Is the FISA Court Issuing Anticipatory Warrants?:
Justice Department officials gave a background briefing on the new FISA Court/NSA arrangement that provides lots of clues about what is happening. Here are the key excerpts from the transcript of the briefing:
An anticipatory warrant lets the government conduct surveillance when a specific set of triggering facts occurs. The judge agrees ahead of time that if those facts occur, probable cause will exist and the monitoring can occur under the warrant. The idea is that there isn't enough time to get a warrant right at that second, so the warrant can be "pre-approved" by the Judge and used by the government when the triggering event happens.
I don't know if this theory is right, of course. But it seems to be consistent with the clues in the DOJ briefing. Why are these orders taking a lot of time to obtain? If my theory is right, it's because the triggering facts that amount to probable cause in a terrorism investigation presumably are complicated. There are cookie-cutter drug cases, but I gather there aren't any cookie-cutter terrorism cases. It probably takes a lot of negotiation with the FISA court judges to figure out what different sets of facts they'll accept as triggering events that satisfy probable cause. Plus, the Court might have required review every 90 days instead of the one-year max allowed under FISA because the FISA court judges would want to know if their trigger is working out in its application.
What's the mystery legal development that helped make this possible? If my guesses are on the right track, it's probably the Supreme Court's decision in United States v. Grubbs, which was handed down on March 21, 2006. The Grubbs case is the first Supreme Court decision approving the use of anticipatory warrants.
Anyway, that's my best guess right now. It's not a perfect fit with all of the clues, but seems pretty close. Your thoughts?
I really can't get into the particulars of the orders, but just like any orders from the FISA court, they're for a period of time. These are orders for 90 days. There's more than one order. . . .What's going on? As with everything about this program, we can't be sure; we don't know the facts, so we're stuck with making barely-educated guesses. But it sounds to me like the FISA Court judges have agreed to issue anticipatory warrants. The traditional warrant process requires the government to write up the facts in an application and let the judge decide whether those facts amount to probable cause. If you were looking for a way to speed up that process — and both sides were in a mood to be "innovative" — one fairly straightfoward alternative would be to use anticipatory warrants.
I will say that these are not -- these orders are not some sort of advisory opinion ruling on the program as a whole. These are orders that comply with the terms and requirements of the FISA statute, just like other orders issued by the FISA court.
I will say, however, that the orders we're talking about here are not some cookie cutter order where you can just take a book down off the shelf with a model application and slap it together and file it with the court.
These orders are complex. It took a long time to work on them. People have been working very hard on this for almost two years actually, and it has just now been approved a week ago by the judge of the FISA court. . . .
I will say that these are complex orders, that the approach taken in the orders is innovative, as indicated in the Attorney General's letter. And I think beyond that, I'm not going to get into specifics.
These orders, however, are orders that have taken a long time to put together, to work on. They're orders that take advantage of use of the use of the FISA statute and developments in the law. I can't really get into developments in the law before the FISA court.
[The speed of the new process] certainly was a critical and necessary in determining whether this was an alternative that was available that continued to protect national security and achieve the objectives that we're achieving. So, regardless of what happened, that was a critical requirement, and the President and the DNI needed to be satisfied that there wouldn't be any significant operational impact, continue to do everything we needed to do.
[L]et me just say that when a FISA judge approves a FISA application, at the time he approves the FISA application, he needs to make the determination of probable cause as provided for in the statute. That determination is made, and that's, like any FISA application, those requirements need to be made.
I'm not going to discuss precise modifications. Obviously the details of the program were never publicly discussed. The general contours of the program were, and as the letter from the Attorney General explains, the general contours under these orders allow us to do the same thing and to target the same types of communications. And critically the determination was made that operating under the orders that we've obtained here provides the speed and agility necessary to effectively conduct that surveillance in a way that will protect -- there's no compromise in national security.
