Topic: Law and Civil Liberties

Retroactive Surveillance Immunity, Obama Style

There’s a lot to unpack in the Office of the Inspector General’s blistering 300-page report on illegal FBI abuse of surveillance authority issued last month, but I want to highlight one especially worrisome aspect, about which I spoke with The Atlantic’s Marc Ambinder earlier today.

The very short version of the report’s background finding is that, for several years, analysts at the FBI blithely and illegally circumvented even the minimal checks on their power to demand telephone records under the PATRIOT Act. I’ll go into this further in a future post, but there are strong indicators that the agents involved knew they were doing something shady. Thousands of records were obtained using a basically made-up process called an “exigent letter” wherein they ask for records with what amounts to an IOU promising legitimate legal process any day now. (In many of those cases, the legitimate legal process would not actually have been available for the records obtained.) Still more disturbing, an unknown number of records were obtained without even this fictitious process: Agents simply made informal requests verbally, by e-mail, or via post-it note. And hey, why bother with subponeas or National Security Letters when you can just slap a sticky on someone’s monitor?

Treated to a preview of the OIG’s damning conclusions, the FBI was eager to find some way to cover its massive lawbreaking. So they apparently crafted a novel legal theory after the fact, in hopes of finding some way to shoehorn their actions into federal privacy statutes.  On January 8—as in four weeks ago, years after the conduct occurred—the Office of Legal Counsel seems to have blessed the FBI’s theory, which unfortunately remains secret.  Democratic Sens. Russ Feingold, Dick Durbin, and Ron Wyden have asked the Justice Department for details, but at present we just don’t know what kind of loopholes DOJ believes exist in the law meant to protect our sensitive calling records.

Communications records are generally protected by Chapter 121 of Title 18, known to its buddies as the Stored Communications Act. The few snippets of unredacted material in the OIG report suggest that the FBI’s argument is that the statute does not apply to certain classes of call records. Presumably, the place to look for the loophole is in §2702, which governs voluntary disclosures by telecom firms.  There is, of course, an exemption for genuine emergencies—imminent threats to life and limb—but these, we know, are not at issue here because most of the records were not sought in emergency situations. But there are a number of other loopholes. The statute governs companies providing electronic communications services “to the public”—which encompasses your cell company and your ISP, but probably not the internal networks of your university or employer. The activity at issue here, however, involved the major telecom carriers, so that’s probably not it. There’s another carve-out for records obtained with the consent of the subscriber, which might cover certain government employees who’ve signed off on surveillance as a condition of employment. We do know that in some cases, the records obtained had to do with leak investigations, but that doesn’t seem especially likely either, since the FBI claims (though the OIG expresses its doubts about the veracity of the claim) that the justification would apply to the “majority” of records obtained.

My current best guess, based on what little we know, is this. The SCA refers to, and protects from disclosure to any “government entity,” the records of “customers” and “subscribers.”  But telecommunications firms may often have records about the calling activity of people who are not the customers or subscribers of that company. For example, reciprocal agreements between carriers will often permit a phone that’s signed up with one cell provider to make use of another company’s network while roaming. When these outside phones register on a network, that information goes to a database called the Visitor Location Register. You could imagine a clever John Yoo type arguing that the SCA does not cover information in the VLR, since it does not constitute a “subscriber” or “customer” record. Of course, it beggars belief to think that Congress intended to allow such a loophole—or, indeed, had even considered such technical details of cell network architecture.

My guess, to be sure, could be wrong. But that just points to the larger problem: The Justice Department believes that some very clever lawyerly reading of the privacy statutes—so very clever that despite the rampant “creativity” of the Bush years, they only just came up with it a few weeks ago—permits the FBI to entirely circumvent all the elaborate systems of checks and balances in place (or so we thought) to protect our calling records. If investigators can write themselves secret exemptions from the clear intent of the law, then all the ongoing discussion about reform and reauthorization of the PATRIOT Act amounts to a farcical debate about where to place the fortifications along the Maginot Line.

