Geoffrey R. Stone's Blog, page 8
December 25, 2013
The NSA's Telephone Meta-data Program: Part I
In my last post I explained a bit about what it was like to serve as one of the five members of the President's Review Group that was charged this fall with the responsibility of making recommendations about NSA surveillance and related issues. At the end of that post, I said I would follow-up several more essays examining the reasoning beyond some of the Review Group's 46 recommendations. In this post, I address the NSA's bulk telephony meta-data program, which has received so much attention in recent months.
In the aftermath of the September 11 terrorist attacks, Congress made several significant changes to the Foreign Intelligence Surveillance Act. Among the most important was the addition of section 215, which authorized the Foreign Intelligence Surveillance Court (the FISC) to issue orders directing individuals and organizations to turn over to the government "tangible things including books, records, papers, documents, and other items" upon a finding by the FISC that the government has "reasonable grounds to believe that the tangible objects sought are relevant" to an investigation intended to protect the nation "against international terrorism."
On its face, there was nothing exceptional about section 215. The government has always been able to use subpoenas to compel individuals or businesses to turn over documents and other objects in the course of criminal investigations. Section 215 essentially extended the traditional subpoena power to the foreign intelligence context. Because foreign intelligence investigations are typically classified, it was necessary to obtain these orders from the FISC, rather than from ordinary federal courts, because the FISC is designed specifically to deal with classified matters.
As envisioned, section 215 enabled the government to obtain an order from the FISC directing a credit card company, for example, to turn over to the government the credit card records of an individual reasonably believed to be planning or participating in terrorist activities. Similarly, upon such a showing, the government could obtain an order from the FISC requiring the suspected terrorist's telephone company to turn over his phone records.
In May 2006, the FISC adopted a much broader and unprecedented interpretation of section 215. It was that decision that led to the collection of bulk telephony meta-data. In that decision, and in a succession of subsequent decisions, FISC judges have issued orders under section 215 directing specified telephone service companies to turn over to the NSA, "on an ongoing daily basis," huge quantities of telephone meta-data involving the phone records of millions of Americans, none of whom are themselves suspected of anything.
The meta-data at issue in the section 215 program includes information about phone numbers (both called and received), but it does not include any information about the content of the calls or the identities of the participants. Once the NSA has the meta-data in its system, it has been authorized by the FISC to retain it for five years, after which it must destroy the meta-data on a rolling basis.
Why does the NSA want this information? The FISC authorized the collection of bulk telephony meta-data in reliance on the NSA's assertion that having access to these call records "is vital to NSA's counterterrorism intelligence." The NSA explained that access to such meta-data would enable its analysts "continuously to keep track of" the activities, operatives, and plans of specific foreign terrorist organizations who "disguise and obscure their communications."
Under rules approved by the FISC, the NSA can legally access the bulk telephony meta-data only when its analysts find that "there are facts giving rise to a reasonable, articulable suspicion" (RAS) that a particular telephone number "is associated with" a foreign terrorist organization.
In 2012, NSA queried 288 phone numbers, known as "seeds," each of which was certified by NSA analysts to meet the RAS standard. When a seed phone number is queried, the NSA derives from the database a list of every telephone number that either called or was called by the seed phone number in the past five years. This is known as the "first hop." For example, if the seed phone number was in contact with 100 different phone numbers in the past five years, the NSA would obtain a list of those 100 phone numbers.
The NSA then seeks to determine whether there is reason to believe that any of those 100 numbers are also associated with a foreign terrorist organization. If so, the query has uncovered a possible connection to a potential terrorist network that merits further investigation. Conversely, if none of the 100 numbers is believed to be associated with possible terrorist activity, there is less reason to be concerned that the potential terrorist is in contact with co-conspirators inside the United States.
In most cases, the NSA makes a second "hop." That is, it queries the database to obtain a list of every phone number that called or was called by the 100 numbers it obtained in the first hop. Thus, if we assume that the average telephone number calls or is called by 100 phone numbers over the course of a five-year period, then the second hop will produce a list of 10,000 phone numbers (100 x 100) that are two steps away from the seed number that is reasonably believed to be associated with a foreign terrorist organization. If any of those 10,000 phone numbers is also thought to be associated with a terrorist organization, that too is potentially useful information. In a very few instances, the NSA makes a third "hop," which would expand the list of numbers to approximately one million (100 x 100 x 100).
In 2012, NSA's 288 queries resulted in a total of twelve "tips" to the FBI that called for further investigation. If the FBI investigates a telephone number or other identifier tipped to it through the section 215 program, it must rely on other information to identify the individual subscribers of any of the numbers retrieved. If, through further investigation, the FBI is able to develop probable cause to believe that an identifier in the United States is conspiring with a person engaged in terrorist activity, it can then seek an order from the FISC authorizing it to intercept the contents of future communications to and from that telephone number.
The NSA reports that, on at least a few occasions, information derived from the section 215 bulk telephony meta-data program has contributed to its efforts to prevent possible terrorist attacks, either in the United States or somewhere else in the world. After examining the evidence provided by the NSA, the Review Group concluded that the information obtained through the section 215 telephony meta-data program had not proved necessary to the prevention of any planned terrorist attack since the program's inception in 2006. At the same time, though, it is certainly possible to imagine a situation in which the section 215 program might produce highly valuable information.
In my next post, I will explore the Review Group's reasoning and recommendations concerning the future of this program. What do you think so far? What are the best arguments for and against this program?
In the aftermath of the September 11 terrorist attacks, Congress made several significant changes to the Foreign Intelligence Surveillance Act. Among the most important was the addition of section 215, which authorized the Foreign Intelligence Surveillance Court (the FISC) to issue orders directing individuals and organizations to turn over to the government "tangible things including books, records, papers, documents, and other items" upon a finding by the FISC that the government has "reasonable grounds to believe that the tangible objects sought are relevant" to an investigation intended to protect the nation "against international terrorism."
On its face, there was nothing exceptional about section 215. The government has always been able to use subpoenas to compel individuals or businesses to turn over documents and other objects in the course of criminal investigations. Section 215 essentially extended the traditional subpoena power to the foreign intelligence context. Because foreign intelligence investigations are typically classified, it was necessary to obtain these orders from the FISC, rather than from ordinary federal courts, because the FISC is designed specifically to deal with classified matters.
As envisioned, section 215 enabled the government to obtain an order from the FISC directing a credit card company, for example, to turn over to the government the credit card records of an individual reasonably believed to be planning or participating in terrorist activities. Similarly, upon such a showing, the government could obtain an order from the FISC requiring the suspected terrorist's telephone company to turn over his phone records.
In May 2006, the FISC adopted a much broader and unprecedented interpretation of section 215. It was that decision that led to the collection of bulk telephony meta-data. In that decision, and in a succession of subsequent decisions, FISC judges have issued orders under section 215 directing specified telephone service companies to turn over to the NSA, "on an ongoing daily basis," huge quantities of telephone meta-data involving the phone records of millions of Americans, none of whom are themselves suspected of anything.
The meta-data at issue in the section 215 program includes information about phone numbers (both called and received), but it does not include any information about the content of the calls or the identities of the participants. Once the NSA has the meta-data in its system, it has been authorized by the FISC to retain it for five years, after which it must destroy the meta-data on a rolling basis.
Why does the NSA want this information? The FISC authorized the collection of bulk telephony meta-data in reliance on the NSA's assertion that having access to these call records "is vital to NSA's counterterrorism intelligence." The NSA explained that access to such meta-data would enable its analysts "continuously to keep track of" the activities, operatives, and plans of specific foreign terrorist organizations who "disguise and obscure their communications."
Under rules approved by the FISC, the NSA can legally access the bulk telephony meta-data only when its analysts find that "there are facts giving rise to a reasonable, articulable suspicion" (RAS) that a particular telephone number "is associated with" a foreign terrorist organization.
In 2012, NSA queried 288 phone numbers, known as "seeds," each of which was certified by NSA analysts to meet the RAS standard. When a seed phone number is queried, the NSA derives from the database a list of every telephone number that either called or was called by the seed phone number in the past five years. This is known as the "first hop." For example, if the seed phone number was in contact with 100 different phone numbers in the past five years, the NSA would obtain a list of those 100 phone numbers.
The NSA then seeks to determine whether there is reason to believe that any of those 100 numbers are also associated with a foreign terrorist organization. If so, the query has uncovered a possible connection to a potential terrorist network that merits further investigation. Conversely, if none of the 100 numbers is believed to be associated with possible terrorist activity, there is less reason to be concerned that the potential terrorist is in contact with co-conspirators inside the United States.
In most cases, the NSA makes a second "hop." That is, it queries the database to obtain a list of every phone number that called or was called by the 100 numbers it obtained in the first hop. Thus, if we assume that the average telephone number calls or is called by 100 phone numbers over the course of a five-year period, then the second hop will produce a list of 10,000 phone numbers (100 x 100) that are two steps away from the seed number that is reasonably believed to be associated with a foreign terrorist organization. If any of those 10,000 phone numbers is also thought to be associated with a terrorist organization, that too is potentially useful information. In a very few instances, the NSA makes a third "hop," which would expand the list of numbers to approximately one million (100 x 100 x 100).
In 2012, NSA's 288 queries resulted in a total of twelve "tips" to the FBI that called for further investigation. If the FBI investigates a telephone number or other identifier tipped to it through the section 215 program, it must rely on other information to identify the individual subscribers of any of the numbers retrieved. If, through further investigation, the FBI is able to develop probable cause to believe that an identifier in the United States is conspiring with a person engaged in terrorist activity, it can then seek an order from the FISC authorizing it to intercept the contents of future communications to and from that telephone number.
The NSA reports that, on at least a few occasions, information derived from the section 215 bulk telephony meta-data program has contributed to its efforts to prevent possible terrorist attacks, either in the United States or somewhere else in the world. After examining the evidence provided by the NSA, the Review Group concluded that the information obtained through the section 215 telephony meta-data program had not proved necessary to the prevention of any planned terrorist attack since the program's inception in 2006. At the same time, though, it is certainly possible to imagine a situation in which the section 215 program might produce highly valuable information.
In my next post, I will explore the Review Group's reasoning and recommendations concerning the future of this program. What do you think so far? What are the best arguments for and against this program?
