity to do so. This makes perfect sense if we consider what radio meant in 1978. Whether referring to the thousands and thousands of high-frequency foreign calls travelling along the curvature of the earth, or lower frequency radio signals from an FM station, the essence of radio is that if you have a powerful enough receiver you can tune into a particular channel (and listen to it or record it for later), just like with a short-wave radio, the radio in your car or a transistor radio at the beach.'^' For multi-channel radio, which phone companies used to handle the volume of domestic and intemational calls that were not transmitted by wires or were partly transmitted by radio waves, the signal must be de-channeled to listen to it.''" Why this matters is that some channels were more likely to be purely foreign communicationswithin a foreign country, between countries or from a country's capitol to its military or diplomatsand encoded, while other channels were more likely to be American channels, either purely domestic or international.'" To carry the analogy further, some telephone channels operate almost like a station that plays rock-n-roll all the time while other channels operate like community radio with a variety of programming. If you were charged with gathering foreign intelligence, the heart of which was foreign policy and matters of war and peace, you would be likely to tune out certain channels and very likely to tune in others. If your receivers were large or strong or precise enough, in effect, you might very well have the technical capacity to listen to Americans' domestic calls from New York to Los Angeles.''^ And, you would also have to make decisions about whether you were going to record or retain all those radio waves bouncing across the earth. If your focus were the Soviet Union during the Cold War, for example, you might listen quite actively (around the clock) from your NSA stations around the

189, See MCMILLAN, supra note 13, at 131 (noting that "unsophisticated radio receivers over an area of perhaps 30 per cent of the earth's surface" could intercept the radio portion of intemational radio-telephone communications to the United States and that "[h]igh frequency multichannel transmissions may be de-charmeled by 'home made' amateur equipment"), 190, See supra notes 124-26 and accompanying text (explaining that high-frequency radio signals could be intercepted and de-channelled); see also DUNCAN CAMPBELL, INTERCEPTION CAPABILITIES 2000 (1999), available at http://www,cyber-rights,org/interception/stoa/ic2kreport, htm#N_16_ (noting in a report to the Director General for Research of the European Parliament that "[h]igh frequency radio signals are relatively easy to intercept" and that "[f]rom 1945 until the early 1980s,, , , NSA , , , operated [high-frequency] radio interception systems tasked to collect European [International Leased Carrier] communications in Scotland"), 191, See CAMPBELL, supra note 190 (relating that the NSA used high-frequency radio monitoring systems, including ones which could "simultaneously intercept and determine the bearing of signals from as many directions and on as many frequencies as may be desired," to intercept Soviet and Warsaw Pact air force communications, French diplomatic communications, and diplomatic messages sent to and from Washington), 192, See MCMILLAN, supra note 13, at 131 (describing the wireless component of the United States commercial communication system as "a multi-channel microwave carriers system eapable of carrying up to 2,000 communications on some channels").

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world, staffed with linguists, to certain channels and record them for later analysis to search for certain code words or information, but if you were rational you probably would not devote staff to listening to radio transmissions from Des Moines to Denver and you probably would not record it; and even if you did accidentally collect it and record it you probably would not keep it forever. And, you certainly would not listen to wireless communications between Denver and Des Moines, if doing so were barred. Under this conceptualization, the focus ofthe NSA's activities is better conceived of as foreign not intemational. And the bulk of those purely foreign communications focused upon for "foreign intelligence" gathering would likely not involve Americans at all. B. What If Most Digital Communications Accessible Involved Americans? Just to be clear, it was emphatically not the case that almost all domestic calls of Americans were by wire and almost all intemational calls were wireless in 1978.'^^ And, so, it is not the case that giving the NSA warrantless access, as has been alleged in swom statements, to the digital networkthat is the digital backbone ofthe U.S. communication systemis balancing the scale to restore what was supposedly permitted in 1978. It is breaking the scale. Even if this were the tacit arrangement embodied in the FISA Amendments Act and subject to new intemal "controls," then just as David Kris, who is now the Assistant Attomey General for the National Security Division, previously urged that "current policymakers should not be prisoners to the judgments of 1978,""'' we should not be prisoners of the judgments of 2008 or the judgments of 2001. There is some evidence that the NSA pressed for access to the digital communications network as part of briefing the transition teams for incoming President George W. Bush."^ And there is some evidence that the Bush Administration asked the major telephone companies for a new kind of access to their digital network before September 11th,"* a request which