The Unrelenting Battle over Campaign Finance

Following on the heels of November’s gubernatorial elections in Virginia and New Jersey, the loss of Ted Kennedy’s Senate seat in Massachusetts two weeks ago was a devastating blow to Democratic Party hopes.  But it must have been especially devastating to President Obama, who promised an adoring University of Missouri crowd, just before he was elected, that “We are five days away from fundamentally transforming the United States of America.”  Yet it would appear, judging from the unrelenting commentary and from the president’s own behavior last week, that those losses pale in comparison to the government’s loss before the Supreme Court two days after the polls closed in Massachusetts.  For 11 days now the wailing over the Court’s Citizens United decision has not ceased.  Indeed, campaign finance regulation, intimately connected to incumbency protection, is a bedrock principle of modern liberalism.

Exhibit A is E.J. Dionne’s column today in the Washington Post – his second in a week on the subject.  Last week, railing against the “reckless decision by Chief Justice John Roberts’s Supreme Court and the greed of the nation’s financial barons,” he charged the Court with “an astonishing display of judicial arrogance, overreach and unjustified activism” and urged “a new populist-progressive alliance” to demand “legislation to turn back the Supreme Court’s effort to undermine American democracy” – including a bill prohibiting political spending by corporations who hire lobbyists, no less.

Today, however, Dionne has last Wednesday’s unseemly episode of Obama rebuking a silent Supreme Court to work with.  And, like the immortal Daniel Schorr on yesterday’s NPR Sunday Morning, he puts all the blame on Justice Samuel Alito for seeming to mouth, silently, “Not true” when Obama, before all assembled and a watching nation, tendentiously misstated the holding in Citizens United.  But Dionne doesn’t stop there, of course.  No, he thanks Alito.  You see, “Alito’s inability to restrain himself” brought a long-ignored truth to the nation:  “The Supreme Court is now dominated by a highly politicized conservative majority intent on working its will, even if that means ignoring precedents and the wishes of the elected branches of government.”  Likening Obama’s behavior to President Reagan’s writing a 1983 article criticizing Roe v. Wade – I didn’t make that up – Dionne chastises conservatives for their double standard:  “Reagan had every right to say what he did. But why do conservatives deny the same right to Obama?”  Where does one begin?

Turning finally to “the specifics of Obama’s indictment,” Dionne tries to defend the president’s misstatements, but unfortunately the precision ordinarily expected of such a wordsmith seems to have deserted him.  Citing Obama’s claim that the Court had reversed “a century of law” and also opened “the floodgates for special interests – including foreign corporations,” Dionne writes that ”Obama was not simply referring to court precedents but also to the 1907 Tillman Act, which banned corporate money in electoral campaigns.”  That’s not what the Tillman Act did:  It banned direct corporate contributions to campaigns.  Only in 1947 were independent campaign expenditures by corporations (and unions) banned – and more clearly so only in 1990, which is the ban the Court overturned.  Moreover, pace Obama, foreign corporations are still specifically banned from contributing anything of value “in connection with a Federal, State or local election.”  Thus, in claiming, without more, ”that the ruling opens a loophole for domestic corporations under foreign control to make unlimited campaign expenditures,” Dionne seems simply to be passing along what he’s read or heard from others.  Nothing in the Court’s opinion warrants that conclusion.

But it’s Dionne’s larger claim that most demands an answer – that an “activist” Roberts Court, exercising “raw judicial power,” is ”ignoring precedents and the wishes of the elected branches of government.”  That’s hardly the definition of “activism.”  That’s what the Court should be doing, where it’s warranted by the Constitution, whether the Court is defending the rights of blacks to attend unsegregated schools or of gays to sexual freedom or of corporate owners, the shareholders, to engage in political speech through their corporation consistent with their articles of incorporation and by-laws.  The claim that corporations aren’t people is a red herring.  Corporate owners are people, and their right to speak can take many forms.  Fortunately, we have a First Amendment, which protects not only corporate owners but E.J. himself from all but the error of his ways.