December 24, 2013
The NSA's Telephone Meta-data Program: Part I
In my last post http://www.huffingtonpost.com/geoffrey-r-stone/inside-the-presidents-rev_b_4485016.html I explained a bit about what it was like to serve as one of the five members of the President's Review Group that was charged this fall with the responsibility of making recommendations about NSA surveillance and related issues. At the end of that post, I said I would follow-up several more essays examining the reasoning beyond some of the Review Group's forty-six recommendations. In this post, I address the NSA's bulk telephony meta-data program, which has received so much attention in recent months.
In the aftermath of the September 11 terrorist attacks, Congress made several significant changes to the Foreign Intelligence Surveillance Act. Among the most important was the addition of section 215, which authorized the Foreign Intelligence Surveillance Court (the FISC) to issue orders directing individuals and organizations to turn over to the government "tangible things including books, records, papers, documents, and other items" upon a finding by the FISC that the government has "reasonable grounds to believe that the tangible objects sought are relevant" to an investigation intended to protect the nation "against international terrorism."
On its face, there was nothing exceptional about section 215. The government has always been able to use subpoenas to compel individuals or businesses to turn over documents and other objects in the course of criminal investigations. Section 215 essentially extended the traditional subpoena power to the foreign intelligence context. Because foreign intelligence investigations are typically classified, it was necessary to obtain these orders from the FISC, rather than from ordinary federal courts, because the FISC is designed specifically to deal with classified matters.
As envisioned, section 215 enabled the government to obtain an order from the FISC directing a credit card company, for example, to turn over to the government the credit card records of an individual reasonably believed to be planning or participating in terrorist activities. Similarly, upon such a showing, the government could obtain an order from the FISC requiring the suspected terrorist's telephone company to turn over his phone records.
In May 2006, the FISC adopted a much broader and unprecedented interpretation of section 215. It was that decision that led to the collection of bulk telephony meta-data. In that decision, and in a succession of subsequent decisions, FISC judges have issued orders under section 215 directing specified telephone service companies to turn over to the NSA, "on an ongoing daily basis," huge quantities of telephone meta-data involving the phone records of millions of Americans, none of whom are themselves suspected of anything.
The meta-data at issue in the section 215 program includes information about phone numbers (both called and received), but it does not include any information about the content of the calls or the identities of the participants. Once the NSA has the meta-data in its system, it has been authorized by the FISC to retain it for five years, after which it must destroy the meta-data on a rolling basis.
Why does the NSA want this information? The FISC authorized the collection of bulk telephony meta-data in reliance on the NSA's assertion that having access to these call records "is vital to NSA's counterterrorism intelligence." The NSA explained that access to such meta-data would enable its analysts "continuously to keep track of" the activities, operatives, and plans of specific foreign terrorist organizations who "disguise and obscure their communications."
Under rules approved by the FISC, the NSA can legally access the bulk telephony meta-data only when its analysts find that "there are facts giving rise to a reasonable, articulable suspicion" (RAS) that a particular telephone number "is associated with" a foreign terrorist organization.
In 2012, NSA queried 288 phone numbers, known as "seeds," each of which was certified by NSA analysts to meet the RAS standard. When a seed phone number is queried, the NSA derives from the database a list of every telephone number that either called or was called by the seed phone number in the past five years. This is known as the "first hop." For example, if the seed phone number was in contact with 100 different phone numbers in the past five years, the NSA would obtain a list of those 100 phone numbers.
The NSA then seeks to determine whether there is reason to believe that any of those 100 numbers are also associated with a foreign terrorist organization. If so, the query has uncovered a possible connection to a potential terrorist network that merits further investigation. Conversely, if none of the 100 numbers is believed to be associated with possible terrorist activity, there is less reason to be concerned that the potential terrorist is in contact with co-conspirators inside the United States.
In most cases, the NSA makes a second "hop." That is, it queries the database to obtain a list of every phone number that called or was called by the 100 numbers it obtained in the first hop. Thus, if we assume that the average telephone number calls or is called by 100 phone numbers over the course of a five-year period, then the second hop will produce a list of 10,000 phone numbers (100 x 100) that are two steps away from the seed number that is reasonably believed to be associated with a foreign terrorist organization. If any of those 10,000 phone numbers is also thought to be associated with a terrorist organization, that too is potentially useful information. In a very few instances, the NSA makes a third "hop," which would expand the list of numbers to approximately one million (100 x 100 x 100).
In 2012, NSA's 288 queries resulted in a total of twelve "tips" to the FBI that called for further investigation. If the FBI investigates a telephone number or other identifier tipped to it through the section 215 program, it must rely on other information to identify the individual subscribers of any of the numbers retrieved. If, through further investigation, the FBI is able to develop probable cause to believe that an identifier in the United States is conspiring with a person engaged in terrorist activity, it can then seek an order from the FISC authorizing it to intercept the contents of future communications to and from that telephone number.
The NSA reports that, on at least a few occasions, information derived from the section 215 bulk telephony meta-data program has contributed to its efforts to prevent possible terrorist attacks, either in the United States or somewhere else in the world. After examining the evidence provided by the NSA, the Review Group concluded that the information obtained through the section 215 telephony meta-data program had not proved necessary to the prevention of any planned terrorist attack since the program's inception in 2006. At the same time, though, it is certainly possible to imagine a situation in which the section 215 program might produce highly valuable information.
In my next post, I will explore the Review Group's reasoning and recommendations concerning the future of this program. What do you think so far? What are the best arguments for and against this program?
In the aftermath of the September 11 terrorist attacks, Congress made several significant changes to the Foreign Intelligence Surveillance Act. Among the most important was the addition of section 215, which authorized the Foreign Intelligence Surveillance Court (the FISC) to issue orders directing individuals and organizations to turn over to the government "tangible things including books, records, papers, documents, and other items" upon a finding by the FISC that the government has "reasonable grounds to believe that the tangible objects sought are relevant" to an investigation intended to protect the nation "against international terrorism."
On its face, there was nothing exceptional about section 215. The government has always been able to use subpoenas to compel individuals or businesses to turn over documents and other objects in the course of criminal investigations. Section 215 essentially extended the traditional subpoena power to the foreign intelligence context. Because foreign intelligence investigations are typically classified, it was necessary to obtain these orders from the FISC, rather than from ordinary federal courts, because the FISC is designed specifically to deal with classified matters.
As envisioned, section 215 enabled the government to obtain an order from the FISC directing a credit card company, for example, to turn over to the government the credit card records of an individual reasonably believed to be planning or participating in terrorist activities. Similarly, upon such a showing, the government could obtain an order from the FISC requiring the suspected terrorist's telephone company to turn over his phone records.
In May 2006, the FISC adopted a much broader and unprecedented interpretation of section 215. It was that decision that led to the collection of bulk telephony meta-data. In that decision, and in a succession of subsequent decisions, FISC judges have issued orders under section 215 directing specified telephone service companies to turn over to the NSA, "on an ongoing daily basis," huge quantities of telephone meta-data involving the phone records of millions of Americans, none of whom are themselves suspected of anything.
The meta-data at issue in the section 215 program includes information about phone numbers (both called and received), but it does not include any information about the content of the calls or the identities of the participants. Once the NSA has the meta-data in its system, it has been authorized by the FISC to retain it for five years, after which it must destroy the meta-data on a rolling basis.
Why does the NSA want this information? The FISC authorized the collection of bulk telephony meta-data in reliance on the NSA's assertion that having access to these call records "is vital to NSA's counterterrorism intelligence." The NSA explained that access to such meta-data would enable its analysts "continuously to keep track of" the activities, operatives, and plans of specific foreign terrorist organizations who "disguise and obscure their communications."
Under rules approved by the FISC, the NSA can legally access the bulk telephony meta-data only when its analysts find that "there are facts giving rise to a reasonable, articulable suspicion" (RAS) that a particular telephone number "is associated with" a foreign terrorist organization.
In 2012, NSA queried 288 phone numbers, known as "seeds," each of which was certified by NSA analysts to meet the RAS standard. When a seed phone number is queried, the NSA derives from the database a list of every telephone number that either called or was called by the seed phone number in the past five years. This is known as the "first hop." For example, if the seed phone number was in contact with 100 different phone numbers in the past five years, the NSA would obtain a list of those 100 phone numbers.
The NSA then seeks to determine whether there is reason to believe that any of those 100 numbers are also associated with a foreign terrorist organization. If so, the query has uncovered a possible connection to a potential terrorist network that merits further investigation. Conversely, if none of the 100 numbers is believed to be associated with possible terrorist activity, there is less reason to be concerned that the potential terrorist is in contact with co-conspirators inside the United States.
In most cases, the NSA makes a second "hop." That is, it queries the database to obtain a list of every phone number that called or was called by the 100 numbers it obtained in the first hop. Thus, if we assume that the average telephone number calls or is called by 100 phone numbers over the course of a five-year period, then the second hop will produce a list of 10,000 phone numbers (100 x 100) that are two steps away from the seed number that is reasonably believed to be associated with a foreign terrorist organization. If any of those 10,000 phone numbers is also thought to be associated with a terrorist organization, that too is potentially useful information. In a very few instances, the NSA makes a third "hop," which would expand the list of numbers to approximately one million (100 x 100 x 100).
In 2012, NSA's 288 queries resulted in a total of twelve "tips" to the FBI that called for further investigation. If the FBI investigates a telephone number or other identifier tipped to it through the section 215 program, it must rely on other information to identify the individual subscribers of any of the numbers retrieved. If, through further investigation, the FBI is able to develop probable cause to believe that an identifier in the United States is conspiring with a person engaged in terrorist activity, it can then seek an order from the FISC authorizing it to intercept the contents of future communications to and from that telephone number.
The NSA reports that, on at least a few occasions, information derived from the section 215 bulk telephony meta-data program has contributed to its efforts to prevent possible terrorist attacks, either in the United States or somewhere else in the world. After examining the evidence provided by the NSA, the Review Group concluded that the information obtained through the section 215 telephony meta-data program had not proved necessary to the prevention of any planned terrorist attack since the program's inception in 2006. At the same time, though, it is certainly possible to imagine a situation in which the section 215 program might produce highly valuable information.
