Thursday, March 02, 2006

Warrantless eavesdropping primer

I'm going to attempt, with this post, to summarize what we *know* about warrant law and the Bush spying allegations, as a base of reference for future posts.

I'm going to rely on two main sources.

One is the text of the opinion written by the FISA Court of Review. It basically outlines the history of warrant requirements, and its ruling spells out current law.

The second is the text of the FISA law.

So, here's what I consider the known, uncontestable facts:

1. The Truong case in 1978 was the first (and, until the Court of Review, only) case to address head-on the scope of the executive branch's "inherent authority" to conduct warrantless searches for "foreign intelligence" purposes.

2. The Truong case defined and thus limited that power, saying any such search must be "primarily" for "foreign intelligence" reasons, and must not have a substantial likelihood of ensnaring a "U.S. person", defined as a U.S. citizen or legal alien.

3. When FISA was passed later that year (largely in response to revelations of government spying during the Vietnam war), it incorporated the Truong standard into the law, and established the FISA court to hear warrant applications for searches aimed at U.S. persons.

4. Other laws or actions at the time banned the CIA and NSA from domestic surveillance and shut down various FBI and military monitoring programs.

5. Over time, the distinction between foreign and domestic surveillance evolved into a "wall".

6. The Patriot Act attempted to weaken that wall, allowing intelligence and law enforcement agencies to share data and downgrading the standard of evidence for a FISA warrant to foreign intelligence being merely a "significant purpose" for the search.

7. The FISA court, however, kept trying to apply what it considered the legal precedent of the "wall" -- not over sharing intelligence, which the Patriot Act directly addressed, but over the purpose of the search. So they kept insisting on procedures designed to keep an intelligence search from transforming into a criminal prosecution search.

8. The government appealed that approach to the Court of Review.

9. The Court of Review agreed with the government that such procedures were based more on tradition than on actual law. But it also reaffirmed that "foreign intelligence" must be a "significant purpose" of the search, and that a warrant was required if the search involved a U.S. person.

10. That leaves us with the current standard for "foreign intelligence" searches domestically:
a. If it involves a foreign power, no warrant is necessary and the court need not be consulted.
b. No warrant is needed for searches or monitoring overseas.
c. If a domestic search involves a U.S. person, a warrant is needed. And "foreign intelligence" must be a "significant purpose" of the search.

11. During the Court of Review appeal, the government didn't argue that warrants weren't needed; rather they argued about what standards of evidence were required for granting a warrant.

12. In that context, however, the administration argued that it must be granted a warrant even if the search contained *no* foreign intelligence component. In other words, it was arguing that the court was obligated to approve any warrant for any purpose, including a purely criminal investigation. The Court of Review rejected that reasoning.

13. The Bush administration has admitted that it authorized the NSA to eavesdrop on "a few numbers" without seeking FISA warrants. The New York Times says that number was up to 500 people at a time.

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