[Cross-posted at Politico Arena]

Manhattan Says No to Terror Trials

Today, Politico Arena asks:

Terror trials: Is it time for the administration to retreat and rethink? Is it generally mishandling the terrorism issue?

My response:

On no issue is President Obama getting acquainted with reality more clearly than terrorism, or so it seems.  He blazed into office, guns holstered, as the anti-Bush, putting Eric Holder’s Justice Department in charge, not of the War on Terror, a phrase he banished from his administration’s lexicon, but of “bringing those who planned and plotted the [9/11] attacks to justice,” as Holder put it in November when he announced that Khalid Sheikh Mohammed and four others would be given civilian trials in downtown Manhattan.  But as the manifold costs of such a trial became increasingly apparent, and as even New York Democrats have grown increasingly restive, the White House, it seems, has backed down.  We await the line of congressmen saying “Bring the trial to my district.”

How could it be otherwise?  The administration’s law-enforcement approach to terrorism has been unserious and folly from the start.  In an understated yet devastating piece in yesterday’s Washington Post, former CIA director Michael V. Hayden cataloged that folly, nowhere more evident than in the FBI’s handling of the would-be Christmas Day bomber, who was Mirandized and lawyered up long before he could be seriously interrogated by agents with the background to elicit the intelligence we need – not to prosecute terrorists, but to prevent future terrorist attacks.  The most telling revelation in Hayden’s piece came at the end, however.  In August, the government unveiled its High Value Detainee Interrogation Group (HIG) designed to interrogate people like the Christmas Day bomber, and it announced also that the FBI would begin questioning CIA officers about alleged abuses in the 2004 inspector general’s report.  Was the HIG called in to interrogate the Christmas Day bomber?  No – it has yet to be formed.  But the interrogations of CIA officers are proceeding apace.  So much for the administration’s priorities.  Is it any wonder that Scott Brown’s pollsters report that terrorism, and the administration’s mishandling of the issue, polled better even than Brown’s opposition to ObamaCare?

The Next Step after Citizens United

The debates following the Citizens United decision continue, thanks in part to President Obama’s criticism of the U.S. Supreme Court during the State of the Union address.  Keeping track of those debates might cause you to miss what may well turn out to be the next step in liberalizing our campaign finance laws, the case of SpeechNow.org v. Federal Election Commission which was argued last Wednesday before the entire U.S. Court of Appeals for the D.C. Circuit.

SpeechNow is a group of individuals with a clear mission: “SpeechNow would like to run advertisements urging voters to elect federal candidates who support full protections for First Amendment rights and to defeat candidates who are hostile to those rights.” The group has made sure that its members are independent of candidates for office and the political parties.

You would think they could set up the group and spend as they wish since SpeechNow is not tied to a candidate or party and hence cannot pose a threat of corruption. After all, the First Amendment protects speech by individuals, and the courts have only permitted regulations related to corruption (contribution limits) or public education (mandatory disclosure of spending).

Unfortunately federal law requires any groups that receives contributions of more than $1,000 during a calendar year or spends more than $1,000 during a year to register as a “political committee.” That status would mean disclosure of SpeechNow’s members and limits on contributions and spending. Fulfilling reporting and other requirements and observing the contribution limits would kill SpeechNow’s effort before it started. No group, no ads, no speech.

The Federal Election Commission argues that allowing speech by SpeechNow’s members would lead to corruption. Elected officials, they assert, will reward people who support favored speech even if those people are independent of a candidate or a party. Justice John Paul Stevens endorsed this corruption argument in Citizens United. He was dissenting and had the support of a minority of his fellow justices. The judges who heard the case for the circuit court seemed to believe Citizens United had weakened this sort of corruption argument.

Citizens United limited the power of the federal government over independent expenditures and speech by groups taking a corporate form. The reasoning in that case should apply with added force to individuals associating together to speak, individuals who have no ties to candidates or the political parties.