193, See Modernization of FISA, supra note 175, at 187 (statement of Kate Martin & Lisa Graves, Center for National Seeurity Studies) (contending that when FISA was passed, it was not true that all intemational ealls were via satellite radio and all domestic calls were via wire), 194, David S, Kris, Modernizing the Foreign Intelligence Surveillance Act: A Working Paper of the Series on Counterterrorism and American Statutory Law 7-13 (Brookings Inst,, Geo, Univ, Law Center, & Hoover Inst,, Paper No, 1, 2007), available at http://www,brookings,edu/~/media/Files/rc/papers/2007/l 115_nationalsecurity_kris/l 115_nationals ecurity_kris,pdf 195, See NSA, TRANSITION 2001 32 (2000), available at http://www,gwu,edu/~nsarchiv/NSAEBB/NSAEBB24/nsa25,pdf (urging the Bush Administration to allow the NSA to have a "permanent presence on a global telecommunications network"), 196, See Scott Shane, Former Phone Chief Says Spy Agency Sought Surveillance Help Before 9/11, N,Y, TIMES, Oct, 14, 2007, http://www,nytimes,com/2007/10/14^usiness/14qwest,html (reporting that Qwest Communications refused an NSA proposal that Qwest considered illegal in February 2001),

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Qwest Communications reportedly denied and subsequently lost favorable treatment by the federal govemment on other matters, as indicated in statements made by their CEO during his prosecution for insider trading."^ But, it is also clear that in the fall of 2001, new directives were issued by President Bush that had the effect of expanding what the NSA was doing with its technological capacity and that seemingly affected how U.S.-based telecommunications companies cooperated with the govemment in response, at least according to public affidavits swom under penalty of perjury.'^^ That evidence demonstrates that, technologically, the NSA was making duplicates of the digital communications within the United States, and not doing so at the bulkheads of the fiber-optic network going into and out of the United States, but at a variety of locations within the United States, on systems that commingled the domestic and intemational conversations and e-mails and all related data of Americans in the communications packets passing through the fiber optic network literally at the speed of light. "^ But, setting that aside for now, I want to look at whether the Bush Administration's legal rationale for expanded access to the U.S. communications grid, pre- or post-9/11, is strong and comports with legal precedent and wise policy analysis. I confess that my skepticism is deepened, in part, by the widely condemned results-oriented legal analysis of John Yoo, who wrote the initial rationales for the PP and other controversial secret programs, and his ideological predisposition toward expanding executive power.^ It also is informed by the systematic attempt in the "white paper" the Justice Department produced in January 2006 (which I call the kitchen sink memo) to posit altemative rationales for the PP and to limit

197. Id. 198. See Peter Baker, President Acknowledges Approving Secretive Eavesdropping, WASH. POST, Dec. 18, 2005, http://www.washingtonpost.com/wp-dyn/content/article/2005/12/17/AR200 5121700456.html (reporting that an intelligence official confirmed that Bush signed an order authorizing the NSA surveillance program in October 2001, not in 2002 as previous reports had indicated). 199. See Susan P. Crawford, Transporting Communications, 89 B.U. L. REV. 871, 928 (2009) ("In fiber-optie installations, strands of glass no thicker than a human hair allow pulsing photons to move across them at speeds close to the speed of light "); id. at 898-900 (explaining that communications services are mostly based upon the Intemet Protocol, which is a "common language allowing the division of all communications into small packets that are then individually routed, one hop at a time, to their destination"); Shayana Kadidal, Does Congress Have the Power to Limit the President's Conduct of Detentions, Interrogations and Surveillance in the Context of War?, 11 N.Y. CiTY L. REV. 23, 56 n.l23 (2007) (indicating that with the advent of digital telephony, phone calls are moved along "the fiber optic backbones of the major phone carriers . . . in much the same manner as intemet packets are moved"). 200. See Pamela Hess & Lara Jakes Jordan, Memo Linked to Warrantless Surveillance Surfaces, USA TODAY, available at http://www.usatoday.com/news/washington/2008-04-03surveillance-memo_N.htm (reporting that federal documents indicate that an October 2001 intemal memorandum written by John Yoo related to the PP, although a White House spokesman said the memo did not form the basis for the program). See generally John Yoo, The Terrorist Surveillance Program and the Constitution, 14 GEO. MASON L. REV. 565 (2007) (arguing for the legality of the PP).

