Monday, August 01, 2011


❄ This post, and other ‘PLAIN TALK’ posts on this blog, describe in plain language the current Republican Party aims and methods. In this case the consequence—intentional or not—of ready Republican support for more invasive ‘intelligence gathering’ is to place surveillance alongside other features of the Republican program.

This blog entry concerns Congressional oversight of US surveillance—wiretaps, intercepts, tracking, recording, mining public, government, and corporate records. But I begin by returning to a entry I posted to my parallel blog [] in 2006. The distinctions developed there illustrate why the tension between Constitutional guarantees and State surveillance are so vexed, and why the recent initiatives of Senators Ron Wyden and Mark Udall, initiatives I illustrate and follow later in this blog post, are so central to the question of maintaining an effective Republic.


General Michael V. Hayden has been identified by unnamed newspaper sources as a frontrunner to be named Director of Central Intelligence in place of Porter Goss, whose resignation was announced today.

In January 2006 General Hayden advanced a remarkable theory to vitiate the Fourth Amendment of the Constitution and justify unwarranted interception and use of communications to and from “U.S. persons,” principally US citizens. In a speech at the National Press Club [Note 1] General Hayden said, in part:

“Inherent foreign intelligence value is one of the metrics we must use. Let me repeat that: Inherent foreign intelligence value is one of the metrics we must use to ensure that we conform to the Fourth Amendment’s reasonable standard when it comes to protecting the privacy of these kinds of people. ... [T]he standard of what was relevant and valuable, and therefore, what was reasonable, would understandably change, I think, as smoke billowed from two American cities and a Pennsylvania farm field. And we acted accordingly.”

The Fourth Amendment 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.

After General Hayden had delivered his remarks the floor was opened for questions. The following exchange took place between Hayden and Jonathan Landay of Knight-Ridder:

QUESTION: Jonathan Landay with Knight Ridder. I’d like to stay on the same issue, and that had to do with the standard by which you use to target your wiretaps. I’m no lawyer, but my understanding is that the Fourth Amendment of the Constitution specifies that you must have probable cause to be able to do a search that does not violate an American’s right against unlawful searches and seizures. Do you use —

GEN. HAYDEN: No, actually — the Fourth Amendment actually protects all of us against unreasonable search and seizure.

QUESTION: But the —

GEN. HAYDEN: That’s what it says.

QUESTION: But the measure is probable cause, I believe.

GEN. HAYDEN: The amendment says unreasonable search and seizure.

QUESTION: But does it not say probable —

GEN. HAYDEN: No. The amendment says —

QUESTION: The court standard, the legal standard —

GEN. HAYDEN: — unreasonable search and seizure.

QUESTION: The legal standard is probable cause, General. You used the terms just a few minutes ago, “We reasonably believe.” And a FISA court, my understanding is, would not give you a warrant if you went before them and say “we reasonably believe”; you have to go to the FISA court, or the attorney general has to go to the FISA court and say, “we have probable cause.” And so what many people believe — and I’d like you to respond to this — is that what you’ve actually done is crafted a detour around the FISA court by creating a new standard of “reasonably believe” in place of probable cause because the FISA court will not give you a warrant based on reasonable belief, you have to show probable cause. Could you respond to that, please?

GEN. HAYDEN: Sure. I didn’t craft the authorization. I am responding to a lawful order. All right? The attorney general has averred to the lawfulness of the order. Just to be very clear — and believe me, if there’s any amendment to the Constitution that employees of the National Security Agency are familiar with, it’s the Fourth. And it is a reasonableness standard in the Fourth Amendment. And so what you’ve raised to me —and I’m not a lawyer, and don’t want to become one — what you’ve raised to me is, in terms of quoting the Fourth Amendment, is an issue of the Constitution. The constitutional standard is “reasonable.” And we believe — I am convinced that we are lawful because what it is we’re doing is reasonable.

From General Hayden’s reading of the Fourth Amendment it follows that the State must seek a search warrant only when it proposes an unreasonable search. Reductio ad absurdum.

Or we could ask how ‘reasonableness’ is established, and how the issue is resolved if the State’s claim to ‘reasonableness’ of a specific search—here a program of interceptions—is contested. General Hayden’s position is that he, as Director of NSA, determined ‘reasonableness’; that the program was and ought to have remained secret; and that therefore only those who were properly privy to the secret could have contested it, and then only within the limited circle of those entitled to the secret. Hence Congressional oversight or appeal to the Courts is precluded, unless someone who has learned about the secret intercept program goes public.