[The recent change in the law that helped facilitate this change is not] a [FISA] Court of review decision. . . . [W]e take full advantage of all the relevant case law. That includes our own approach to the statute. That includes rulings from the FISA Court. That includes significant precedents from the FISA Court, other related things. But I'm obviously not in a position to discuss every significant ruling that deals with FISA.
An anticipatory warrant lets the government conduct surveillance when a specific set of triggering facts occurs. The judge agrees ahead of time that if those facts occur, probable cause will exist and the monitoring can occur under the warrant. The idea is that there isn't enough time to get a warrant right at that second, so the warrant can be "pre-approved" by the Judge and used by the government when the triggering event happens.
I don't know if this theory is right, of course. But it seems to be consistent with the clues in the DOJ briefing. Why are these orders taking a lot of time to obtain? If my theory is right, it's because the triggering facts that amount to probable cause in a terrorism investigation presumably are complicated. There are cookie-cutter drug cases, but I gather there aren't any cookie-cutter terrorism cases. It probably takes a lot of negotiation with the FISA court judges to figure out what different sets of facts they'll accept as triggering events that satisfy probable cause. Plus, the Court might have required review every 90 days instead of the one-year max allowed under FISA because the FISA court judges would want to know if their trigger is working out in its application.
What's the mystery legal development that helped make this possible? If my guesses are on the right track, it's probably the Supreme Court's decision in United States v. Grubbs, which was handed down on March 21, 2006. The Grubbs case is the first Supreme Court decision approving the use of anticipatory warrants.
Anyway, that's my best guess right now. It's not a perfect fit with all of the clues, but seems pretty close. Your thoughts?
Related Posts (on one page):
- More Support for the Anticipatory Warrant Theory:
- Is the FISA Court Issuing Anticipatory Warrants?:
My common sense, and the dicta about surveillance contained in the Grubbs opinion, seems to regard a single telephone line as the analog to such physical premise. Under what theory could a whole class of telephone lines (or virtual connections) be pre-approved for probable cause under FISA?
Just speculating: Perhaps the theory involves data-mining algorithms to narrow down the set of all international calls or messages as the triggering condition. But if that is the case, the pre-approved "premises" would be a very large set.
Such a theory would fit the description of being "complex and innovative" -- perhaps too much so. But under the FISA court structure, if a single FISC judge approves an "innovative" but controversial court order, there is no mechanism for review.
The problem I see with the idea of having lists of phone numbers or the like pre-approved is that that only solves part of the problem - that of a targetted individual calling a non-targetted person in the U.S. (whether here legally or not).
The other problem is that encountered when rolling up a terrorist network in the Middle East. By all indications I have seen so far, the general practice is to seize phone numbers however they can (often from cell phones' histories and phone books), and feed those to the NSA in real time. Then, those numbers are watched, and possibly down another level. The problem is that the numbers typically go cold w/i a day or so, as word gets out that networks have been compromised. Any preapproval of numbers from this system would not be timely enough to work effectively in the case where one of those just-acquired numbers called someone here.
Which is why I am tending right now to a theory that they also have flow-chart type approval for short term surveilance. Thus, if the NSA can show, for example, that a phone number here was obtained in a raid in Iraq of a terrorist safe house, then they can surveil it for a couple of days under this program.
The primary problem all along has been when a suspect phone number either calls someone here in the U.S., or is called from here. The NSA may not have any idea of who is on either end of the call, just that the foreign phone number is fairly suspect.
Keep in mind that most often, the phone numbers are acquired first, and only after some legwork, can the person tied to a specific phone number be determined - and that is really only if the phone is here and the FBI can be talked into running it down (and that takes time, time that they don't typically have). It is much harder if the phone number being targetted is overseas in, for example, some of the less stable parts of the Middle East.