In my next post, I will explore the Review Group's reasoning and recommendations concerning the future of this program. What do you think so far? What are the best arguments for and against this program?
December 21, 2013
Inside the President's Review Group: Protecting Security and Liberty
On August 27, President Obama met in the White House Situation Room with the five members of his newly appointed Review Group on Intelligence and Communications Technologies.
The members were Richard Clarke, a former member of the National Security Council; Michael Morell, a former Deputy Director and Acting Director of the Central Intelligence Agency; Cass Sunstein, a former Director of the Office of Information and Regulatory Affairs; Peter Swire, a former Chief Counselor for Privacy in the Office of Management and Budget; and me.
The immediate backdrop for the President's appointment of the Review Group was a series of unauthorized disclosures of classified information involving foreign intelligence surveillance by the National Security Agency. Our charge was to submit a formal report to the President by December 15, 2013, advising him on how the United States can better employ its foreign intelligence surveillance capabilities in a way that effectively protects our national security, while at the same time respecting our deep national commitment to privacy and civil liberties and maintaining public trust in the Intelligence Community.
By the time we delivered our 300 page Report (Liberty and Security in a Changing World) to the President (a day early), we had met with an extraordinary array of individuals and organizations, including not only the President, but also National Security Advisor Susan Rice; NSA Director General Keith Alexander; a dozen members of the Senate and House Intelligence and Judiciary Committees; high-level officials in the NSA, the CIA, and the FBI; representatives of the Departments of State, Defense, Homeland Security, Commerce, and Treasury; the former Chief Judge of the Foreign Intelligence Surveillance Court; representatives of the European Union; representatives of more than twenty-five private organizations ranging from the ACLU, Human Rights Watch, and the Reporters Committee for Freedom of the Press to Google, Facebook, and Yahoo; and many, many more.
All members of the Review Group had "top secret" clearances, and during the course of our work we had full access to highly classified material. Although none of that information appears in our Report, which we were determined to make available to the American people, much of it informed our understanding and our recommendations.
In the most general terms, we concluded that, although the United States and its allies continue to face numerous and serious threats to our national security -- including threats from international terrorism, and although robust foreign intelligence collection continues to be essential if we are to protect ourselves against such threats, we had reached a point where it was necessary to re-calibrate our policies and priorities in order to better preserve our nation's core commitment to the values of personal privacy and individual freedom.
To that end, we recommended to the President 46 specific reforms that, in our judgment, will reinforce our most fundamental values without undermining what the Intelligence Community needs to do to keep our nation safe. Among our recommendations are proposals to eliminate the program in which NSA gathers and stores massive amounts of "meta-data" about the phone calls of Americans; provide greater protection to the legitimate privacy interests of non-Americans; establish a Public Advocate who will represent the interests of privacy and civil liberties in proceedings before the Foreign Intelligence Surveillance Court; require the FBI to obtain a judicial order before using national security letters to obtain information about individuals from third parties, such as telephone companies, banks, and credit card companies; require much greater transparency and public accountability about the operations of unclassified programs; and create a high-level oversight board to review questions of privacy and civil liberties in the realm of foreign intelligence.
Many may wonder: Why did the President feel the need to appoint this Review Group in the first place? After all, there are plenty of officials and agencies in government already that worry over these issues. I do not know the answer, but I can speculate about it.
The use of government surveillance to protect the nation against terrorist attack is deeply polarizing. On the one hand, there are those who fervently defend everything the Intelligence Community does. How, they ask, in the light of 9/11, can anyone want to handcuff the Intelligence Community in its critical effort to protect our nation against potentially catastrophic terrorist attacks? It is reckless and irresponsible, they charge, for anyone to restrain the government from taking every possible measure to help to keep us safe. Have you forgotten the lessons of history?
On the other side, the critics of the NSA and of what they see as rampant and unrestrained government spying charge that any intrusion into individual privacy is a fundamental infringement of core American values. The NSA, they insist, is a rogue agency that is trampling on core American freedoms. No government agency can be trusted! Have you forgotten the lessons of history?
The intense polarization in these positions, so typical of American political discourse today, is destructive of reasoned decision making. I believe the President appointed the Review Group in an effort to cut through the hysterical rhetoric and overblown claims of the competing sides and to get sound and dispassionate guidance on how to think sensibly about these profoundly difficult and important issues.
By bringing together five highly experienced individuals with widely diverse backgrounds, experiences, perspectives and values, the President wanted a clear-eyed, tough-minded, fiercely independent evaluation of what is best for the nation.
And that is what he got. The five of us worked tirelessly to understand the legal principles, the economic ramifications, the privacy and civil liberties consequences, the procedural issues, the foreign relations implications, the technological complexities, and the national security concerns that are implicated by these issues. Not surprisingly, there are no easy answers.
But despite our widely divergent views, approaches and presumptions, the five members of the Review Group unanimously agreed on every one of our 46 recommendations. We were able to do this because of the mutual respect we developed for one another, because of our appreciation of our often divergent perspectives, because we were committed to thinking rigorously, objectively and clearly as a group, and because we were determined to put the facts together with the values in a way that would best serve the needs and interests of the American people - period.
We did not care what the White House wanted, what the Intelligence Community wanted, or what the civil libertarians wanted. We delivered, we believe, what the President wanted: a careful, honest, balanced and independent evaluation of the tough realities of protecting the nation through effective intelligence collection while simultaneously upholding the liberties that are at the very core of our national identity.
In the coming days, I will write additional posts exploring in more detail some of our recommendations and our reasoning. But we wrote our Report not only for the President, but for the American people. If you read it for yourself (a course I encourage), you can find it here.
This piece also appears in the Chicago Tribune.
The members were Richard Clarke, a former member of the National Security Council; Michael Morell, a former Deputy Director and Acting Director of the Central Intelligence Agency; Cass Sunstein, a former Director of the Office of Information and Regulatory Affairs; Peter Swire, a former Chief Counselor for Privacy in the Office of Management and Budget; and me.
The immediate backdrop for the President's appointment of the Review Group was a series of unauthorized disclosures of classified information involving foreign intelligence surveillance by the National Security Agency. Our charge was to submit a formal report to the President by December 15, 2013, advising him on how the United States can better employ its foreign intelligence surveillance capabilities in a way that effectively protects our national security, while at the same time respecting our deep national commitment to privacy and civil liberties and maintaining public trust in the Intelligence Community.
By the time we delivered our 300 page Report (Liberty and Security in a Changing World) to the President (a day early), we had met with an extraordinary array of individuals and organizations, including not only the President, but also National Security Advisor Susan Rice; NSA Director General Keith Alexander; a dozen members of the Senate and House Intelligence and Judiciary Committees; high-level officials in the NSA, the CIA, and the FBI; representatives of the Departments of State, Defense, Homeland Security, Commerce, and Treasury; the former Chief Judge of the Foreign Intelligence Surveillance Court; representatives of the European Union; representatives of more than twenty-five private organizations ranging from the ACLU, Human Rights Watch, and the Reporters Committee for Freedom of the Press to Google, Facebook, and Yahoo; and many, many more.
All members of the Review Group had "top secret" clearances, and during the course of our work we had full access to highly classified material. Although none of that information appears in our Report, which we were determined to make available to the American people, much of it informed our understanding and our recommendations.
In the most general terms, we concluded that, although the United States and its allies continue to face numerous and serious threats to our national security -- including threats from international terrorism, and although robust foreign intelligence collection continues to be essential if we are to protect ourselves against such threats, we had reached a point where it was necessary to re-calibrate our policies and priorities in order to better preserve our nation's core commitment to the values of personal privacy and individual freedom.
To that end, we recommended to the President 46 specific reforms that, in our judgment, will reinforce our most fundamental values without undermining what the Intelligence Community needs to do to keep our nation safe. Among our recommendations are proposals to eliminate the program in which NSA gathers and stores massive amounts of "meta-data" about the phone calls of Americans; provide greater protection to the legitimate privacy interests of non-Americans; establish a Public Advocate who will represent the interests of privacy and civil liberties in proceedings before the Foreign Intelligence Surveillance Court; require the FBI to obtain a judicial order before using national security letters to obtain information about individuals from third parties, such as telephone companies, banks, and credit card companies; require much greater transparency and public accountability about the operations of unclassified programs; and create a high-level oversight board to review questions of privacy and civil liberties in the realm of foreign intelligence.
Many may wonder: Why did the President feel the need to appoint this Review Group in the first place? After all, there are plenty of officials and agencies in government already that worry over these issues. I do not know the answer, but I can speculate about it.
The use of government surveillance to protect the nation against terrorist attack is deeply polarizing. On the one hand, there are those who fervently defend everything the Intelligence Community does. How, they ask, in the light of 9/11, can anyone want to handcuff the Intelligence Community in its critical effort to protect our nation against potentially catastrophic terrorist attacks? It is reckless and irresponsible, they charge, for anyone to restrain the government from taking every possible measure to help to keep us safe. Have you forgotten the lessons of history?
On the other side, the critics of the NSA and of what they see as rampant and unrestrained government spying charge that any intrusion into individual privacy is a fundamental infringement of core American values. The NSA, they insist, is a rogue agency that is trampling on core American freedoms. No government agency can be trusted! Have you forgotten the lessons of history?
The intense polarization in these positions, so typical of American political discourse today, is destructive of reasoned decision making. I believe the President appointed the Review Group in an effort to cut through the hysterical rhetoric and overblown claims of the competing sides and to get sound and dispassionate guidance on how to think sensibly about these profoundly difficult and important issues.
By bringing together five highly experienced individuals with widely diverse backgrounds, experiences, perspectives and values, the President wanted a clear-eyed, tough-minded, fiercely independent evaluation of what is best for the nation.
And that is what he got. The five of us worked tirelessly to understand the legal principles, the economic ramifications, the privacy and civil liberties consequences, the procedural issues, the foreign relations implications, the technological complexities, and the national security concerns that are implicated by these issues. Not surprisingly, there are no easy answers.
But despite our widely divergent views, approaches and presumptions, the five members of the Review Group unanimously agreed on every one of our 46 recommendations. We were able to do this because of the mutual respect we developed for one another, because of our appreciation of our often divergent perspectives, because we were committed to thinking rigorously, objectively and clearly as a group, and because we were determined to put the facts together with the values in a way that would best serve the needs and interests of the American people - period.