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the reach of the warrant requirement that was at the heart of FISA's definitions.^"' That is to say, at key junctures, the Bush Justice Department took an expansive reading of executive power and a parsimonious, hairsplitting view of the privacy and civil liberties at stake. And it squeezed Congress to accept these constrained views. For example, the Bush Justice Department repeatedly emphasized their view that, for the government to listen to Americans' conversations warrants were not constitutionally required in foreign intelligence surveillance;^"^ that federal law setting warrants as a requirement to conduct certain types of surveillance was not binding;^"^ that for conversations already obtained, the appropriate standard is derived from the "special needs" cases and that reasonableness is the operative test;^"'' that the reasonableness test could be satisfied solely by the President's determination;^"^ and finally, that courts should not be permitted even the possibility of ruling against the President's determination.^"* As for communications data, the Bush Administration emphasized repeatedly its view that there is no constitutional interest at stake^"^ and they have therefore kept hidden the number of Americans whose communications data has been obtained.^"^ And they have asserted similarly that Americans
201, U,S, DEP'T OF JUSTICE, LEGAL AUTHORITIES SUPPORTING THE ACTIVITIES OF THE NATIONAL SECURITY AGENCY DESCRIBED BY THE PRESIDENT (2006),

202, See id. at 7 (arguing that there is an understanding that the President does not need a warrant for foreign intelligence surveillance, even in the United States), 203, See id. at 20-23 (asserting that FISA does not apply where surveillance is authorized by another federal statute), 204, See id. at 37-39 (arguing that the special needs doctrine renders the Fourth Amendment warrant requirement inapplicable to the NSA activities), 205, See id. at 40 (explaining that "the President has stated that the NSA activities are 'critical' to our national security," and urging that this govemmental interest can overcome individual privacy interests under the balancing of interests analysis used to determine reasonableness), 206, See id. at 35 (arguing that an interpretation of FISA that would not allow the President to conduct the NSA activities "would be uneonstitutional as applied in the context of this congressionally authorized armed conflict"); id. at 36 & n,21 (contending that if the AUMF were not construed to be a statute authorizing electronic surveillance outside FISA procedures in accordance with the exclusivity provision added by FISA, then "[t]he President's determination that electronic surveillance of al Qaeda outside the confines of FISA was 'necessary and appropriate' would create a clear confiict between the AUMF and FISA" and that such conflicts should be avoided), 207, See Risen & Lichtblau, supra note 98 (explaining that, when confronted with criticism about the constitutional implications of its communications data surveillance programs, "Bush administration officials argue[d] that the civil liberties concerns [were] unfounded , , , ,"); Joseph T, Thai, Is Data Mining Ever a Search Under Justice Stevens's Fourth Amendment?, 74 FORDHAM L, REV, 1731, 1733, 1738-39 (2006) (explaining the Bush Administration's reliance on the "thirdparty doctrine"the principle that "when we convey information to a third party, we give up all constitutionally protected privaey in that information"to help justify its data-surveillance programs, despite the statutory protections that had been created), 208, They have done so in this context and for National Security Letter disclosures under 505 of the USA Patriot Act as amended. See Dan Eggen, Spy ChiefDiscloses Broader Program, WASH, POST, Aug, 1, 2007, at C3 (describing the Bush Administration's refusal to confirm news reports that it had obtained millions of Americans' phone records from telecommunication companies);

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have no cognizable constitutional interest in information a person tums over to a company, be it financial records or Intemet transactions.^"' So, should Americans assume that the NSA is now capturing their all communications data and analyzing it for the indefinite future, under the notion that we do not have any cognizable constitutional interest in keeping this private fi-om the govemment's prying eyes? The problem is not that there is no case law to analyze and extrapolate fi-om. The problem is that there was no apparent effort to assess whether doing X rather than Y was a good idea, whether that older case law comports with modem realities, or what the genuine implications are for Americans' privacy and liberty interests. It seems decisions were viewed, and continue to be viewed, through the lens of Vice President Cheney's "one percent doctrine," the ultimate ends-justify-the-means rationale.^'" So please forgive me for being jaded about whether they got the balance right in FISA or other areas. In essence, the legal argument seems to have boiled down to one word: terrorism. And, as demonstrated by the faulty FISA Court of Review decisions, substituting the reasonableness test for the warrant requirement results in no warrant being required to acquire increasing volumes of communications, including Americans' communications.^" And no warrant has apparently been required to drill down into the primordial soup of these communicationsto compile detailed information about Americans' communications. These communications involve everything fi-om the mundane to the intimate: their fieedom of conscience, fi-eely expressed, via e-mail or text or digital calls that can now be much more easily recorded, saved, and indefinitely searched and analyzed by this presidential administration and iture Executive Branch leaders in the decades to come. All that is to say that the revolution in digital communications and communication pattemswhich served as one of the rationales for the push to change FISA to permit more warrantless electronic surveillance^'^
Daniel Klaidman, Now We Know What the Battle Was About, NEWSWEEK, Dec, 22, 2008, at 46 (discussing the NSA's collection and storage ofthe records of calls and e-mails of tens of millions of average Americans between September 2001 and Mareh 2004," and noting the Bush Administration's unwillingness to comment on or provide information about the program), 209, See, e.g., Stephen E, Henderson, Beyond the (Current) Fourth Amendment: Protecting Third Party Information, Third Parties and the Rest of Us Too, 34 PEPP, L, REV, 975, 977-82 (2007) (exploring how the third-party doctrine was used to justify the NSA's and FBI's warrantless surveillance of emails and banking records), 210, RON SUSKIND, THE ONE PERCENT DOCTRINE 62 (2007) (describing Cheney's formulation ofthe one percent doctrine), 211, Stephanie Cooper Blum, What Really is at Stake with the FISA Amendments Act of 2008 and Ideas for Future Surveillance Reform, 18 B,U, PUB, INT, L,J, 269, 282 (2009) (describing the FISA Court of Review's conclusion that a FISA Amendments Act "warrant," what is really an order permitting a program of surveillance without any of the indicia of a Fourth Amendment warrant, should be granted unless the govemment's sole objective was to obtain evidence of a past crime), 212, This was one of the arguments made by the Director of National Intelligence and the expensive lobbyists of the phone companies that were trying to prevent legal liability for