That is to say: If the conditions for an anticipatory warrant are not met, the president has given up his authority by not resigning the TSP, and the typical process for obtaining an order from FISC is so arduous that new procedures were needed, did the government now deny themselves the ability to conduct that surveilance by not having an "efficient method" by which to execute it? Would there be some catchall that says "or any other behaviors deemed by the AG to be...."? If not, did the government potentiall create a class that they cannot go after? If so, does that really change the TSP other than to give the guise of over-sight?
I am probably wrong, but I thought that attempts to monitor conversations of Set B and a party of neither A nor B required a separate warrant application under FISA. Perhaps these new orders attempt to claim that conversing with Set A, by itself, is the condition precedent for short-term monitoring of Set B's conversations? While this would save having to go back to the FISA court to ask to monitor each number Set A talks to, would this legal under the 4th? Is monitoring domestic communications with a filter to flag content with key words/voiceprints, but without recording other content, legal? How about recording domestic communications, but not allowing access to those recordings w/out a warrant (either Title 3 or FISA)?
Thanks again for providing this forum for cordial thought-provoking legal discussion.
What has to be remembered here is that technology almost assuredly moved intereception to w/i the U.S., and thus made 50 U.S.C. 101(f)(2) applicable, as opposed to (f)(1) when the interception is made outside the U.S. The difference is that under 1801(f)(1), the interception must be of a targetted U.S. person. 1801(f)(2) however also applies to non-targetted and/or non-U.S. persons in the U.S.
So, under 1801(f)(1), surveiling calls from/to Set A to/from the U.S. would not be covered by FISA because the person in the U.S. was not targetted. But it potentially is under 1801(f)(2) since targetting is irrelevant.
Also note that the structure of FISA is really aimed at surveiling specific identifiable people. It was crafted during a time of fixed land lines that could be easily connected to identifiable people, not disposable cell phones. As a result, it is likely that even getting warrants for all the Set A numbers would be problematic.
In Grubbs, the occurrence of the "triggering condition" — successful delivery of child porn by the USPS — would plainly establish probable cause for the search, and the affidavit established probable cause to believe the triggering condition would be satisfied:
"[T]he probability determination for a conditioned anticipatory warrant looks also to the likelihood that the condition will occur, and thus that a proper object of seizure will be on the described premises. It must be true not only that if the triggering condition occurs (there is a fair probability that contraband or evidence of a crime will be found in a particular place) . . . but also that there is probable cause to believe the triggering condition will occur."
There, the party was known and the USPS's delivery of a package was near certain. I would posit that Grubbs thus only supports an anticipatory warrant (especially a secret one) if the affidavit avers that a _specific_ party on the phone is actually a terrorist or that some other crime will occur (e.g. RICO, conspiracy), not just that there are terrorists who use phones. After all, there are some pedophiles somewhere who receive mail but you still need a warrant to search. Bush could conceivably answer that he doesn't need a warrant at all for the reasons in USDOJ's memo to Sen. Schumer, or that a computerized analysis based on other collected characteristics has sufficiently narrowed the field (Scalia did only require a "fair probability"). The problem with the latter point (others have covered the former!) is the same problem the RIAA and MPAA have when suing people, based on IP addresses, who don't even own a computer. Of course, the government's databanks presumably have much more complete information than do those groups'.
Also, what is the "triggering condition" in this case? If you define it as "this person checked out the Anarchists' Cookbook at the library," well, that's not really anticipatory since you know it occurred. That would be a normal warrant. And surely it can't be that "this person uses the library, and from his internet reading history we can tell that he wants to blow something up (or is Muslim), and so if he checks out the Anarchists' Cookbook he's going to commit a crime." U.S. Constit. Ams. 1, 4, 9. It's worth nothing, as has Prof. Akil Amar, that the Bill of Rights give a special place to papers and writings.
But this is all speculation - as Prof. Kerr points out, we just don't know. Which is a problem in itself for people who care about privacy; maybe not so much for those more concerned with security.