We did not care what the White House wanted, what the Intelligence Community wanted, or what the civil libertarians wanted. We delivered, we believe, what the President wanted: a careful, honest, balanced and independent evaluation of the tough realities of protecting the nation through effective intelligence collection while simultaneously upholding the liberties that are at the very core of our national identity.
In the coming days, I will write additional posts exploring in more detail some of our recommendations and our reasoning. But we wrote our Report not only for the President, but for the American people. If you read it for yourself (a course I encourage), you can find it here.
This piece also appears in the Chicago Tribune.
November 21, 2013
The Nuclear Option: A Sad Day for America
Why did the Democrats in the Senate enact the so-called "nuclear option"? In the Senate, unlike the House of Representatives, a minority of Senators can prevent a vote on proposed legislation, presidential nominations or other legislative action by engaging in a filibuster. Traditionally, as in the wonderful James Stewart movie Mr. Smith Goes to Washington, this meant that a senator could "hold the floor" of the Senate and prevent a vote on a pending matter for as long as he could keep talking. The filibuster was perhaps most famously used by Southern Senators to block civil rights legislation.
In more recent years, the Senate amended its rules to permit a Senator to effect a filibuster without actually having to do the talking. For all practical purposes, all a Senator now has to do to implement a filibuster is to say that he is filibustering. The only way to end a filibuster is by a cloture vote - that is, a vote to "close off" the filibuster and let the matter come to a vote. In the modern era, 60 votes (out of a possible 100) are required for cloture. Thus, a Senator can now prevent the Senate from acting on proposed legislation, presidential nominations or other legislative action as long as there aren't 60 members of the Senate willing to invoke cloture.
Although the filibuster obviously can be abused, it has traditionally served a useful role. Fundamentally, it was designed to permit a minority of the members of the Senate who care deeply about a particular issue in extraordinary circumstances to prevent the majority from having their way. It is one of the many checks-and-balances in the American constitutional system designed to protect minority interests.
In recent years, however, members of the Senate have increasingly yielded to the temptation to resort to the filibuster to block unexceptional legislation, nominations and other matters. Although both parties have tended to use the filibuster more often than in the past, its use by Republican Senators has exploded since the election of Barack Obama.
In the 60 years since Dwight Eisenhower was elected president, members of the Senate used the filibuster to block the confirmation of presidential nominations a total of 92 times. Of those 92 blocked nominations, 72 - or 78% - were nominations made by President Barack Obama. Put differently, in the preceding 55 years, there was an average of .3 filibusters per year to block a presidential nomination. During the presidency of George W. Bush, the Democrats used the filibuster a total of 7 times to block a presidential nomination, or an average of less than once per year.
Since President Obama took office, Republicans have used the filibuster an average of 14.4 times per year to block his nominations. That is 50 times higher than the 1952-2008 average, and more than 14 times higher than during the administration of President George W. Bush. As Senate Majority Leader Harry Reid noted today, in the history of the United States, presidential nominations of federal district court judges have been filibustered a total of 23 times. Twenty of those 23 filibusters have been by Republicans during the presidency of Barack Obama.
The plain and simple fact is that the Republicans in the Senate are completely out of control. Republicans who now complain that the Democrats have suddenly changed the rules and being completely disingenuous. Relative to 220 years of history, they have changed the rules and left Democrats with no real choice but to restore some sense of order. Like their decision to shut down the government in an effort to coerce the nation into changing a law they could not legally change, the Republicans' abuse of the filibuster has been a lawless distortion of the American system of governance.
It is a shame that the Republicans brought things to this pass. The filibuster is a useful tool to prevent a president whose party controls the Senate from pushing through the nomination of an appointee who is incompetent, who lacks integrity or whose views are truly outside the "mainstream" of respectable opinion. That we have now lost that important safeguard is deeply unfortunate. But the responsibility for this development rests squarely on the shoulders of the Republican members of the Senate, who have brought this not only upon themselves, but upon the nation. It is a sad day for America.
In more recent years, the Senate amended its rules to permit a Senator to effect a filibuster without actually having to do the talking. For all practical purposes, all a Senator now has to do to implement a filibuster is to say that he is filibustering. The only way to end a filibuster is by a cloture vote - that is, a vote to "close off" the filibuster and let the matter come to a vote. In the modern era, 60 votes (out of a possible 100) are required for cloture. Thus, a Senator can now prevent the Senate from acting on proposed legislation, presidential nominations or other legislative action as long as there aren't 60 members of the Senate willing to invoke cloture.
Although the filibuster obviously can be abused, it has traditionally served a useful role. Fundamentally, it was designed to permit a minority of the members of the Senate who care deeply about a particular issue in extraordinary circumstances to prevent the majority from having their way. It is one of the many checks-and-balances in the American constitutional system designed to protect minority interests.
In recent years, however, members of the Senate have increasingly yielded to the temptation to resort to the filibuster to block unexceptional legislation, nominations and other matters. Although both parties have tended to use the filibuster more often than in the past, its use by Republican Senators has exploded since the election of Barack Obama.
In the 60 years since Dwight Eisenhower was elected president, members of the Senate used the filibuster to block the confirmation of presidential nominations a total of 92 times. Of those 92 blocked nominations, 72 - or 78% - were nominations made by President Barack Obama. Put differently, in the preceding 55 years, there was an average of .3 filibusters per year to block a presidential nomination. During the presidency of George W. Bush, the Democrats used the filibuster a total of 7 times to block a presidential nomination, or an average of less than once per year.
Since President Obama took office, Republicans have used the filibuster an average of 14.4 times per year to block his nominations. That is 50 times higher than the 1952-2008 average, and more than 14 times higher than during the administration of President George W. Bush. As Senate Majority Leader Harry Reid noted today, in the history of the United States, presidential nominations of federal district court judges have been filibustered a total of 23 times. Twenty of those 23 filibusters have been by Republicans during the presidency of Barack Obama.
The plain and simple fact is that the Republicans in the Senate are completely out of control. Republicans who now complain that the Democrats have suddenly changed the rules and being completely disingenuous. Relative to 220 years of history, they have changed the rules and left Democrats with no real choice but to restore some sense of order. Like their decision to shut down the government in an effort to coerce the nation into changing a law they could not legally change, the Republicans' abuse of the filibuster has been a lawless distortion of the American system of governance.
It is a shame that the Republicans brought things to this pass. The filibuster is a useful tool to prevent a president whose party controls the Senate from pushing through the nomination of an appointee who is incompetent, who lacks integrity or whose views are truly outside the "mainstream" of respectable opinion. That we have now lost that important safeguard is deeply unfortunate. But the responsibility for this development rests squarely on the shoulders of the Republican members of the Senate, who have brought this not only upon themselves, but upon the nation. It is a sad day for America.
November 2, 2013
The Difference Between Conservative and Liberal Justices
This is just a tidbit, but it is revealing. Each Justice of the United States Supreme Court has four law clerks. Law clerks are recent law school graduates who serve for one year as a legal assistant to a Supreme Court Justice. Law clerks are very important to the work of the Court. In each chamber, the Justice and the four clerks form a close-knit intellectual family. It is with their law clerks that Justices are able to speak openly and to engage in a candid give-and-take, testing ideas, theories and approaches as they consider the merits of each case. Moreover, in most chambers the law clerks play a central role in preparing drafts of a Justice's opinions.
I know this not only from my students who have gone on over the years to clerk for one or another of the Justices, and not only from my many conversations with individual Justices, but also from personal experience, because I had the great privilege of serving as a law clerk to Justice William J. Brennan, Jr. during the Court's 1972-1973 Term.
I was curious about how the current Justices select their clerks. All Supreme Court law clerks these days spend at least one year before clerking on the Supreme Court as a law clerk to a lower court judge, usually a judge on a United States Court of Appeals. In this way, they gain useful experience to prepare them for the task ahead.
Here is what I learned. Of the 20 law clerks appointed this Term by the five conservative Justices -- Roberts, Scalia, Kennedy, Thomas and Alito, 18 of the 20 -- or an astonishing 90 percent -- clerked last year for a Republican-appointed judge. Of the 16 law clerks appointed this Term by the four more liberal Justices -- Ginsburg, Breyer, Sotomayor and Kagan, only 9 of the 16 -- or 56 percent -- clerked last year for a Democratic-appointed judge.
What this reveals -- disappointingly, I might add -- is that the conservative Justices are determined to spend their time with pre-cleared conservative law clerks. Indeed, Chief Justice Roberts, Justice Scalia and Justice Alito hired as their law clerks this year only individuals who had clerked last year for Republican-appointed judges. Whereas the more liberal justices were clearly interested in exposing themselves to a range of different viewpoints and having the positions challenged, the conservative justices went way out of their way to ensure that their law clerks were already in sync with their judicial ideology.
Justices, of course, are free to appoint whomever they choose as their law clerks. And it is possible to conjure "neutral" explanations for this pattern. Perhaps the Republican-appointed Justices trust only Republican-appointed judges to offer wise or honest recommendations. Perhaps they are just being loyal to their friends -- the Republican-appointed lower court judges. But I doubt it.
What is really going on here is a combination of intentional insularity and ideological patronage. Instead of wanting to have their ideas tested and challenged by their clerks, the conservative Justices apparently want their law clerks to applaud and affirm their views. That is their prerogative, but it does not speak well of their judgment. And this pattern is also clearly about patronage -- it is about the conscious and considered goal of the conservative Justices to promote the careers of conservative young lawyers. After all, a Supreme Court clerkship is a ticket to a very special future -- important positions in government, judgeships, and perhaps eventually appointment to the Supreme Court itself. This sort of political patronage is surely unseemly, at best.
I know this not only from my students who have gone on over the years to clerk for one or another of the Justices, and not only from my many conversations with individual Justices, but also from personal experience, because I had the great privilege of serving as a law clerk to Justice William J. Brennan, Jr. during the Court's 1972-1973 Term.
I was curious about how the current Justices select their clerks. All Supreme Court law clerks these days spend at least one year before clerking on the Supreme Court as a law clerk to a lower court judge, usually a judge on a United States Court of Appeals. In this way, they gain useful experience to prepare them for the task ahead.