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actually warrants greater privacy protections for Americans, not weaker ones. And, it is my view that greater privacy protections for Americans will help ensure that precious anti-terrorism resources and Americans' precious tax dollars are not squandered capturing, storing, and analyzing innocent Americans. These tools, this weapon of surveillance capacity to capture almost every electronic conversation one has and all the data about who our friends and family are, should not be tumed on Americans. As I have noted in my previous testimony with Kate Martin: [B]y any reasonable estimate of the number of actual suspected al Qaeda operatives in contact with the US, the volume of innocent communications of Americans that would be swept up in a nation of 300,000,000 people creates a ratio exponentially smaller than even the so-called one percent doctrine of the Vice President. Statistically, the proportion of innocent intemational calls and e-mails that would be statutorily allowed to be vacuumed under [the then-proposed amendments to FISA] would be on the order of 99.999+ innocent and, at what cost in both privacy and money? There is no such exception in the Fourth Amendment. The Constitution does not permit the seizure of millions or billions of conversations or e-mails of Americans to look for a few.^'^ Ultimately, FISA was changed, in response to national security fearmongering by President Bush, to permit warrantless access from within the United States of electronic communications in which at least one party to the communication is reasonably believed to be located outside the United States (resurrecting the one-terminal rule that had been cut back by FISA initially, at least for communications acquired in the United States) if the goal of collecting the communications is to obtain foreign intelligence.^''' Let us consider what may be possible under the new rules and rationales. And let us consider what additional information it would be important to know to assess this. IV. What Does "Incidental" Collection Mean Under FISA as Amended With Current Technology and What About "Intentional" Collection and/or Analysis of Americans' Conversations and Communications Without Warrants? One of the keys to understanding what this new warrantless surveillance means for American privacy is to revisit what then-NSA Director General Hayden reportedly told the Bush Administration in 2001 about the NSA's

cooperating with the Bush Administration's breach of FISA's mles. See Modernization of FISA, supra note 175, 18 (statement of J, Michael McConnell, Director of National Intelligence), 213, Modernization of FISA, supra note 175, at 187 (statement of Kate Martin & Lisa Graves, Deputy Director, Center for National Security Studies), 214, The FISA Amendments Act of 2008, Pub, L, No, 110-261, 702(a), 122 Stat, 2436 (to be codified at 50 U,S,C, 1881(a)),

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capabilities. It is also useful to revisit what this means for American's privacy in light of the NSA rationales in the declassified McMillan memorandum. Following September 11th, General Hayden took immediate actions in response to al Qaeda. In Hayden's testimony to the Senate Intelligence Committee, he stated that he was then asked by other Bush Administration officials "[i]s there anything more you can do? And I said, 'not within my current authorities."'^'^ He then described three ovals of a Venn Diagram as "what was technologically possible, what was operationally relevant, and what would be lawful."^'* According to John Yoo's book, which reiterates this story, the administration argued that the President as Commander in Chief had the authority to take any action he deemed lawfiil,^'^ meaning that the overlapping "lawful" oval of NSA activities in the diagram could be expanded at will. As the administration re-interpreted expansive authority of the President to act outside of federal statutes, construed prior executive orders as nonbinding, and (as discussed above) interpreted the Fourth Amendment narrowly to encompass only a reasonableness test for electronic surveillance, they greatly exceeded the boundaries established previously. When General Hayden testified to the Senate during his CIA Director confirmation hearing, he was asked about whether there were privacy concems for Americans swept in by the program. Hayden told the Senate: [F]rom the very beginning, we knew that this was a serious issue, and that the steps we were taking, although convinced of their lawfulness, we were taking them in a regime that was different from the regime that existed on 10 September. I actually told the workforce . . . fi-ee peoples always hav[e] to decide the balance of security and their liberties, and that we through our tradition have always planted our banner way down here on the end of the spectrum toward security. And then I told the workforceand this has actually been quoted elsewhereI told the workforce there are going to be a lot of pressures to push that banner down toward security, and our job at NSA was to keep America free by making Americans feel safe again. So this balance between security and liberty was foremost in our mind.^'^ When pressed about whether there were privacy concems involved in the PP, meaning were Americans' rights implicated. General Hayden