General Hayden’s position also neglects the fact that there is law—an Act of Congress—which expressly prohibits what he chose to do as Director of the NSA and defended in January as Principal Deputy Director of National Intelligence.

USC Title 50 § 1802(a)(1) authorizes warrantless electronic surveillance to acquire foreign intelligence information, subject to some conditions, provided “there is no substantial likelihood that the surveillance will acquire the contents of the communication to which a United States person is a party;” [Note 2] [This distinguishes “content” from facts that might be gathered about a transaction.] Note that one US person is enough. Title 18 § 2511 (2)(f) states in part that “the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance ... and the interception of domestic wire, oral, and electronic communications may be conducted.” One term, setting scope, is domestic. For domestic surveillance FISA provides the “exclusive means”. If domestic surveillance does not follow the terms of the FISA Act it is illegal. Of course, as everyone including the chairman and ranking member of the Senate Judiciary Committee has said, we don’t know exactly what NSA did, because they won’t say. Secret.

We can, however, work General Hayden’s language a bit further. Not every person in the United States is a “United States person”, despite General Hayden’s attempt to convince his audience that any terrorist who stepped across the border would become protected from surveillance. In General Hayden’s words “And by the way, ‘U.S. person’ routinely includes anyone in the United States, citizen or not.” But 50 USC § 1801(i) defines a “United States person” as “a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 1101(a)(20) of Title 8)” and further defined associations and corporations. [Note 3] “So, for example,” Hayden continues, “because they were in the United States—and we did not know anything more—Mohamed Atta and his fellow 18 hijackers would have been presumed to have been protected person, U.S. persons, by NSA prior to 9/11.” But not thereafter? What General Hayden does not put on the table is that the law does not ban intercepts but distinguishes those intercepts which may be made without warrant, with Executive approval from those which may only be undertaken pursuant to court-issued warrant, subject to the conditions stipulated in law. The plain meaning of General Hayden’s subsequent lines is that the communications of US persons are intercepted and judged, despite the law. “If the U.S. person information isn’t relevant, the data is suppressed.”

Whether General Hayden is actually nominated to succeed Porter Goss as CIA Director or not, the claim that the Executive can undertake warrantless interception whenever it says that doing so is ‘reasonable’ is pernicious and should be confronted head on. Hayden’s remaining as Principal Deputy Director of National Intelligence after his January 23rd remarks is further evidence of problems which few Congressional Republicans, and no one in the White House, seems inclined or ready to address.

With some Libertarian exceptions, Republicans rarely challenge extension of Federal authority to intrude on privacy rights or Fourth Amendment protections against ‘unreasonable search and seizure’. Having championed broader powers of interception and surveillance, they remain largely silent even when their Democratic colleagues in Congress press for an understanding of what is done and under what authority.

Consider this exchange, prompted by a letter two Democratic senators, Ron Wyden (Oregon) and Mark Udall (Colorado), had written to James Clapper, Director of National Intelligence, asking “whether the NSA and CIA have the authority to collect the geolocation information of American citizens for intelligence purposes.” At a Senate hearing the general counsel of the CIA, asked this, replied that “[t]here are certain circumstances where that authority may exist” and said the intelligence community was readying a reply.[Note 4] Senator Wyden in May 2011 warned senators against unconsidered extension of Patriot Act provisions. [Note 5] He very carefully framed his remarks around the public and the Congress’ right to know the law and how the intelligence community interpreted it, and not as a subject of partisan difference. He suspects that there could be secret interpretations of the laws governing surveillance. But I am free to say that the Republican Party’s silence is consistent with it’s long-standing effort to be identified with ‘national security’ and to bash Democrats, whatever the facts, as inadequately attentive to national security. [Note 6] The NSA reply, while giving every appearance of cooperation, concludes that “it is not reasonably possible to identify the number of people located in the United States whose communications may have been reviewed under the authority of the [FISA Amendments Act].” [Note 7]

Excerpt from Senator Wyden’s remarks to the Senate [Note 8] on 26 May 2011:

[T]he law itself must always be public. Government officials must not be allowed to fall into the trap of secretly reinterpreting the law in a way that creates a gap between what the public thinks the law says and what the government secretly claims that it says. Any time that they do so they are violating the public’s trust. Furthermore, allowing a gap of this nature to develop is extremely short-sighted. Both history and logic should make it clear that secret interpretations of the law will not stay secret forever. And as the historical examples that I cited earlier show, when the public eventually finds out that government agencies have been rewriting surveillance laws in secret, the result is invariably a backlash and an erosion of public confidence in these government agencies.