Here is what I learned. Of the 20 law clerks appointed this Term by the five conservative Justices -- Roberts, Scalia, Kennedy, Thomas and Alito, 18 of the 20 -- or an astonishing 90 percent -- clerked last year for a Republican-appointed judge. Of the 16 law clerks appointed this Term by the four more liberal Justices -- Ginsburg, Breyer, Sotomayor and Kagan, only 9 of the 16 -- or 56 percent -- clerked last year for a Democratic-appointed judge.
What this reveals -- disappointingly, I might add -- is that the conservative Justices are determined to spend their time with pre-cleared conservative law clerks. Indeed, Chief Justice Roberts, Justice Scalia and Justice Alito hired as their law clerks this year only individuals who had clerked last year for Republican-appointed judges. Whereas the more liberal justices were clearly interested in exposing themselves to a range of different viewpoints and having the positions challenged, the conservative justices went way out of their way to ensure that their law clerks were already in sync with their judicial ideology.
Justices, of course, are free to appoint whomever they choose as their law clerks. And it is possible to conjure "neutral" explanations for this pattern. Perhaps the Republican-appointed Justices trust only Republican-appointed judges to offer wise or honest recommendations. Perhaps they are just being loyal to their friends -- the Republican-appointed lower court judges. But I doubt it.
What is really going on here is a combination of intentional insularity and ideological patronage. Instead of wanting to have their ideas tested and challenged by their clerks, the conservative Justices apparently want their law clerks to applaud and affirm their views. That is their prerogative, but it does not speak well of their judgment. And this pattern is also clearly about patronage -- it is about the conscious and considered goal of the conservative Justices to promote the careers of conservative young lawyers. After all, a Supreme Court clerkship is a ticket to a very special future -- important positions in government, judgeships, and perhaps eventually appointment to the Supreme Court itself. This sort of political patronage is surely unseemly, at best.
October 1, 2013
House Republicans and the Betrayal of Democracy
A threat is an expression of intention to inflict harm on others unless the target of the threat agrees to do what the person making the threat demands. A threat uses coercion rather than persuasion to effect change. As a general rule, democratic governments do not negotiate with those who threaten their people with harm. The reason is simple: Democracies should not make public policy in response to threats, and those who threaten should not be rewarded for threatening harm to the nation.
What makes the House Republicans' decision to shut down the federal government an immoral and unconscionable "threat" rather than an ordinary political disagreement? The answer is simple. House Republicans who do not have the votes to repeal Obamacare through the processes of democracy threatened to close the federal government, to throw hundreds of thousands of innocent government employees out of work, and to damage the nation's economy unless the Senate and the President acceded to their demands. By threatening to wreak havoc with the national interest and inflicting serious harm on hard-working, loyal public employees, they are attempting to coerce rather than to persuade the government into doing what they want. The House Republicans, in short, are holding the nation itself hostage to their demands. This is not democratic governance. This is extortion, plain and simple. In any other circumstance, this would be criminal conduct.
Of course, as the House Republicans glibly say on the talk shows, the Senate and the President can "solve" the problem any time they want by giving in to those who are inflicting ongoing harm to the nation. But if they do so, they will inevitably invite similarly destructive behavior in the future. When dealing with a blackmailer, extortionist, or kidnapper, it is never a wise response to give in to the demands if the blackmailer, extortionist or kidnapper is a repeat player.
Of course, the House Republicans have every right to try to get their preferred policies enacted into law through the democratic process. They have tried to do this politically, electorally and judicially. They have failed at every turn. The have lost every time they have tried to repeal Obamacare through the legislative process. They have lost in the Supreme Court when they challenged the constitutionality of the law. They have failed politically with the electorate when they were soundly defeated in the 2012 election. Indeed, the only reason House Republicans can play this cruel and criminal game at all is because they gerrymandered congressional districts to enable them to control the House even though they were defeated by the Democrats in the national popular vote for Congress. Nonetheless, they are free to keep trying to achieve their goals in every legal manner. But what they cannot morally do is to attempt to get their preferred policies enacted into law by threatening to inflict harm on the nation and its public servants.
The behavior of the House Republicans is nothing short of reprehensible. They are not only harming innocent government employees and damaging the nation, but they are also dishonoring the very spirit of their oath to uphold the Constitution of the United States. Their behavior is nothing less than a perverse and unconscionable betrayal of our democracy.
What makes the House Republicans' decision to shut down the federal government an immoral and unconscionable "threat" rather than an ordinary political disagreement? The answer is simple. House Republicans who do not have the votes to repeal Obamacare through the processes of democracy threatened to close the federal government, to throw hundreds of thousands of innocent government employees out of work, and to damage the nation's economy unless the Senate and the President acceded to their demands. By threatening to wreak havoc with the national interest and inflicting serious harm on hard-working, loyal public employees, they are attempting to coerce rather than to persuade the government into doing what they want. The House Republicans, in short, are holding the nation itself hostage to their demands. This is not democratic governance. This is extortion, plain and simple. In any other circumstance, this would be criminal conduct.
Of course, as the House Republicans glibly say on the talk shows, the Senate and the President can "solve" the problem any time they want by giving in to those who are inflicting ongoing harm to the nation. But if they do so, they will inevitably invite similarly destructive behavior in the future. When dealing with a blackmailer, extortionist, or kidnapper, it is never a wise response to give in to the demands if the blackmailer, extortionist or kidnapper is a repeat player.
Of course, the House Republicans have every right to try to get their preferred policies enacted into law through the democratic process. They have tried to do this politically, electorally and judicially. They have failed at every turn. The have lost every time they have tried to repeal Obamacare through the legislative process. They have lost in the Supreme Court when they challenged the constitutionality of the law. They have failed politically with the electorate when they were soundly defeated in the 2012 election. Indeed, the only reason House Republicans can play this cruel and criminal game at all is because they gerrymandered congressional districts to enable them to control the House even though they were defeated by the Democrats in the national popular vote for Congress. Nonetheless, they are free to keep trying to achieve their goals in every legal manner. But what they cannot morally do is to attempt to get their preferred policies enacted into law by threatening to inflict harm on the nation and its public servants.
The behavior of the House Republicans is nothing short of reprehensible. They are not only harming innocent government employees and damaging the nation, but they are also dishonoring the very spirit of their oath to uphold the Constitution of the United States. Their behavior is nothing less than a perverse and unconscionable betrayal of our democracy.
August 12, 2013
Stop-and-Frisk: Why We Have Courts
Every once in a while, I burst with pride in the American legal system. It doesn't happen as often as I would like, but Monday was such a day.
On Monday, Judge Shira A. Scheindlin, a federal judge in New York City, handed down her decision in Floyd v. The City of New York. The plaintiffs in Floyd challenged the constitutionality of New York City's stop-and-frisk policy. In a truly remarkable and courageous opinion, Judge Scheindlin held that policy unconstitutional.
The Fourth Amendment to the United States Constitution provides that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated." To the Framers of our Constitution, this was a fundamental precept of American freedom. This guarantee preserves our privacy and dignity, and reaffirms that in a self-governing society the government must respect the rights of the individual.
As the Supreme Court recognized more than a century ago, "No right is held more sacred, or is more carefully guarded, by the . . . law than the right of every individual to the possession and control of his own person, free from all restraint or interference, unless by clear and unquestionable authority of law."
To this end, the Supreme Court has long held that a police officer cannot constitutionally search or seize an individual unless the officer has probable cause to believe that the individual has committed, or is about to commit, a crime.
In 1968, however, in a case called Terry v. Ohio, the Court, in an opinion by Chief Justice Earl Warren, carved out a carefully limited exception to the probable cause requirement, holding that a police officer can constitutionally "stop" an individual on the street for questioning if the officer has "reasonable grounds to suspect" that the person has committed, is committing, or is about to commit a crime, and that the police officer can constitutionally "frisk" that person for weapons if he has "reasonable grounds to suspect" that the individual is "armed and presently dangerous."
The Court was fully aware that this was a constitutionally precarious decision, for it authorized "substantial interference" with the liberty and dignity of the individual by police officers whose judgment will naturally be "colored by their primary involvement in 'the often competitive enterprise of ferreting out crime.'" Moreover, the Court acknowledged that this practice could very well "exacerbate police-community tensions in the crowded centers of our Nation's cities."
Nonetheless, Chief Justice Warren held that the practice of stop-and-frisk, if carefully administered and implemented, could serve important law enforcement goals and was therefore not an "unreasonable search and seizure" in violation of the Fourth Amendment.
In her decision in Floyd, Judge Scheindlin found that the New York Police Department had used stop-and-frisk an astonishing 4.4. million times between 2004 and 2012. After carefully scrutinizing the Department's use of this practice, she concluded that the activities of the Department violated not only the Fourth Amendment, but also the provision of the Fourteenth Amendment guarantee all persons "the equal protection of the law."
Judge Scheindlin found that in 88 percent of these stops, the individual was innocent of any wrongdoing; that in 98.5 percent of the frisks, no weapon was found; that 83 percent of the Department's stop-and-frisks were directed at blacks and Hispanics, even though blacks and Hispanics make up only 52 percent of the population; that the police were 40 percent more likely to use force when dealing with blacks and Hispanics than when dealing with whites; and that the officers were 40 percent more likely to find weapons and 28 percent more likely to find contraband when they frisked whites than when they frisked blacks and Hispanics.
Judge Scheindlin therefore held that, although the use of stop-and-frisk is constitutionally permissible if it is undertaken in accord with constitutional requirements, the New York City Police Department had in fact employed this practice in a manner that blatantly violated both the Fourth Amendment and the Equal Protection Clause of the United States Constitution.
A decision like the one in Floyd illustrates why we need a strong and independent federal judiciary. For most New Yorkers, the Police Department's stop-and-frisk policy seemed something to applaud. It helped bring down crime and made the City safer. Moreover, most New Yorkers knew to a moral certainty that they themselves would never be subjected to the indignity and public humiliation of a stop-and-frisk. So, why not have such a policy?