215, Nomination of General Michael V. Hayden, USAF, to be Director of the Central Intelligence Agency: Hearing Before the S. Select Comm. on Intelligence, 109th Cong, 28 (2006) [hereinafter Hayden Nomination] (statement of General Michael V, Hayden, General, U,S, Air Force), 216, Id. at 29.
217, JOHN YOO. WAR BY OTHER MEANS 103 (2006),

218, Hayden Nomination, supra note 225, at 29 (statement of Michael V, Hayden, General, United States Air Force),

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responded, "I could certainly understand why someone would be concemed about this."'" Shortly after the December 2005 story broke about the NSA's new activities. President Bush admitted to a single aspect of the PP, which he branded the "Terrorist Surveillance Program" (TSP), which involved listening to calls between any suspected al Qaeda agent and anyone in the United States.^'" But, soon there was more confirmation that there were other aspects the President did not disclose that did not involve just listening to suspected terrorists. In the intervening period. General Hayden gave a public speech at the National Press Club in which he discussed the TSP, asserting: It is not a driftnet over Dearbom or Lackawanna or Freemont grabbing conversations that we then sort out by these alleged kej^word searches or data-mining tools or other devices that so-called experts keep talking about. This is targeted and focused. This is not about intercepting conversations between people in the United States. This is hot pursuit of communications entering or leaving America involving someone we believe is associated with al Qaeda. We bring to bear all the teehnology we can to ensure that this is so.'^' A few months after this, investigative reporters noted that sources had confirmed that the NSA's new activities included the data-mining of Americans' domestic calls and e-mails.'^^' And shortly afterwards. President Bush nominated Hayden to head the CIA.^'^ At his confirmation hearing, Hayden was asked how to square the more recent reports with his press club remarks, and he stated that he chose his words carefully, adding: I bounded my remarks by the program that the President had described in his December radio address. It was the program that was being publicly discussed. And at key points in my remarks I pointedly and consciously down-shifted the language I was using. When I was talking about a drift net over Lackawanna or Freemont or other cities, I switched from the word "communications" to the much more specific and unarguably accurate conversation. And I went on in the speech and later in my question and answer period to say we do not use the content of eommunications to decide whieh communications we want to study the content of. In other words, when we look at the content of the communieations, everything between "hello" and "good

219. W. at33. 220. Bush Says He Signed NSA Wiretap Order, CNN, Dec. 17, 2005, http://www.cnn.eom/ 2005/POLITlCS/l 2/17/bush.nsa/index.html. 221. Heather Greenfield, CIA Nominee's Hearing May Focus on Wiretapping, GOVERNMENT EXECUTIVE, May 8, 2006, http://www.govexec.com/dailyfed/0506/050806tdpml.htm (emphasis added) (quoting General Hayden's speech at the National Press Club). 222. See Leslie Cauley, NSA Has Massive Database of Americans' Phone Calls, USA TODAY, May 10, 2006, at Al. 223. Id.

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bye" we had already established a probable cause standardright to a probable cause standard that we had reason to believe that that communication, one or both of those communicants were associated with al Qaeda.^^" So, what this means is that once the restraint of the law was taken off the table, meaning FISA's rules and related rules had been bent or broken by executive fiat, as of October 6, 2001, the Administration directed the NSA to analyze Americans' call records and presumably their e-mail contacts as well. Here's how Senator Carl Levin described the situation based on what was in the public record: After listening to the Administration's characterizations for many months, America woke up last Thursday to the USA Today headline, quote, "NSA has massive database of Americans' phone calls." The report said that "The National Security Agency has been secretly collecting the phone call records of tens of millions of Americans . . . . The NSA program reaches into homes and businesses across the nation by amassing information about the calls of ordinary Americansmost of whom aren't suspected of any crime." , . . And the May 12 New York Times article quotes "one senior govermnent official" who "confirmed that the N.S.A. had access to records of most telephone calls in the United States," We are not permitted, of course, to publicly assess the accuracy of these reports. But listen for a moment to what people who have been briefed on the program have been able to say publicly. Stephen Hadley, the President's National Security Adviser,... said the following: "It's really about calling records, if you read the story: who was called when, and how long did they talk? And these are business records that have been held by the courts not to be protected by a right of privacy. And there are a variety of ways in which these records lawfully can provided to the govemment. . . it's hard to find the privacy issue here." Majority Leader Frist has publicly stated that the "program is voluntary." And a member of this committee has said: "The President's program uses infonnation collected fi'om phone companiesthe phone companies keep their records. They have a record. And it shows what telephone number called what other telephone number. "^^^ So, it is clear that the program involved analyzing the connections among Americans, and between Americans and others, meaning the analysis

224, Hayden Nomination, supra note 225, at 50-51 (statement of Michael V, Hayden, General, United States Air Force), 225, Press Release, Sen, Carl Levin, Statement by Senator Carl Levin on the Nomination of General Michael Hayden for Director of the Central Intelligence Agency (May 18, 2006), http://levin,senate,gov/newsroom/release,cfm?id=255787.