We’ll keep you up-to-date on the fortunes of the SpeechNow effort. For now, you can read more about the case at the Institute for Justice website or see an account of the circuit court hearing  here.

An Appalling Breach of Decorum

This morning, Politico Arena invites comments on Obama’s SOTU attack on the Supreme Court.

My response:

I join my Arena colleagues, Professors Bradley Smith and Randy Barnett, in condemning the president’s remarks last night singling out the Supreme Court for its Citizens United decision last week, which overturned law that the government itself admitted would even have banned books.  Not only was Obama’s behavior an appalling breach of decorum, but he didn’t even get his facts right.  As Brad, former FCC chairman, noted in his Arena post last night, and a bit more fully here, the decision did nothing to upset law that prohibits foreigners, including foreign corporations, from contributing anything of value to an American election.  Obama, the sometime constitutional law professor, should have known that.  At the least, his aides had plenty of time to research the question before he spoke.  This is just one more example of the gross incompetence or, worse, the indifference to plain fact that we’ve seen in this administration.

But it’s the breach of decorum that most appalls.  By constitutional design, the Supreme Court is the non-political branch of government.  Like members of the military, Supreme Court justices are invited to the State of the Union event, but they do not stand and applaud when the president makes political points that bring others to their feet.  For the president to have singled the justices out for criticism, while others around them stood and applauded as they sat there still, is simply demagoguery at its worst.  I would not be surprised if the justices declined next year’s invitation.  And Obama wanted to change the tone in Washington?  He sure has.

Fresh Surveillance Data Show Spike in Traffic Tracking

The Department of Justice is required to report annually to Congress on its use of an array of surveillance tools. These include so-called “pen register” and “trap-and-trace” orders (often combined as “pen/trap orders”), which give investigators realtime access to traffic data from a target’s telephone or e-mail/Internet accounts.  In combination with another type of court order, these are sometimes used to gather location tracking data on cellular users, but they’re primarily used to establish patterns of communication—to determine who the target is in contact with, and when. (Those in contact with the target may then come under further scrutiny.)

Unfortunately, there’s been no public reporting on the use of pen-traps since a five-year dump the Justice Department submitted in 2004.  It’s not clear whether Congress, at least, has been getting them—other such surveillance reports are typically posted on the DOJ Web site—but thanks to intrepid privacy researcher Chris Soghoian and the Freedom of Information Act, we now have statistics on the use of pen-trap orders. In 2002, the federal government sought 4103 pen register orders (affecting 6540 people’s phone lines).  By 2008, that number had risen to a whopping 11,126 pen register orders (affecting 13,998 people’s phones)—in other words, an increase of more than 171%. Bear in mind, that’s 13,998 people having their call behavior monitored in realtime, just at the federal level, and not counting foreign intelligence pen/traps under FISA. (I nevertheless use the first full year after 9/11 as a comparison point, since one might expect an uptick in terror-related criminal investigations.) It’s also not counting government requests for people’s historical call records—records that USA Today reported in 2006 were being vacuumed into a massive database by the tens of millions.

As the graph makes clear, it has also become more common for agencies to routinely obtain trap-and-trace orders (for data on incoming calls) when they obtain a pen register order (for outgoing calls), though the extent of the increase may be exaggerated because the U.S. Marshals Service, which appears to get combined pen/trap orders by default, did not provide separate statistics for trap-and-trace requests prior to 2004. The Justice Department also now appears to have begun tracking orders for e-mail and electronic networks, though it’s unclear whether these are being counted separately or represent a subset of the general pen/trap figures. In 2008, the FBI, DEA, and U.S. Marshals Service reported a total of 208 such orders.