The American judiciary exists, first and foremost, to protect the constitutional rights of those who are not in the majority. It exists to ensure that our government treats all of us with respect. It exists to protect the rights of the disadvantaged, the oppressed, the powerless and the despised, even when disadvantaging them advantages the rest of us.
Three cheers for Judge Scheindlin. She is what the American judicial system, at its best, is all about.
On Monday, Judge Shira A. Scheindlin, a federal judge in New York City, handed down her decision in Floyd v. The City of New York. The plaintiffs in Floyd challenged the constitutionality of New York City's stop-and-frisk policy. In a truly remarkable and courageous opinion, Judge Scheindlin held that policy unconstitutional.
The Fourth Amendment to the United States Constitution provides that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated." To the Framers of our Constitution, this was a fundamental precept of American freedom. This guarantee preserves our privacy and dignity, and reaffirms that in a self-governing society the government must respect the rights of the individual.
As the Supreme Court recognized more than a century ago, "No right is held more sacred, or is more carefully guarded, by the . . . law than the right of every individual to the possession and control of his own person, free from all restraint or interference, unless by clear and unquestionable authority of law."
To this end, the Supreme Court has long held that a police officer cannot constitutionally search or seize an individual unless the officer has probable cause to believe that the individual has committed, or is about to commit, a crime.
In 1968, however, in a case called Terry v. Ohio, the Court, in an opinion by Chief Justice Earl Warren, carved out a carefully limited exception to the probable cause requirement, holding that a police officer can constitutionally "stop" an individual on the street for questioning if the officer has "reasonable grounds to suspect" that the person has committed, is committing, or is about to commit a crime, and that the police officer can constitutionally "frisk" that person for weapons if he has "reasonable grounds to suspect" that the individual is "armed and presently dangerous."
The Court was fully aware that this was a constitutionally precarious decision, for it authorized "substantial interference" with the liberty and dignity of the individual by police officers whose judgment will naturally be "colored by their primary involvement in 'the often competitive enterprise of ferreting out crime.'" Moreover, the Court acknowledged that this practice could very well "exacerbate police-community tensions in the crowded centers of our Nation's cities."
Nonetheless, Chief Justice Warren held that the practice of stop-and-frisk, if carefully administered and implemented, could serve important law enforcement goals and was therefore not an "unreasonable search and seizure" in violation of the Fourth Amendment.
In her decision in Floyd, Judge Scheindlin found that the New York Police Department had used stop-and-frisk an astonishing 4.4. million times between 2004 and 2012. After carefully scrutinizing the Department's use of this practice, she concluded that the activities of the Department violated not only the Fourth Amendment, but also the provision of the Fourteenth Amendment guarantee all persons "the equal protection of the law."
Judge Scheindlin found that in 88 percent of these stops, the individual was innocent of any wrongdoing; that in 98.5 percent of the frisks, no weapon was found; that 83 percent of the Department's stop-and-frisks were directed at blacks and Hispanics, even though blacks and Hispanics make up only 52 percent of the population; that the police were 40 percent more likely to use force when dealing with blacks and Hispanics than when dealing with whites; and that the officers were 40 percent more likely to find weapons and 28 percent more likely to find contraband when they frisked whites than when they frisked blacks and Hispanics.
Judge Scheindlin therefore held that, although the use of stop-and-frisk is constitutionally permissible if it is undertaken in accord with constitutional requirements, the New York City Police Department had in fact employed this practice in a manner that blatantly violated both the Fourth Amendment and the Equal Protection Clause of the United States Constitution.
A decision like the one in Floyd illustrates why we need a strong and independent federal judiciary. For most New Yorkers, the Police Department's stop-and-frisk policy seemed something to applaud. It helped bring down crime and made the City safer. Moreover, most New Yorkers knew to a moral certainty that they themselves would never be subjected to the indignity and public humiliation of a stop-and-frisk. So, why not have such a policy?
The American judiciary exists, first and foremost, to protect the constitutional rights of those who are not in the majority. It exists to ensure that our government treats all of us with respect. It exists to protect the rights of the disadvantaged, the oppressed, the powerless and the despised, even when disadvantaging them advantages the rest of us.
Three cheers for Judge Scheindlin. She is what the American judicial system, at its best, is all about.
July 27, 2013
Understanding Cause and Effect
How do we know when to abandon a successful policy? At first blush, this might seem a contradiction in terms. Why would one ever abandon a successful policy? But most policies have costs as well as benefits, and at a certain point one might decide that the ongoing costs outweigh the ongoing benefits, even though that might not have been true earlier. Making such judgments requires a clear-eyed understanding of cause and effect.
Four current issues illustrate the problem. Consider, first, the recent five-to-four decision of the Supreme Court in Shelby County v. Holder to hold section 5 of the Voting Rights Act of 1965 unconstitutional. Writing the majority opinion, Chief Justice John Roberts reasoned that the requirement that certain jurisdictions with a long history of racial discrimination in voting must get pre-approval from the Justice Department before changing their voting laws is no longer constitutional because, whatever might have been the case in 1965, the record shows that the percentage of African-Americans who vote in those jurisdictions is now more or less on par with the percentage of White-Americans who vote. Thus, in Roberts' words, "the conditions that originally justified section 5 no longer characterize voting in the covered jurisdictions," section 5 is therefore no longer necessary, and, accordingly, it is now unconstitutional.
The illogic in this reasoning is so self-evident that it is difficult to imagine how Chief Justice Roberts could have missed it. Indeed, he couldn't miss it, because in her dissenting opinion Justice Ruth Bader Ginsburg made the point clearly. As she clearly demonstrated, the progress that African-American voters have made in these jurisdictions is due, not only to past changes, but to ongoing and active enforcement of the Voting Rights Act by the Department of Justice.
As she noted, in the twenty-five years leading up to Congress' reenactment of section 5, the Department of Justice had prohibited some 700 proposed voting laws in the covered jurisdictions on the ground that they were unconstitutionally discriminatory. In short, much of the "progress" lauded by Chief Justice Roberts was due to the ongoing and continuing effects of section 5, and as we have already seen, with section 5 out of the picture the previously covered jurisdictions are already leaping to enact discriminatory voting laws that just a few months ago would have been prohibited.
The dangers of this sort of illogic are evident in several other important and ongoing issues. A recent New York Times article on NSA surveillance programs, for example, observed that, although such programs might have been thought necessary in the "dangerous world" that existed after 9/11, "skepticism" about the necessity for such programs increases "when the world looks less dangerous." But to make sense of that contention, we need to know why the world "looks less dangerous." Is it because of changes unrelated to the NSA surveillance program or is it due to the continuing existence of the NSA surveillance program? In other words, as in the Voting Rights context, we cannot simply assume that because the world has changed for the better we no longer need to keep in place those processes and laws that got us to that better place in the first instance and that may be necessary to enable us to continue to enjoy that happier state of affairs.
A third recent example concerns affirmative action in higher education. The Supreme Court is on the verge of holding such programs unconstitutional, and the American public is skeptical of them as well. There are, of course, legitimate reasons to have reservations about affirmative action. Most obviously, by providing "preferential" treatment based on race, they can reinforce racial thinking and heighten racial antagonism. On the other hand, such programs have played an indispensable role both in promoting cross-racial interaction and understanding and in enabling traditionally disadvantaged minorities to achieve a greater degree of equality of educational opportunity.
But critics of affirmative action now suggest, among other things, that it is no longer necessary, because we have made real progress in terms of increasing the diversity of higher education. And, indeed, we have. Over the past twenty years, the percentage of Africans-Americans in college has increased from 23 percent to 35 percent. This is still well below the 44 percent of White-Americans who are currently enrolled in college, but it is dramatic progress, and it is due in no small part to the use of aggressive affirmative action programs in colleges and universities across the nation. The notion that we can now comfortably dispense with affirmative action because it is no longer necessary poses the same danger of flawed logic as the arguments about the Voting Rights Act and the NSA surveillance programs.
A final recent example of this phenomenon concerns our national policy of mass incarceration. From 1978 to 2009, the number of people incarcerated in the United States increased every year, from 307,276 in 1978 to 1,615,487 in 2009. Since 2009, however, the number of persons imprisoned has decreased (slightly) each year. Several factors seem to have contributed to this shift, including budgetary pressures -- imprisonment is not cheap. But according to a recent New York Times article, another important factor driving this change is "dropping crime rates over the last 20 years," which have "reduced public fears and diminished the interest of politicians in running tough-on-crime campaigns." Of course, it is perfectly possible, one might even say probable, that one reason for the "dropping crime rates" is that we have kept so many past offenders in prison. It is reasonable to assume, in the absence of evidence to the contrary, that if we had incarcerated "only" 307,276 individuals in the years between 1978 and 2009, the present crime rate -- and the concern about crime -- would be quite different from it is today.
My point in offering these four examples is not to suggest that there is a necessary "right" or "wrong" answer to the ultimate legal and policy questions at issue. But it is important that we at least think clearly about this issues and not blithely ignore the complexities of cause-and-effect.
Four current issues illustrate the problem. Consider, first, the recent five-to-four decision of the Supreme Court in Shelby County v. Holder to hold section 5 of the Voting Rights Act of 1965 unconstitutional. Writing the majority opinion, Chief Justice John Roberts reasoned that the requirement that certain jurisdictions with a long history of racial discrimination in voting must get pre-approval from the Justice Department before changing their voting laws is no longer constitutional because, whatever might have been the case in 1965, the record shows that the percentage of African-Americans who vote in those jurisdictions is now more or less on par with the percentage of White-Americans who vote. Thus, in Roberts' words, "the conditions that originally justified section 5 no longer characterize voting in the covered jurisdictions," section 5 is therefore no longer necessary, and, accordingly, it is now unconstitutional.
The illogic in this reasoning is so self-evident that it is difficult to imagine how Chief Justice Roberts could have missed it. Indeed, he couldn't miss it, because in her dissenting opinion Justice Ruth Bader Ginsburg made the point clearly. As she clearly demonstrated, the progress that African-American voters have made in these jurisdictions is due, not only to past changes, but to ongoing and active enforcement of the Voting Rights Act by the Department of Justice.