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of the communications of hundreds of millions of Americansinnocent Americans. But, let us understand what this really means as a technological matter. As noted in the McMillan Memo, the NSA does not conceive of its activities as driftnets over particular cities or even as targeting particular Americans.^^* It considers its activities to be "the routine pursuit ofthe collection of foreign intelligence information."^^^ But, the Bush Administration basically redefined the pursuit of foreign intelligence information to include the analysis of purely domestic communications. That had been legally verboten, even if it had been technically feasible through the NSA's technological ears. What the Bush Administration did was tum those ears inward or invite those ears to focus on U.S. communicationsit made those communications "operationally relevant." So, what was rationalized by the NSA in the McMillan Memo as the acceptable "inadvertent" or "incidental" collection of some number of Americans' telephone calls that were minimizedmeaning shared by name only if containing foreign intelligence infonnationhas become no longer incidental, accidental, or inadvertent in the true sense ofthe words. The focus on the United States is intentional and deliberate. This is a major change. It is an enormous shift in mission. And it poses tremendous risks to liberty. Here is one of the reasons why. As a technological matter, communications data travels in packets with content.^^^ This means that, in essence, the act of capturing a specific piece of data captures the content. So, unless the NSA were only obtaining Americans' phone bills after the fact, as opposed to during the process of transmission, it is likely capturing the words spoken or written or texted are captured as well. Now it is certainly possible that there is some mechanism by which the NSA may be able to peel off the data and delete the text forever, but we must question whether any govemment agency should be given such access to the content of our conversations in a free society, without individualized suspicion and an independent check for probable cause of intentional wrongdoing.'^^' In other settings. General Hayden has asserted that any actual conversations that are obtained that do not have "inherent foreign intelligence value" are

226, See MCMILLAN, supra note 13, at 81, 82 (deseribing the NSA's "one-terminal rule," as a self-imposed restrietion aimed at maintaining the ageney's foeus on intemational intelligenee, as well as its eommitment to the protection of "individual constitutional rights and civil liberties," by prohibiting the intentional interception of "a communication unless at least one terminal is outside the United States"), 227, Id. 228, See, e.g., INTERNET ENGINEERING TASK FORCE, INTERNET PROTOCOL: DARPA INTERNET PROGRAM PROTOCOL SPECIFICS 11 (1981), available at http://tools,ietf,org/html/rfc791 (establishing the IPv4 protocol, which is the foundation for the Intemet, and specifying the source, destination, and other transmission information that must be included in each header of a data packet), 229, Some legal scholars have argued that true anonymization and minimization is impossible. See Paul Ohm, Law in a Networked World: Good Enough Privacy, 2008 U, CHI, LEGAL F, 1,

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"suppressed," his technical description of how the agency engages in the "minimization" of conversations, in addition to expunging the identities of Americans when transcripts of conversations are circulated.'^^^ But what does suppression of the digital records of e-mails and phone calls mean? It seems too complicated a way to describe "destruction," and instead seems like a clever way to describe the retention of the material and the potential for analysis of it, indefmitely. But, let's examine what this may mean in the context of the FISA Amendments Act (FAA). The FAA permits the FISA Court to issue orders approving programs of surveillance and it is described as covering NSA "acquisitions" in which one party is reasonably believed to be outside the United States (the one-terminal rule) and the objective is to obtain foreign intelligence information.^^' But, the NSA's position, as made manifest by the McMillan Memo, is that its collection of intemational communications, meaning purely foreign as well as Americans' intemational conversations, is in pursuit of foreign intelligence information.^^^ In fact, that is also how it described Operation SHAMROCKthat it was searching the intemational cables of American residents and businesses for foreign intelligence information.^^^ The NSA's core business is pursuing foreign intelligence information.^^"* So, with respect to domestic communications, the NSA may have taken the view that domestic call and e-mail records are operationally relevant in pursuit of connections to foreign nationals. That is, an American's call records and Intemet transactions may reveal their connections to people abroad.^^^ How