What explains that substantial spike, at a lag of several years after 9/11? One possibility is that increasingly sophisticated tools for social network analysis and pattern-based data mining have made pen/trap orders a more valuable tool—or at least made them appear more valuable to investigators—for ferreting out suspicious patterns or uncovering organizational structures.  Fans of the justly-celebrated HBO series The Wire may recall the episode “Back Burners,” in which Detective Lester Freamon shows a map of the Stanfield crew’s communication patterns, suggesting that it’s typical of a drug-dealing organization. There’s another technological angle to consider: If automation and digitization of the request process make it relatively painless to get pen/trap data, agents may be more likely to request more of them.

Intriguingly, the U.S. Marshals Service accounts for a huge proportion of the increase. In 2002, they sought only 556 pen registers (compared with 1703 for the FBI and 1841 for DEA). That had grown nearly tenfold by 2008, to a stunning 5475 (far more than the 2092 sought by FBI or 3260 for DEA). This, surely, is the figure that most cries out for further inquiry.  Why is the USMS doing ten times the amount of traffic surveillance they conducted in 2002?  I’ve put in a query with their public affairs office, but I’d encourage any enterprising reporters out there to follow up as well.

NRA Cares More about NRA Than Gun Rights, Liberty, Professional Courtesy

Yesterday the Supreme Court granted the NRA’s motion for divided argument in McDonald v. Chicago.  What this means is that Alan Gura’s 30 minutes of argument time on behalf of Chicagoland gun owners just became 20, with 10 going to former Solicitor General Paul Clement, whom the NRA hired at the last minute to pursue this motion and argument.  (Full disclosure: Alan Gura is a friend of mine, and of Cato.)

The NRA’s motion was premised on the idea that Alan had not fully presented the substantive due process argument for selective incorporation of the Second Amendment – presumably out of an outsized concern for the Privileges or Immunities Clause arguments about which I’ve previously blogged and written a law review article.  This is a highly unusual argument and is a facial slap at Alan’s abilities as an advocate.  Sadly, it’s also typical of how the NRA has behaved throughout this case and before that during the Heller litigation – sabotaging Alan at every turn and showing again and again that, even in the face of winning arguments that fully support its legal positions, the NRA prefers to seek glory for itself rather than presenting the strongest case for its purported constituency of gun owners.

Alan rightfully opposed the NRA’s motion because the group’s participation at argument adds nothing substantive to the case. No one will ever know why the motion was granted, as the Court need not (and did not) provide any reasons.  Nonetheless, it’s a safe bet that this is solely a testament to Clement’s talent and reputation (notably, the motion was not filed by any of the NRA’s other excellent attorneys, who briefed and argued their case in the lower courts and in a cert petition and brief before the Supreme Court).

I have great respect for Paul Clement, and have worked with him by filing amicus briefs in two cases he’s already argued this term, but I do take issue with his repeated suggestion that the motion’s purpose – and the reason behind its granting – was so that “all the avenues to incorporation, including the due process clause, are fully explored at the argument.”  This kind of comment – again impugning Alan’s litigation strategy – is uncalled for, and renews concerns over the NRA’s conduct.

Throughout this case, Alan has consistently and forcefully advocated for the Second Amendment’s incorporation under the Due Process Clause.  That didn’t change when his case was taken up by the Supreme Court.  The thing is that the due process arguments are not all that complex, and simply do not merit the same care and attention in the briefs as arguments based on the Constitution’s actual text and history.  A first-year law student who’s taken constitutional law – let alone a Supreme Court clerk – could write a due process incorporation argument in her sleep!  In any event, the oral argument will be driven by the justices’ questions, not by any long soliloquies by counsel.  Alan’s – and all attorneys’ – job is to be ready for anything.

If the NRA were concerned about the final outcome of the case, it would be unlikely to attack Alan’s strategy or question his preparation (an odd way to be “helpful” to one’s side).  It is not a stretch to predict that this case will be favorably decided at least in part on due process grounds, however, so what we are seeing here is likely an attempt by the NRA to position itself as responsible for such a victory – and that Alan isn’t.

Ultimately, then, the NRA is engaging here in fundraising, not liberty-promotion or ethical lawyering.