As she noted, in the twenty-five years leading up to Congress' reenactment of section 5, the Department of Justice had prohibited some 700 proposed voting laws in the covered jurisdictions on the ground that they were unconstitutionally discriminatory. In short, much of the "progress" lauded by Chief Justice Roberts was due to the ongoing and continuing effects of section 5, and as we have already seen, with section 5 out of the picture the previously covered jurisdictions are already leaping to enact discriminatory voting laws that just a few months ago would have been prohibited.
The dangers of this sort of illogic are evident in several other important and ongoing issues. A recent New York Times article on NSA surveillance programs, for example, observed that, although such programs might have been thought necessary in the "dangerous world" that existed after 9/11, "skepticism" about the necessity for such programs increases "when the world looks less dangerous." But to make sense of that contention, we need to know why the world "looks less dangerous." Is it because of changes unrelated to the NSA surveillance program or is it due to the continuing existence of the NSA surveillance program? In other words, as in the Voting Rights context, we cannot simply assume that because the world has changed for the better we no longer need to keep in place those processes and laws that got us to that better place in the first instance and that may be necessary to enable us to continue to enjoy that happier state of affairs.
A third recent example concerns affirmative action in higher education. The Supreme Court is on the verge of holding such programs unconstitutional, and the American public is skeptical of them as well. There are, of course, legitimate reasons to have reservations about affirmative action. Most obviously, by providing "preferential" treatment based on race, they can reinforce racial thinking and heighten racial antagonism. On the other hand, such programs have played an indispensable role both in promoting cross-racial interaction and understanding and in enabling traditionally disadvantaged minorities to achieve a greater degree of equality of educational opportunity.
But critics of affirmative action now suggest, among other things, that it is no longer necessary, because we have made real progress in terms of increasing the diversity of higher education. And, indeed, we have. Over the past twenty years, the percentage of Africans-Americans in college has increased from 23 percent to 35 percent. This is still well below the 44 percent of White-Americans who are currently enrolled in college, but it is dramatic progress, and it is due in no small part to the use of aggressive affirmative action programs in colleges and universities across the nation. The notion that we can now comfortably dispense with affirmative action because it is no longer necessary poses the same danger of flawed logic as the arguments about the Voting Rights Act and the NSA surveillance programs.
A final recent example of this phenomenon concerns our national policy of mass incarceration. From 1978 to 2009, the number of people incarcerated in the United States increased every year, from 307,276 in 1978 to 1,615,487 in 2009. Since 2009, however, the number of persons imprisoned has decreased (slightly) each year. Several factors seem to have contributed to this shift, including budgetary pressures -- imprisonment is not cheap. But according to a recent New York Times article, another important factor driving this change is "dropping crime rates over the last 20 years," which have "reduced public fears and diminished the interest of politicians in running tough-on-crime campaigns." Of course, it is perfectly possible, one might even say probable, that one reason for the "dropping crime rates" is that we have kept so many past offenders in prison. It is reasonable to assume, in the absence of evidence to the contrary, that if we had incarcerated "only" 307,276 individuals in the years between 1978 and 2009, the present crime rate -- and the concern about crime -- would be quite different from it is today.
My point in offering these four examples is not to suggest that there is a necessary "right" or "wrong" answer to the ultimate legal and policy questions at issue. But it is important that we at least think clearly about this issues and not blithely ignore the complexities of cause-and-effect.
July 20, 2013
Race in America: A More Perfect Union?
In his eloquent remarks the other day about Trayvon Martin, President Barack Obama closed by noting that, although we have a long way to go before we resolve the issue of race in America, we have made progress. We are not yet, he said, a "perfect Union," but we have taken steps towards becoming a "more perfect Union."
We have, indeed, made progress since the days when white slavers transported shackled Africans in the dark hulls of slave ships to be sold as chattel to their new white owners. We have, indeed, made progress since the days when the white owners of our African slaves held virtually absolute power to buy, sell, whip and rape their property and when the Framers of our Constitution saw fit to count each one of them as three-fifths of a person. We have, indeed, made progress since the turn of the last century, when African Americans, especially but not exclusively in the South, were prevented from voting, segregated in separate and inferior "colored" train cars, schoolrooms and hospitals, denied the freedom to marry members of the "superior race," and lynched in the most brutal and horrifying manner. We have, indeed, made progress.
We owe that progress to the scores of courageous civil rights activists who put themselves in harm's way in order to fight for justice and equality; to individuals like Abraham Lincoln, Earl Warren, Rosa Parks, Martin Luther King, Jr., and Lyndon Johnson; and to pivotal legal turns like the 13th, 14th and 15th Amendments, Brown v. Board of Education, the Civil Rights Act of 1964, and the Voting Rights Act of 1965. But even though, as President Obama observed, things are better for African Americans in our nation today than when he was the age of Trayvon Martin when he died, the moral crisis of racism remains an open wound.
We should not kid ourselves. Things have gotten better, but they are still shameful. Consider the following:
1. Black Americans are twice as likely as white Americans to live in poverty.
2. Black Americans are twice as likely as white Americans to be unemployed.
3. The median family income of black Americans is only 67 percent of that of white Americans.
4. The average white American family's net worth is 22 times greater than that of the average black American family.
5. The average white American family is 58 percent more likely to own a home than the average black American family.
6. Black American eighth graders are almost three times more likely to read below basic reading levels than white American eighth graders.
7. Black American students are more than twice as likely to drop out of high school as white American students.
8. Black American college students are 42 percent less likely to graduate college in four years that white American college students.
9. Black American males are six times more likely to be incarcerated than white American males.
10. Black American criminal defendants are sentenced to death three times more often than white American defendants when the victim was white.
11. Black American criminal defendants are sentenced to 10 percent longer prison terms than white American criminal defendants for the same crime.
12. Black American drivers are three times more likely to be searched when they stopped for a traffic violation than white American drivers.
13. A white American is four times more likely to become a lawyer than a black American.
14. A white American is three times more likely to become a doctor than a black American.
15. The United States Senate includes 96 white Americans and 0 black Americans.
16. White Americans are almost twice as likely as black Americans to think that black Americans have made significant progress in recent years.
And in the face of all this, the conservative justices of the United States Supreme Court insist that affirmative action programs designed to provide black Americans with some semblance of equal opportunity in higher education and the Voting Rights Act of 1965 are both unconstitutional because we have, after all, made progress.
We do not live in a post-racial society. We live in a fiercely and unremittingly racial society. This will change only when good, decent, fair-minded Americans take serious measures to address the underlying circumstances that create these sorrowful data.
We have, indeed, made progress since the days when white slavers transported shackled Africans in the dark hulls of slave ships to be sold as chattel to their new white owners. We have, indeed, made progress since the days when the white owners of our African slaves held virtually absolute power to buy, sell, whip and rape their property and when the Framers of our Constitution saw fit to count each one of them as three-fifths of a person. We have, indeed, made progress since the turn of the last century, when African Americans, especially but not exclusively in the South, were prevented from voting, segregated in separate and inferior "colored" train cars, schoolrooms and hospitals, denied the freedom to marry members of the "superior race," and lynched in the most brutal and horrifying manner. We have, indeed, made progress.
We owe that progress to the scores of courageous civil rights activists who put themselves in harm's way in order to fight for justice and equality; to individuals like Abraham Lincoln, Earl Warren, Rosa Parks, Martin Luther King, Jr., and Lyndon Johnson; and to pivotal legal turns like the 13th, 14th and 15th Amendments, Brown v. Board of Education, the Civil Rights Act of 1964, and the Voting Rights Act of 1965. But even though, as President Obama observed, things are better for African Americans in our nation today than when he was the age of Trayvon Martin when he died, the moral crisis of racism remains an open wound.
We should not kid ourselves. Things have gotten better, but they are still shameful. Consider the following:
1. Black Americans are twice as likely as white Americans to live in poverty.
2. Black Americans are twice as likely as white Americans to be unemployed.
3. The median family income of black Americans is only 67 percent of that of white Americans.
4. The average white American family's net worth is 22 times greater than that of the average black American family.
5. The average white American family is 58 percent more likely to own a home than the average black American family.
6. Black American eighth graders are almost three times more likely to read below basic reading levels than white American eighth graders.
7. Black American students are more than twice as likely to drop out of high school as white American students.
8. Black American college students are 42 percent less likely to graduate college in four years that white American college students.
9. Black American males are six times more likely to be incarcerated than white American males.
10. Black American criminal defendants are sentenced to death three times more often than white American defendants when the victim was white.
11. Black American criminal defendants are sentenced to 10 percent longer prison terms than white American criminal defendants for the same crime.
12. Black American drivers are three times more likely to be searched when they stopped for a traffic violation than white American drivers.
13. A white American is four times more likely to become a lawyer than a black American.
14. A white American is three times more likely to become a doctor than a black American.
15. The United States Senate includes 96 white Americans and 0 black Americans.
16. White Americans are almost twice as likely as black Americans to think that black Americans have made significant progress in recent years.
And in the face of all this, the conservative justices of the United States Supreme Court insist that affirmative action programs designed to provide black Americans with some semblance of equal opportunity in higher education and the Voting Rights Act of 1965 are both unconstitutional because we have, after all, made progress.
We do not live in a post-racial society. We live in a fiercely and unremittingly racial society. This will change only when good, decent, fair-minded Americans take serious measures to address the underlying circumstances that create these sorrowful data.
July 5, 2013
Reflections on the FISA Court
Before 1978, the federal government assumed that agencies like the NSA and the FBI could legally carry out wiretaps and other forms of electronic surveillance against suspected foreign intelligence agents inside the United States without any prior judicial approval. The assumption was that the invocation of "national security" was sufficient to override the Fourth Amendment's ordinarily strong presumption that any such surveillance must be authorized in advance by a judicial warrant finding that the proposed surveillance is legal.
In 1978, as a result of disclosures about Nixon-era abuses uncovered by the Church Committee, Congress enacted the Foreign Intelligence Surveillance Act which, among other things, created the Foreign Intelligence Surveillance court. Although Congress recognized that government investigations of foreign agents for national security purposes often necessitated a heightened degree of secrecy, it also recognized that prior judicial approval of such surveillance was an essential safeguard against abuse whenever the surveillance might affect an American citizen.
