Lawsuits attempting to hold the government and telecom companies accountable for illegal warrantless wiretapping under President George W. Bush have encountered three main obstacles: the state secrets privilege, the constitutional requirement of standing, and Congress’s retroactive grant of immunity to telecom companies that cooperated with the government. Recently, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit solidified one of these obstacles, but dealt a mortal blow to another.
In Hepting. v. AT&T Corp., the Ninth Circuit held that Congress’s retroactive grant of immunity to telecom companies — set forth in section 802 of the FISA Amendments Act of 2008 (“FAA”) — passed constitutional muster. The district court had described the provision as “sui generis” among immunity laws. Congress in the FAA did not retroactively change the substantive law to legalize the telecoms’ alleged assistance to the intelligence community. Instead, Congress required courts to dismiss any case against a telecom company if the Attorney General filed a certification asserting one of the following: that the telecom companies had statutory authority for their alleged actions; that they didn’t actually perform the alleged actions; or that they acted pursuant to a directive from the president or other high-ranking official. In other words, even if the companies broke the law, the Attorney General could essentially tell the court to dismiss the case.
In upholding the section 802’s validity, the Ninth Circuit panel rejected several arguments against its constitutionality. Unfortunately, though, the panel did not address the crux of the issue. In an amicus brief filed in related litigation, In re NSA Telecommunications Records Litigation, the Brennan Center explained that section 802 violates the Constitution’s prohibition on congressionally enacted “rules of decision.” Under United States v. Klein, 80 U.S. (13 Wall.) 128 (1871) and its progeny, Congress cannot intervene in existing litigation and compel a particular result without changing the underlying substantive law. Such intervention violates the Separation of Powers by arrogating to Congress the inherently judicial function of deciding cases. Here, Congress did not change the underlying law but instead created a mechanism which could have only one result in a particular set of pending lawsuits — dismissal of the case.
The plaintiffs in Hepting made a version of this argument, but the panel avoided grappling with it by merely distinguishing the facts of the case cited by the plaintiffs, Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995). Although the facts in Plaut were indeed distinguishable, few cases present perfectly analogous fact patterns. The principles enunciated in Plaut were nonetheless applicable in this case and should have held sway.
The same three-judge panel took greater care in resolving the question of standing in Jewel v. National Security Agency. In order to have constitutional standing, a plaintiff must allege, among other things, that she suffered an “injury in fact” — i.e., a concrete and particularized grievance. This issue has bedeviled the wiretapping lawsuits from the outset. Because of the intense secrecy of the wiretapping program, plaintiffs generally don’t know if their phone calls or emails were wiretapped. This shouldn’t matter if the plaintiffs can show that they were injured by the program nonetheless — for example, if they had a reasonable fear that their communications might be intercepted and they incurred some cost or burden in taking evasive measures. But some of the decisions in the wiretapping cases have contemplated a higher burden, essentially requiring plaintiffs to do the impossible and prove what the government has taken great pains to hide.
The case decided by the Ninth Circuit panel recently was unusual in that the plaintiff did not allege that her communications might have been intercepted, but instead alleged the existence of a dragnet that actually did capture her communications. The panel therefore had little trouble determining that the plaintiff stated sufficiently concrete injuries. A more fulsome analysis was required to determine whether her injury was sufficiently “particularized,” but the panel ultimately concluded that even widespread injuries — including those shared by many or even most Americans — may confer standing if they are sufficiently concrete. Most notably, the panel rejected the district court’s assertion that plaintiffs must make a particularly persuasive showing of standing in national security cases.
The Ninth Circuit thus joins the Second Circuit (Amnesty International USA v. Clapper, 638 F.3d 118 (2d Cir. 2011)) in upholding the standing of plaintiffs in warrantless wiretapping cases. As noted by the panel in Jewel, the Second Circuit’s decision goes even further because it upholds standing in a case where the plaintiffs did not allege that they were actually wiretapped. These decisions stand in stark contrast to the Sixth Circuit’s decision denying standing to the plaintiffs in ACLU v. NSA, 493 F.3d 644 (6th Cir. 2007).
The approach of the Ninth and Second Circuits should prevail. These courts’ decisions do much more than clarify arcane rules of jurisdiction. They are key victories for the rule of law. As the Brennan Center argued as amicus curiae in Amnesty, history shows that the executive branch’s authority to engage in surveillance is prone to abuse. For example, as the Church Committee revealed, between 1930 and 1970 the government regularly intercepted the communications of civil rights activists (including Martin Luther King, Jr. and the NAACP) and others who were suspected of no crime, but who took positions that the government disagreed with. Judicial oversight has been, and will continue to be, a key factor in preventing these kinds of abusive activities. A standard that requires plaintiffs to prove that they are victims of secret surveillance in order to challenge its legality not only exceeds the requirements of the Constitution but would effectively preclude judicial review of one of the government’s most intrusive and most frequently abused authorities. Such a result would be inconsistent with the Separation of Powers and the rule of law.