230, General Michael V, Hayden, Principal Deputy Dir, of Nat'l Intelligence, Office of Nat'l Intelligence, Address to the National Press Club: What American Intelligence & Especially The NSA Have Been Doing To Defend The Nation (Jan, 23, 2006) (transcript available at http://www,dni,gov/speeches/printer_friendly/20060123_spcech_print,htm), 231, FISA Amendments Act of 2008, 703, Pub, L, No, 110-261, 122 Stat, 2436 (to be codified in 50 U,S,C, 1881b), 232, See MCMILLAN, supra note 13, at 26-27 (explaining the NSA surveillance program MINARET, which selected "certain by-product intelligence" from foreign intelligence sources, and asserting that, "NSA dealt only with 'foreign communications', i,e,, communications having at least one terminal on foreign soil"), 233, S, REP, No, 94-755, at 733-34 (1976) ("With one exception, NSA contends that its interceptions of Americans' private messages were , , , for 'foreign intelligence' purposes. This contention is bome out by the record,"), 234, See infra notes 24442, 235, See generally David E, Pozen, Note, The Mosaic Theory, National Security, and the Freedom of Infonnation Act, 115 YALE L, J, 628, 630 (2005) ("The 'mosaic theory' describes a basic precept of intelligence gathering: disparate items of infonnation, though individually of limited or no utility to their possessor, can take on added significance when combined with other items of information,"). The legal validity of this theory and data mining in this context has been challenged by civil liberties advocates, including me. The embrace of this theory dramatically changes the rules for protecting the rights of individuals because it attempts to rationalize and normalize the collection of information that is, by definition, not relevant and the retention of information that is not relevant under the notion that it may some day be relevant (in essence conceding that it is not currently relevant). This theory's circularity is deeply problematic when it comes to Americans' interests in privacy and liberty. We have seen this argument repeatedly from the FBI, including General Counsel Valerie Caproni, among others, who claimed in meetings with

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will the NSA find out about those connections without tracking such records in the first place? This is the very circularity of such an approach. Today, when one looks at the FAA definitions, they read more like swords than shields, as we know now how the Executive Branch, and the NSA, has interpreted its powers over time. For example, in pursuit of foreign intelligence under this statutory authority, purely domestic conversations are subject to a warrant requirement only if the NSA knows at the time of acquisition that the sender and all recipients are in the United States.^^^ What does this mean now for genuinely domestic e-mails or phone callshow does the NSA know where the sender and all the recipients are when it is duplicating communications transiting the fiber optic network. If the agency does not know that you and everyone you are e-mailing are in the United States rather than on spring break in Paris or Cancun at the time the email is sent, does it presume the communications are fair game for acquisition and analysis? When previously pressed on this issue, the Bush Administration through its proxies, in essence, claimed that it did not know for certain that an American area code is being used in America or that an American is not accessing his or her e-mail from an intemet caf abroad. And the rules for purely domestic conversations seem quite apart of communications, in the words of General Hayden.^" So, while there now appears to be FISA Court orders to permit certain kinds of access to communications in the United States, that does not mean that the only communications being acquired and

civil liberties advocates that the FBI would not delete private financial or other infonnation about Americans gathered under the broadened rules for issuing National Security Letters even if the person was cleared or the case was closed under the theory that the information might some day be relevant In my view, this is an unacceptably intrusive and privacy damaging "standard," It destroys the long-standing idea that criminal or intelligence agencies should not be keeping files or infonnation on Americans without predication that they are doing something wrong. The FBI General Counsel also asserted that retaining personal private information on Americans who were cleared of any wrongdoing would be civil liberties-protective by making it easier to clear such persons again if their name came up later. While the "mosaic" theory may be a "precept" for gathering infonnation about people abroad who are not extended certain protections guaranteed to people within the U,S,, it is an utterly inappropriate policy for the American govemment to deploy against the American people. Intelligence gathering here must be properly focused in order to advance both the security and liberty of the American people, and that requires predication and judicial approval of such intrusions, in my view, 236, FISA Amendments Act of 2008, 702, Pub, L, No, 110-261, 122 Stat, 2436 (to be codified in 50 U,S,C, 1881a) (allowing the targeting of persons reasonably believed to be located outside the United States for the acquisition of foreign intelligence infonnation, so long as the acquisition does not intentionally target any person known at the time of acquisition to be located in the United States), 237, Hayden distinguished between Americans' "conversations" and "communications" being accessed by the NSA, See Hayden, supra note 241, at 7 ("This is not about intercepting conversations between people in the United States, This is hot pursuit o communications entering or leaving America involving someone we believe is associated with al Qaeda, , , , When you're talking to your daughter at state college, this program cannot intercept your conversations. And when she takes a semester abroad to complete her Arabic studies, this program will not intercept your communications.") (emphasis added).