The compromise was to create a court that would have to approve foreign intelligence surveillance activities, but could do so in a manner that would protect the need for secrecy. In short, the creation of the FISA court was a major reform designed to provide for much-needed independent judicial oversight of foreign intelligence investigations. The FISA Act of 1978 was thus seen as a critical step forward in the effort to preserve our civil liberties.
The FISA court today consists of 11 federal district court judges, appointed by the Chief Justice of the United States. Each member of the court has to be approved for a security clearance and each serves a seven year term. Over the past 10 years, the FISA court has reviewed an average of approximately 2,000 requests annually for FISA warrants. The decisions and opinions of the judges on the FISA court ordinarily are classified and therefore unavailable to the general public. The rationale for the secrecy is that public disclosure of the surveillance activities of the government in these national security investigations would effectively undermine both ongoing and future investigations.
It is, of course, difficult to assess the performance of the FISA court, because its activities are secret. But with 30 years of experience, it is possible to offer some reflections and suggestions.
First, critics often point out that the FISA court approves an extraordinarily high percentage of the government's requests. Approximately 97 percent of the government's requests are approved on initial submission, and if one includes those cases in which the government comes back to the court with additional material after a request has initially been denied, roughly 99 percent of all requests are approved. Critics therefore maintain that the judges on the FISA court are simply "rubber stamping" the government's requests, rendering the whole process a sham.
This is too harsh. The 11 judges currently on the FISA court are all well-respected judges. There is no reason to believe they do not take their responsibilities seriously. A more likely explanation of the extraordinarily high rate of approval is that officials in the Department of Justice take equally seriously their responsibility to put forth requests for approval only when they are confident that the requests are justified.
Indeed, in a situation in which the lawyers for the Executive Branch know full well that they need the FISA court judges to have complete confidence in the credibility of their submissions, it makes sense that they would be extremely careful not to put forth weak proposals that would shake the confidence of the court. It is therefore perfectly possible that the system, at least in this respect, works precisely as intended.
It is important to note, though, that without the existence of a FISA court to which Executive Branch officials are answerable, there is little doubt that the NSA and the FBI would be authorizing all sorts of investigations that would not meet the standards now imposed by the FISA court. In that sense, the existence of the FISA court plays a critical role.
Second, there are major deficiencies in the way the FISA court now operates. When the judges on the FISA court review the government's submissions, there is no one on the other side to advocate against the arguments of the government. In this respect, the FISA process was modeled on the usual search warrant process, in which a police officer provides information to a judge in the hope that the judge will issue a search warrant. But in the usual search warrant situation, there is often an opportunity for subsequent adversarial litigation over the legality of the search. This might happen in a civil action brought by the target of the search or in a defendant's motion to suppress the evidence in a subsequent criminal prosecution. In practical effect, there is no opportunity for adversarial review in the FISA context.
There is a simple -- and necessary -- solution. Whenever the government seeks a warrant from the FISA court, an independent government lawyer, with a security clearance, should have the responsibility of arguing the other side. In a sense, this would be something like a public defender's office, where the "client" is not only the target of the proposed surveillance (who would know nothing about what is happening), but also the national interest in reaching the best outcome in these matters. Our legal system is premised on the merits of adversarial presentation of arguments, and there is no good reason why the FISA process should not adopt that model.
Third, there is some reason to be concerned about the makeup of the FISA court. Of the 11 judges currently serving on the court, ten were initially appointed to the federal bench by Republican presidents. Only one, Judge Mary McLaughlin, was appointed by a Democratic president- Bill Clinton. The reason for this seems pretty clear, and it is troubling. Under the FISA Act, the Chief Justice appoints the members of the FISA court. Since 1978, when the FISA court was created, every Chief Justice of the United States -- Warren Burger, William Rehnquist and John Roberts - was appointed by a Republican president. At present, approximately 50 percent of federal district court judges were appointed by Republican presidents and 50 percent were appointed by Democratic presidents. But on the FISA court, 91 percent were appointed by Republican presidents and only 9 percent were appointed by Democratic presidents.
This is quite disturbing in terms of the choices made by Burger, Rehnquist and Roberts, who are not supposed to be influenced by partisan or ideological considerations. Moreover, this matters. Judges appointed by Republican and Democratic presidents differ quite significantly in their judicial approaches. To cite just one example, among Supreme Court justices appointed in the last 30 years, those appointed by Republican presidents support civil liberties claims roughly 34 percent of the time, whereas those appointed by Democratic presidents support such claims approximately 74 percent of the time.
One can therefore fully expect that a FISA court consisting of 91 percent Republican-appointed judges, even if they attempt to meet their responsibilities in good faith, is dramatically more likely to approve warrants for government surveillance than a FISA court consisting of judges appointed half by Republican and half by Democratic presidents. The fault here -- and this distortion is clearly a fault -- rests clearly in the inexcusable failure of Chief Justices Burger, Rehnquist and Roberts to pay fair attention to this consideration.
There is, of course, much more to say about the FISA court, but this is food for thought.
In 1978, as a result of disclosures about Nixon-era abuses uncovered by the Church Committee, Congress enacted the Foreign Intelligence Surveillance Act which, among other things, created the Foreign Intelligence Surveillance court. Although Congress recognized that government investigations of foreign agents for national security purposes often necessitated a heightened degree of secrecy, it also recognized that prior judicial approval of such surveillance was an essential safeguard against abuse whenever the surveillance might affect an American citizen.
The compromise was to create a court that would have to approve foreign intelligence surveillance activities, but could do so in a manner that would protect the need for secrecy. In short, the creation of the FISA court was a major reform designed to provide for much-needed independent judicial oversight of foreign intelligence investigations. The FISA Act of 1978 was thus seen as a critical step forward in the effort to preserve our civil liberties.
The FISA court today consists of 11 federal district court judges, appointed by the Chief Justice of the United States. Each member of the court has to be approved for a security clearance and each serves a seven year term. Over the past 10 years, the FISA court has reviewed an average of approximately 2,000 requests annually for FISA warrants. The decisions and opinions of the judges on the FISA court ordinarily are classified and therefore unavailable to the general public. The rationale for the secrecy is that public disclosure of the surveillance activities of the government in these national security investigations would effectively undermine both ongoing and future investigations.
It is, of course, difficult to assess the performance of the FISA court, because its activities are secret. But with 30 years of experience, it is possible to offer some reflections and suggestions.
First, critics often point out that the FISA court approves an extraordinarily high percentage of the government's requests. Approximately 97 percent of the government's requests are approved on initial submission, and if one includes those cases in which the government comes back to the court with additional material after a request has initially been denied, roughly 99 percent of all requests are approved. Critics therefore maintain that the judges on the FISA court are simply "rubber stamping" the government's requests, rendering the whole process a sham.
This is too harsh. The 11 judges currently on the FISA court are all well-respected judges. There is no reason to believe they do not take their responsibilities seriously. A more likely explanation of the extraordinarily high rate of approval is that officials in the Department of Justice take equally seriously their responsibility to put forth requests for approval only when they are confident that the requests are justified.
Indeed, in a situation in which the lawyers for the Executive Branch know full well that they need the FISA court judges to have complete confidence in the credibility of their submissions, it makes sense that they would be extremely careful not to put forth weak proposals that would shake the confidence of the court. It is therefore perfectly possible that the system, at least in this respect, works precisely as intended.
It is important to note, though, that without the existence of a FISA court to which Executive Branch officials are answerable, there is little doubt that the NSA and the FBI would be authorizing all sorts of investigations that would not meet the standards now imposed by the FISA court. In that sense, the existence of the FISA court plays a critical role.
Second, there are major deficiencies in the way the FISA court now operates. When the judges on the FISA court review the government's submissions, there is no one on the other side to advocate against the arguments of the government. In this respect, the FISA process was modeled on the usual search warrant process, in which a police officer provides information to a judge in the hope that the judge will issue a search warrant. But in the usual search warrant situation, there is often an opportunity for subsequent adversarial litigation over the legality of the search. This might happen in a civil action brought by the target of the search or in a defendant's motion to suppress the evidence in a subsequent criminal prosecution. In practical effect, there is no opportunity for adversarial review in the FISA context.
There is a simple -- and necessary -- solution. Whenever the government seeks a warrant from the FISA court, an independent government lawyer, with a security clearance, should have the responsibility of arguing the other side. In a sense, this would be something like a public defender's office, where the "client" is not only the target of the proposed surveillance (who would know nothing about what is happening), but also the national interest in reaching the best outcome in these matters. Our legal system is premised on the merits of adversarial presentation of arguments, and there is no good reason why the FISA process should not adopt that model.
Third, there is some reason to be concerned about the makeup of the FISA court. Of the 11 judges currently serving on the court, ten were initially appointed to the federal bench by Republican presidents. Only one, Judge Mary McLaughlin, was appointed by a Democratic president- Bill Clinton. The reason for this seems pretty clear, and it is troubling. Under the FISA Act, the Chief Justice appoints the members of the FISA court. Since 1978, when the FISA court was created, every Chief Justice of the United States -- Warren Burger, William Rehnquist and John Roberts - was appointed by a Republican president. At present, approximately 50 percent of federal district court judges were appointed by Republican presidents and 50 percent were appointed by Democratic presidents. But on the FISA court, 91 percent were appointed by Republican presidents and only 9 percent were appointed by Democratic presidents.
This is quite disturbing in terms of the choices made by Burger, Rehnquist and Roberts, who are not supposed to be influenced by partisan or ideological considerations. Moreover, this matters. Judges appointed by Republican and Democratic presidents differ quite significantly in their judicial approaches. To cite just one example, among Supreme Court justices appointed in the last 30 years, those appointed by Republican presidents support civil liberties claims roughly 34 percent of the time, whereas those appointed by Democratic presidents support such claims approximately 74 percent of the time.
One can therefore fully expect that a FISA court consisting of 91 percent Republican-appointed judges, even if they attempt to meet their responsibilities in good faith, is dramatically more likely to approve warrants for government surveillance than a FISA court consisting of judges appointed half by Republican and half by Democratic presidents. The fault here -- and this distortion is clearly a fault -- rests clearly in the inexcusable failure of Chief Justices Burger, Rehnquist and Roberts to pay fair attention to this consideration.
There is, of course, much more to say about the FISA court, but this is food for thought.
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