Let me be clear: I think that is a big problem. ...

American laws shouldn’t be public only when government officials think it’s convenient. They should be public all the time, and every American citizen should be able to find out what their government thinks those laws mean.

Earlier this week I filed an amendment, along with my colleague from the Intelligence Committee, Senator Mark Udall, that would require the Attorney General to publicly disclose the United States Government’s official interpretation of the USA Patriot Act. Our amendment specifically states that the Attorney General should not describe any particular intelligence collection programs or activities, but that he should “fully describe the legal interpretation and analysis necessary to understand the United States Government’s official interpretation” of the law. This morning we reached an agreement with the Chair of the Intelligence Committee, Senator Feinstein, who has committed to hold a hearing on this issue next month. Senator Udall and I will work to address this secret law problem in the committee hearing and subsequent deliberations, and if we don’t get results there then we will return to the floor and offer this amendment again on different legislation.

But while we intend to keep fighting for openness and honesty, as of today the government’s official interpretation of the law is still secret, and the final vote on reauthorizing the Patriot Act is fast approaching. I plan to vote no, because I do not support enacting a long-term reauthorization without significant reforms. And I believe that when more of my colleagues and the American public come to understand how the Patriot Act has actually been interpreted in secret, they will insist on significant reforms too.

Design Problem

How would you free the Congress from the maze within which it is confounded? Some Senators believe that the Congress and public should be told enough about the aims and controls governing surveillance to judge whether guarantees of privacy and security from ‘unreasonable search and seizure’ are observed. But successive Executive Branch policy has been that very little can be told to the public. Can you reconcile this tension?

The Installed Solutions

Several devices are used to try to square this circle. Members of the Select Committee on Intelligence are told, subject to their binding commitment not to reveal what they learn to the unauthorised, including most members of Congress, what the NSA deems sharable and sufficient. So Congress, in the form of a handful of members, is ‘informed and consulted’. A second device is to say—and it has been legislated and written into the US Code—that if NSA happens to stumble across communications it ought not to be reading, then ‘minimization’ measures will be taken to achieve something akin to never having seen the communication at all.


[Note 1]:  Remarks by General Michael V. Hayden, Principal Deputy Director of National Intelligence and Former Director of the National Security Agency, Address to the National Press Club, “What American Intelligence & Especially the NSA Have Been Doing to Defend the Nation,” Natonal Press Club, Washington, D. C., January 23 2006.

[Note 2]: [Note this corrects an error in the original 2006 post, which referred to §1809. The correct section is §1802.]

[Note 3]:  And the Congressional Research Service called attention to this definition in Elizabeth B. Basan, “The Foreign Intelligence Surveillance Act: An Overview of the Statutory Framework and Recent Judicial Decisions,” 22 September 2004, CRS Report RL30465, p. 11 note.

[Note 4]:  Jennifer Valentino-DeVries, “Lawyer Questioned Over Cellphone Location Tracking of Americans,” The Wall Street Journal, 26 July 2011. General counsel Matthew Olsen, appearing before a hearing by the Senate Select Committee on Intelligence on his confirmation to be head of the National Terrorism Center, had been asked repeatedly by Senator Wyden whether the government had authority to “use cell site data to track the location of Americans inside the country.”

[Note 5]:  2. Stephen Schwartz brought to my attention this press release from Senator Wyden’s office. , which contains the text of Senator Wyden’s speech, as prepared, on the Senate floor, 26 May 2011.

[Note 6]:  Remarks by the Republican chairman of the House Armed Services Strategic Forces Subcommittee, Michael Turner, on 26 July 2011, cast Obama’s push to put nuclear weapon abolition on the agenda in just that negative light. Turner said “it seems a misguided priority to focus on disarmament, and U.S. disarmament in particular, when the conditions that might permit it don’t exist.”  Jack Torry, “Rep. Turner warns against cuts in nuclear arsenal:
Congressman backs $85 billion upgrade to weapons system,” Dayton Daily News, 27 July 2011.

[Note 7:]  Associated Press, “US Cannot Say How Many Had Communications Watched,” The New York Times online, 28 July 2011. Full text of NSA reply:

[Note 8]: , which contains the text of Senator Wyden’s speech, as prepared, on the Senate floor, 26 May 2011.


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