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analyzed involve al Qaeda or foreign powers. And, once an American's call records, e-mail transactions, conversations, or written statements are intercepted in the broad pursuit of foreign intelligence information, there is no statutory requirement that a warrant be sought based on probable cause of wrongdoing such as conspiring to commit an act of violence.^^^ The bottom line is that the American people have no way to assess the effectiveness of such activities. American citizens do not know how much the NSA's budget is, although it has been reported to be eight billion dollars."' The American people have not been informed about how much money is being spent to house the data that is now being accumulated on them, but there have been reports of several new buildings being built in the United States for storage and for analysis, and that technology is allowing data to become increasingly easy to store.^''" The American people have been kept in the dark about how much is being spent to analyze American communications or conversations. And, the American people have no idea how much money the NSA or other agencies may be spending to buy access to third party records, data, or information about Americans. We do know that the Executive Branch, at least in the prior Administration, has taken an expansive view of Supreme Court precedent about so-called third party records and argued that Americans have no cognizable privacy interest in keeping such records from the govemment. We also know that the Bush Administration engaged in "significant and systemic" "over-collection" of domestic communications of Americans, in a manner that went "beyond the broad legal limits established by Congress" in the 2008 FISA Amendment Act. And there has been no clear explanation to the American people about how the govemment views the voluntary sharing of infonnation with friends (or friends of friends) on Facebook or other social media. For example could a govemment agency, without disclosing its identity, create an "app" to obtain voluntary access to information? Or, could a private entrepreneur do so and then sell or share such infonnation with the govemment? There are enormous risks to individual freedom in the cunent environment where the rules are unclear and every word spoken about these activities is so carefully selected to obscure the truth and protect both legitimate and illegitimate secrets. Once the govemment "normalizes" access to Americans' communications, we cannot control what future leaders may do with the newly accessible pool of infonnation, even if the govemment currently has intemal controls to "suppress" captured data or conversations that are not

238. Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95-511 lOl(h), 92 Stat. 1783, 1785 (codified at 50 U.S.C. 1801). 239. See Siobhan Gorman, Budget Falling Short at NSA, THE BALTIMORE SUN, January 17, 2007, http://articles.baltimoresun.com/2007-01 -17/news/07011701 OO_l_alexander-budget-spyagency (estimating the initial 2007 NSA budget to be approximately $8 billion per year). 240. See BAMFORD, supra note 75, at 1, 3, 211.

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operationally relevantthose data or conversations nonetheless remain available. But, the American people have been denied an informed debate over how much this ill-advised focus on Americans and these broad collection efforts are costing us or how that money could be spent or might be better spent in ways that are more properly focused and that protect their legitimate privacy. As the House of Representatives noted in passing FISA, "While oversight can be, and the committee intends it to be, an important adjunct to control of intelligence activities, it cannot substitute for public laws, publicly debated and adopted, which specify under what circumstances and under what restrictions electronic surveillance for foreign intelligence purposes can be conducted."^"' The American people need to understand more fully the risks of inviting the ears of the NSA onto these shores. That is not because the men and women of the NSA cannot be trusted, but because those in power, like Nixon and Bush/Cheney, will tum to them in manufactured (as with the claimed nuclear weapons purported to be in Iraq in 2002) or genuine crises and instruct them to do whatever is "technologically feasible." As Frank Church forewarned back in 1975, unless closely controlled, the powers of the NSA: could be tumed around on the American people, and no American would have any privacy left, such [is] the capability to monitor everything: telephone conversations, telegrams, it doesn't matter. There would be no place to hide. If this govemment ever became a tyranny, if a dictator ever took charge in this country, the technological capacity that the intelligence community has given the govemment could enable it to impose total tyranny, and there would be no way to fight back, because the most careful effort to combine together in resistance to the govemment, no matter how privately it is done, is within the reach of the government to know. Such is the capacity of this technology,^" That was the "abyss" Chairman Church feared. Tuming the NSA's technological weapons on the United States was the "bridge" he did not want to see us cross. But now, after the P.R. and lobbying campaign of President Bush's Director of National Intelligence describing how essential it was to "modemize" FISA because of the advent of the Intemet (shifting the rationale from the need to change the laws that were broken), we have crossed that bridge. Fortunately, we have not fallen into the abyss. Yet, the technological capacity of the NSA of 1975 that Senator Church feared has been dwarfed by the NSA's technological capacity and access today. And, now, that technological capacity has been tumed inward, with intemal "controls" that could be easily changed at the secret directives of those in charge. Unless we
241, H, REP, No, 95-1283, at 21-22 (1978), 242, BAMFORD, supra note 75,

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reconfirm privacy's status as an essential right, and police robust standards for its protection, no less than Americans' inalienable right to privacy and to freedom of speech, freedom of conscience, freedom of association, and, of course, freedom from the uninvited ear ofthe govemment could be lost.

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