The Jewel decision thus represents a nod to accountability that should take some of the sting out of the decision in Hepting. But unfortunately for the Jewel plaintiffs, additional obstacles remain. The panel forecast the difficulties that Ms. Jewel would face in proving her allegations of wiretapping — which the panel assumed to be true for purposes of resolving the government’s motion to dismiss — at the merits stage. And it expressly directed the district court to consider the government’s assertion of the state secrets privilege on remand. After these recent decisions, accountability is still an option in the Ninth Circuit, but it is by no means a certainty.
The announcement of the NYPD's recent arrest of Jose Pimentel, accused of building pipe bombs to embark on a bombing campaign around New York City, seemed high on drama, coming on a Sunday evening at short notice at City Hall. Noticeably absent from the press conference was the FBI, even though terrorism cases are usually handled at the federal level. And it wasn't because it was a bad time for them. The FBI had also been investigating Pimentel, but declined the NYPD's offer to pursue the case against him because of concerns that the informant was too involved in the plot. The informant smoked marijuana with Pimentel, and some of the incriminating statements on which the indictment is based were made while Pimentel was high. Unnamed federal law enforcement officials quoted in reports about the case expressed doubts about Pimentel's mental state and ability to carry out the planned attacks.
This is the second recent case where New York brought a terrorism case when the FBI chose not to pursue federal charges. In May, Ahmed Ferhani and Mohamed Mamdouh were arrested for allegedly plotting to bomb synagogues and churches. In that case, too, the FBI declined to participate because it had doubts about the credibility of the NYPD undercover agent, who seems to have led the mentally disturbed Ferhani into the plot and obtained incriminating statements from Mamdouh while he was drunk. The grand jury — which normally rubberstamps requests by prosecutors — was also skeptical of the NYPD's case against Ferhani and Mamdouh. It declined to indict them on the most serious charges (that they planned to blow up a synagogue with worshippers inside), although they were indicted on lesser charges.
The official line that the absence of the FBI from the Pimentel case is nothing out of the ordinary barely passes the snicker test. An ever increasing number of "anonymous" FBI agents have criticized the NYPD's tactics to reporters. One even went so far as to say that NYPD personnel on the Joint Terrorism Task Force agreed with the FBI's assessment of the Pimentel case, but the NYPD Intelligence Division went ahead and took it to the district attorney. Another federal agent was quoted as describing the Intelligence Division as "an empire unto itself."
Unfortunately this is not the only circumstance in which the Intelligence Division appears to be operating entirely without oversight. Since August, the Associated Press has revealed that the NYPD is conducting dragnet surveillance of the city's Muslim communities. The reports document a mapping program in which the NYPD collected data about Middle Eastern ethnic groups, and businesses owned or operated by members of those ethnic groups, including restaurants, cafes, barber shops, and bookstores. The AP's investigation also revealed that the police infiltrated mosques and Muslim student groups at New York City colleges. All of these activities were apparently routinely undertaken by the Intelligence Division, without any suspicion of criminal activity, in order to build up its information on Muslims in New York City.
The FBI, for its part, has suggested that the NYPD is using tactics that verge on the unconstitutional. The implication is, of course, that the FBI would never engage in such activities. The sad truth, however, is that the FBI has undertaken similar surveillance of Muslims, although it may not have penetrated quite as deeply into communities as the ethnically and religiously diverse New York City police force has been able to.
But one very important difference between the FBI's intelligence gathering and that of the NYPD is that the FBI's operations are at least subject to oversight by congressional committees and the Justice Department's Inspector General. The NYPD's Intelligence Division, on the other hand, has no meaningful oversight. Mayor Bloomberg's recent comment that "I have my own army in the NYPD" further drives home that point. The New York City Council has never held a hearing on the NYPD's intelligence operations, although some Council Members did pointedly question Police Commissioner Ray Kelly about these activities at a recent hearing on public safety. The NYPD has monitors for police misconduct and corruption, but no one is watching the Intelligence Division.
