No Checks or Balances in Warrantless Wiretapping Despite Holder's Assurances

BY TREVOR TIMM, Electronic Frontier Foundation

Attorney General Eric Holder gave a much publicized speech at Northwestern law school on Monday, in which he attempted to explain the Obama administration's constitutional authority for killing U.S. citizens abroad without judicial oversight. Holder in part claimed that there is a difference between "due process" and "judicial process", the latter of which--according to him--is not guaranteed under the Constitution. The speech was predictably and widely criticized in legal circles on Fifth Amendment grounds (see here, here, here, here, and here), but an overlooked section of his speech should also give constitutional experts pause: Holder's stance on the FISA Amendments Act (FAA) and warrantless wiretapping.

Holder spent a portion of his speech arguing that legal tools used to fight terrorism (excluding the killing of al-Awlaki and other American citizens overseas) are rightly subject to "check and balances" and "a comprehensive regime of oversight by all three branches of government." He curiously used section 2702 of the FAA as his prime example, a law he says "protect[s] the privacy and civil rights of innocent individuals."

As EFF readers will remember, the FAA is the statute Congress passed giving immunity to telecom companies despite their participation in the NSA's massive warrantless wiretapping program, which the New York Times first exposed in 2005. EFF and a host of other civil liberties groups have been involved in litigation challenging the constitutionality of warrantless wiretapping for years.  

Former member of the Obama administration's Office of Legal Counsel Marty Lederman explains section 702 of the FAA "permits the NSA to intercept phone calls and e-mails between the U.S. and a foreign location, without making any showing to a court and without judicial oversight, whether or not the communication has anything to do with al Qaeda--indeed, even if there is no evidence that the communication has anything to do with terrorism, or any threat to national security."  All told, the "collection systems at the National Security Agency intercept and store 1.7 billion e-mails, phone calls and other types of communications" every day, according to the Washington Post.

But according to Holder, since secret FISA courts approve executive branch requests to collect "identified categories of foreign intelligence targets, without the need for a court order for each individual subject," the law is "subject to appropriate checks and balances." Given it targets large swaths of email--much of which undoubtedly involves Americans with little recourse to challenge the surveillance--due process is lacking from the entire procedure. And after the collection, the government has fought any judicial overview at all.

Holder and the Justice Department have been fighting any civilian court checks and balances in the warrantless wiretapping process for years--trying to keep that law from ever being challenged in front of a federal judge. In three major cases making their way through the federal court system (two involving EFF), Obama's Justice Department has followed the Bush administration's lead and asserted the once-rarely used "state secrets" privilege in an attempt to have the lawsuits dismissed with no hearing of the evidence.

In Jewel v. NSA, EFF is suing the NSA and other government agencies on behalf of AT&T customers to stop the illegal, unconstitutional and ongoing dragnet surveillance of their communications and communications records. Evidence in the case includes undisputed documents provided by former AT&T telecommunications technician Mark Klein. This evidences shows AT&T has routed copies of Internet traffic to a secret room in San Francisco controlled by the NSA. That same evidence is central to Hepting v. AT&T, a class-action lawsuit filed by EFF in 2006 to stop the telecom giant's participation in the illegal surveillance program.

In Al-Haramain v. Bush, an Oregon chapter of an Islamic charity, sued the Bush administration for illegal surveillance of its organization and attorneys after a secret document was inadvertently disclosed to the plaintiffs by the government. The document demonstrated, according to the plaintiffs, that they were subjected to unlawful electronic surveillance outside the scope of FISA.

And in Amnesty v. Clapper, a host of labor, media, and human rights organizations are suing the NSA for fear their communications are being monitored when they talk to people overseas. The plaintiffs' "work depends on their ability to communicate confidentially with clients, witnesses, sources, and victims of human rights abuses," according to ACLU's deputy legal director Jameel Jaffer.

In all of these cases, the Justice Department has argued the "state secrets" privilege bars the cases from proceeding on the merits despite ample publicly-available evidence. In fact, the government has argued even if all the allegations of warrantless wiretapping are true, that the plaintiffs cannot challenge the constitutionality of FISA because exposing the program in court would compromise national security.  The Justice Department has been attempting to use the "state secrets" privilege to essentially wall off the judicial branch from ruling warrantless wiretapping unconstitutional.

While he claims the FAA upholds the American ideal of "check and balances," Holder is hiding behind government secrecy and treating warrantless wiretapping much the same way he has treated the al-Alwaki killing. He famously refused to declassify the legal memo justifying the drone strike, opposed giving standing to al-Awlaki's  father to challenge his "hit list designation" in court, and the opposed a suit by the ACLU to reveal evidence against the three American citizens killed by drones strikes in Yemen. With warrantless wiretapping, checks and balances have gone out the window, and the Justice Department has essentially refused to allow program to be overseen through a "judicial process."

Holder also mentioned yesterday, "Reauthorizing [FISA Amendment Act] authority before it expires at the end of this year is the top legislative priority of the Intelligence Community." It will be EFF's top priority to oppose it.