While we are all grateful to the NYPD for its work in protecting the city, that doesn't mean the Intelligence Division should operate without oversight and ride roughshod over the privacy and civil liberties of New Yorkers. The FBI's intelligence operations are far from perfect, but oversight at least creates some pressure to adhere to the rules. Until the NYPD's Intelligence Division is answerable to someone outside the police department, we can't expect it to change.
Today, Attorney General Eric Holder appears before the Senate Judiciary Committee for a Department of Justice oversight hearing. This hearing comes just weeks after reports surfaced that the FBI put in place new domestic intelligence guidelines, and it is an important opportunity to press Attorney General Holder on the new rules.
The rule changes grant FBI agents a number of new powers. Among them:
Agents reportedly can now search, with no reason for suspicion, an individual's trash to find material they can use to pressure him or her into becoming a government informant;
They have the authority to search commercial or law enforcement databases for information about an individual without first opening an investigation or creating any records of the search, undercutting any possibility of meaningful internal oversight; and
Agents may infiltrate political or religious groups up to five times before the FBI’s rules governing such activity (which are themselves secret) apply.
Details of the new FBI guidelines first surfaced in June. Soon after, the Brennan Center urged the Judiciary Committee to investigate the changes before they went into effect. We repeated this call in early October, but the rules reportedly went into effect on October 15.
So what’s next? Is it too late?
Emphatically, no. This issue is far too important for Congress and the public to simply throw up their hands and say “What’s done is done” — the exact result that the FBI hopes to achieve (and has achieved in the past) by implementing the changes quietly.
Today’s hearing is an opportunity for Judiciary Committee members to press Attorney General Holder on the FBI’s rule changes. Here is a list of sample questions, released yesterday by the Brennan Center, that Judiciary Committee members should ask the Attorney General:
The FBI’s rules are intended to interpret and implement the Attorney General’s guidelines for domestic investigations. The FBI last revised its rules in December 2008, in response to a revision in the Attorney General’s guidelines. What is the justification for the current revision, given that the Attorney General’s guidelines have not changed?
What changes have been made to the FBI’s rules other than those already reported?
In general, greater powers call for more oversight — not less. What is the rationale for reducing internal oversight over the FBI’s domestic investigations? In cases where recordkeeping requirements have been eliminated, what mechanisms are in place to protect against abuse?
Prior versions of the FBI’s rules have been made public, albeit with substantial redactions. Why hasn’t the FBI made any of the new rules public?
As the Brennan Center’s Emily Berman wrote in The Atlantic, “It's not too late to have a debate on these new authorities — and, if the consensus is that they go too far, to call for their repeal.”
Tomorrow, the Supreme Court will hear oral argument in United States v. Jones, widely viewed as a one of the most important Fourth Amendment cases in decades and a bellwether for the Court’s approach to privacy rights in the digital age. The question before the Court is whether the Fourth Amendment requires law enforcement to obtain a warrant before secretly planting a GPS device on an individual’s car and tracking his every move for nearly a month.
How the Court answers this question will have implications for an increasingly prevalent array of location-aware technology, from vehicles equipped with satellite navigation systems to smart phones and tablet computers that store or transmit location information. Whether the government can access such information without a warrant is likely to turn on the Court’s reasoning in Jones.
One approach, urged by the government, would be to extend the logic of a 1983 case called United States v. Knotts, in which the Court held that “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” Knotts, however, involved only the visual surveillance of a suspect with the aid of a “beeper”-style homing device (think No Country for Old Men) to ensure that officers didn’t lose the tail. Moreover, the police did not actively plant the beeper (it was inside a drum of chloroform that the suspect loaded into his car) and they limited its use to a single trip.
By contrast, the kind of electronic surveillance in Jones has a decidedly more Orwellian feel, as judges around the country have noted. Not only did federal agents have no need for visual surveillance once they secretly affixed a GPS tracker to the suspect’s vehicle, they then proceeded to monitor his every move, 24 hours per day, for 28 days.
Holding that such tracking is unconstitutional absent a valid warrant, the D.C. Circuit Court of Appeals recognized that prolonged surveillance reveals qualitatively different information than does short-term surveillance, including whether a person “is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups ― and not just one such fact about a person, but all such facts.” The court then distinguished Knotts by reasoning that unlike one’s movements on a discrete trip, “[a] reasonable person does not expect anyone to monitor and retain a record of every time he drives his car, including his origin, route, destination, and each place he stops and how long he stays there; rather, he expects each of those movements to remain ― ‘disconnected and anonymous.’”
The Brennan Center filed an amicus brief urging the Supreme Court to affirm the D.C. Circuit decision. The brief was joined by the National Association of Criminal Defense Lawyers, the First Amendment Lawyers Association, the District of Columbia Association of Criminal Defense Lawyers, the New York State Association of Criminal Defense Lawyers, and the Ohio Association of Criminal Defense Lawyers. Our brief argues that surreptitious GPS tracking places a significant burden on the First Amendment right to association by revealing lawful and private associational relationships and activities. It contrasts this heavy burden on First and Fourth Amendment rights with streamlined warrant application procedures that permit law enforcement in the vast majority of states to apply for warrants electronically and remotely, thereby minimizing the risk of significant investigative delay.
In fact, the agents in Jones did obtain a warrant, but inexplicably waited until after it had expired to install the GPS tracker. It is therefore difficult to seriously credit the government’s claim that a warrant requirement would unduly hinder law enforcement investigations.
Whether the Supreme Court agrees will not only determine how the Fourth Amendment applies to GPS technology, it will also set the stage for future decisions about privacy and the limits of government in the digital age. The Brennan Center hopes the Supreme Court will join the D.C. Circuit and agrowingchorusofstates in recognizing that when the government engages in the kind of relentless, 24-hour-per-day location tracking at issue in Jones, it generates an intimate picture of an individual’s private life that reveals far more than the sum of short-term surveillance on discrete trips. Law enforcement may have a compelling need for such information, but given the stakes, it should not be too much to ask that they communicate that need to a judge and get a warrant.
Lawyers in the 1970s era political spying case Handschu filed a motion in federal district court yesterday, seeking information on whether the New York City Police Department had violated the terms under which that case had been settled. The motion was prompted by Associated Press revelations that the NYPD had monitored the daily lives of New York's 800,000 strong Muslim community, including where they prayed and ate and even where they had their hair cut.
The terms of the Handschu settlement were significantly modified at the instigation of the NYPD after 9/11. While controls on law enforcement spying on political activities were diluted, the current rules nonetheless ban the police from collecting and retaining information about innocent people that is not related to criminal or terrorist activity. The articlespublished by the AP suggest the NYPD was accumulating precisely these types of dossiers on Muslim New Yorkers.
While the NYPD has denied these allegations, the AP has released documents showing that many of the programs disavowed by the police did in fact exist. Earlier this month, the Brennan Center for Justice, along with Muslim Advocates and the Asian American Legal Defense and Education Fund, filed a Freedom of Information Law request with the NYPD seeking a range of records relating to these allegations.
Something remarkable happened in New Jersey last week. A politician stood up and, refusing to bow to the prevailing political winds that seem to demand the demonization of Muslims, told the truth. And for that he deserves a great deal of credit.
Last week New Jersey Governor Chris Christie defended his nomination of Muslim-American attorney Sohail Mohammed to sit as a judge on the New Jersey Superior Court.
The nomination, announced in January of this year, had sparked the now-predictable uproar about Shariah law, and the risks that Muslims pose to the American way of life.
In a refreshingly blunt display, Gov. Christie accurately identified the source of this criticism as “ignorance,” the fear that Shariah law poses some threat to the citizens of New Jersey as “crazy,” and the questions Mohammed was asked during his confirmation hearings as “disgusting.” In short, he said, “I’m tired of dealing with the crazies.” Christie then went on to tout Mohammed’s qualifications, to praise his critical role in building trust between federal law enforcement and Muslim leaders in the wake of 9/11, and to extol his competent and zealous representation of his clients as a member of the New Jersey bar—including clients who were, as Christie acknowledged, “improperly detained” by the FBI after 9/11. Christie then went on to state the obvious: He was proud to nominate Mohammed because “he’s a good lawyer and an outstanding human being,” and opposition to the nomination based on Mohammed’s religious background is “just unnecessary.”
Christie is not the only one tired of the crazies. All too often of late, political conversations regarding the role of American Muslims devolve into Islamophobic accusations and expressions of irrational fear of Islamic law. Even members of Congress whose own constituents include sizeable communities of patriotic, law-abiding American Muslims have embraced this poisonous rhetoric. More American leaders need to display the same courage and common sense as Gov. Christie, rejecting the tendency to cast suspicion on an entire community based on the actions of an infinitesimal number of its members.
The Obama Administration recently added another strong voice to this effort. In its recently released strategy to counter radicalization, President Obama recognized that
“[a]ctions and statements that cast suspicion toward entire communities, promote hatred and division, and send messages to certain Americans that they are somehow less American because of their faith or how they look, reinforce violent extremist propaganda and feed the sense of disenchantment and disenfranchisement that may spur violent extremist radicalization.
Perhaps this is a sign that government officials are coming to realize the harm that such actions and statements can cause. As Gov. Christie’s description of Judge Mohammed’s role in bringing together federal officials and the Muslim-American community illustrates, the cooperation of Muslim leaders can yield invaluable benefits to American counterterrorism efforts. But in order to reap these benefits, law enforcement must treat Muslims as partners, not as suspects.
Christie said that he was “happy that [Mohammed is still] willing to serve after all this baloney” because his time on the bench will benefit the citizens of New Jersey. We should all be happy for that. It takes courage to rise above the type of vilification and unwarranted criticism that American Muslims often endure. We can hope that statements such as Gov. Christie’s and President Obama’s soon become the rule rather than the exception, thereby rendering such displays of courage unnecessary.
On June 12, 2011, the New York Timesreported that the FBI plans to amend its Domestic Investigations and Operations Guide (“DIOG”), the set of rules that governs the Bureaus’ investigative activities, to extend “significant new powers” to investigators. A subsequent editorial registered concerns about these changes and their civil liberties implications. These reported changes are the latest in a series of alterations to FBI policies implemented in the last decade (discussed in detail in the Brennan Center report Domestic Intelligence: New Powers, New Risks) that have radically expanded the FBI’s power to investigate and collect intelligence information — often without any indication of wrongdoing — about Americans.
According to reports, the impending changes to the DIOG would allow agents to
conduct searches of commercial or law enforcement databases to gather information about individuals who are not the subject of any official investigation;
search an individual’s trash for the purpose of finding material that might pressure him or her into becoming a government informant at the “assessment” stage, when the investigation need not be based on any factual predicate; and
participate covertly in several meetings of groups, such as religious congregations or gatherings of political activists, without any applicable rules at all.
Just as troubling as the reported changes is the fact that the proposed rules themselves remain secret — as do some portions of the existing rules (most notably, those governing covert participation in group meetings). It is therefore impossible to fully evaluate the implications of the reported changes. Nor do we know what other changes have been proposed but not reported in the media.
In the wake of the reports of these changes, FBI officials challenged the Times’ characterization of the amendments, arguing that they are merely some minor “fine-tuning” of the existing rules. These official statements continue another trend: government efforts to downplay the significance of changes to the FBI’s investigative rules. Over the past several years, FBI and Justice Department officials have consistently rejected assertions that changes to the rules have extended new powers to the FBI. An examination of several of these statements shows, however, that they have been misleading, incomplete, or simply incorrect.
Unfortunately, in editorializing on the most recent changes, the Washington Post seems to rely on the FBI’s assurances, calling the changes “relatively modest and reasonable.” While this description of the changes is charitable at best, even the Post recognizes that such powers demand stringent oversight. The Post provides a list of steps that should be taken to prevent FBI excesses: First, the FBI should make the new rules public to the extent possible; second, Congress should “keep close tabs on how the new rules are applied”; and third, the President should nominate a new Justice Department Inspector General, the department’s internal watchdog, to replace the highly effective Glenn Fine who retired from the position several months ago.
This call for oversight is right on the mark, but the list is incomplete. In addition to these measures, the Brennan Center, the Bill of Rights Defense Committee, and Defending Dissent have called on the Senate Judiciary Committee to hold hearings on the new DIOG rules before they go into effect in order to determine how they will work, to insist that the FBI explain why they are necessary, to explore whether they are consistent with existing FBI policy and regulations, and to consider the many constitutional and privacy concerns they implicate.
The FBI should of course have the power to follow every lead. But agents can do that without using the highly intrusive tools permitted by the current rules, much less the even-more-liberal impending rules. Congress should not allow these changes to be mischaracterized as “fine tuning” and slipped through without scrutiny. This time around, a real inquiry is in order.
Radicalization is complex. Yet a thinly-sourced, reductionist view of how people become terrorists has gained unwarranted legitimacy in some counterterrorism circles. This view corresponds with—and seems to legitimize—“counter-radicalization” measures that rely heavily on non-threat-based intelligence collection, a tactic that may be ineffective or even counterproductive. Only by analyzing what we know about radicalization and the government’s response to it can we be sure that these reactions are grounded in fact rather than stereotypes and truly advance our efforts to combat terrorism.
In a New York Timesbloggingheads segment, the Brennan Center's Faiza Patel, author of the recent report Rethinking Radicalization, discussed law enforcement's attempt at understanding terrorism and how these theories of radicalization come into play. Arun Kudnani of the Open Society Institute joined the conversation.
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