"Here is a possible scenario to explain this new order from the FISC. Previously a lot of collection of wireless communications was undoubtedly done by targeting persons outside the US, and for that no FISC order is needed: such an order is only needed for radio communications sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person. Other collection outside the US undoubtedly just scooped up whatever was available and was then analyzed using sophisticated software to produce leads. But the Gonzales letter refers to "targeting for collection." Obviously, if person #1 in, say, Waziristan is in regular communication with person #2 in Manhattan it would be possible to target person #1 in Waziristan for collection, and end up collecting person #2 in Manhattan, without getting an order. If in the course of that collection it becomes apparent that person #2 in Manhattan is also talking to person #3 in, say, Baluchistan, person #3 could also be targeted, resulting in person #2's communications being collected in that instance as well. All without an order from the FISC, since technically the persons targeted were outside the US.
"From published accounts, it appears that the FISC balked at accepting information that was collected in this manner for probable cause purposes when it was submitted by the FBI in FISA applications targeting US persons. It may be that the FISC considered that this type of operation was an end run around them. The deal might then be something like this: the FISC is informed of probable cause against the non-US persons, if those persons are being targeted for collection when they communicate with persons inside the US. That keeps the FISC in the loop and they get to say they're monitoring intel operations for possible abuse: they can say that whatever submissions they receive must be sworn to, and so that means there is accountability. But the order that the FISC has now issued may mean that they will drop objections to accepting NSA information for purposes of probable cause in FISA applications that target US persons, now that a chain of accountability has been established that covers all the information that is submitted to the FISC.
"This is speculation, but I think there has to be something in this for both the Government and the FISC. I think the Government would win on any challenge to the existing FISA law, and no one really has the stomach to amend FISA. On the other hand, the Government is tired of being beaten up with baseless accusations of lawlessness. This way they accomodate feelings on the FISC, but don't yield on principle."
I am aware of no such "published accounts," and I do not trust powerline to paraphrase accounts it does not even identify.
FISA already has provisions which are, in some sense, "anticipatory" (72 hour rule, 15 day exception for wartime). How would the hypothetical new policy differ from this except, perhaps, in the time frame? And if it doesn't meet the time frame, then how could it be consistent with FISA?
That leads me to speculate about a different variant of Orin's theory that anticipatory warrants are in play here.
Suppose that a phone number, email address or IP of a U.S. person is harvested from telecom traffic or otherwise comes to the attention of the NSA. But even though these electronic "premises" are identified, not enough is known at that point about the user to provide probable cause that he is an "agent of a foreign power." That is because the statutory definition of such an "agent" requires that he "knowingly" does one or more enumerated bad things. (That is why, I think, the administration has avoiding using this term of art in describing the parameters of the TSP. It has used looser terms such as "associated.")
It has always seemed to me that this FISA standard could not easily be met if about all that is known is the phone number, etc. There is a chicken-and-egg problem with listening in or reading content to find evidence of such probable cause, before such probable cause is established.
Suppose the "innovative" and "complex" new court orders include some sampling, algorithmic content analysis or other methodology dedicated to learning about whether there is probable cause the target is an agent. (This would comprise the triggering condition of an anticipatory court order.) Suppose further that the enhanced minimination procedures include rules to compartmentalize and discard everything intercepted before such probable cause is established. (Minimization generally is all about discarding content intercepted when it does not qualify under the court order, such as inadvertant conversations by innocent parties.)
Could it be that a FISC judge has approved such bootstrapping beyond anything previously allowed before Grubbs?
The courts can and have twisted the "exigent circumstances" exception in so many amazing ways that IMO FISA's time requirements are only advisory whenever a FISA judge wants them to be advisory. And, unless an appeal is made to the D.C. Circuit or somebody leaks a FISA ruling, it will be difficult for us to find out when a FISA judge stretches "exigent circumstances" in some outlandish way.
I have no idea if anything like that has happened here, and mention this mostly to illustrate how difficult it is to draw conclusions from the available information. That certain statements raise supicions is as much as we can do at this point. I tend to side with Mark Levin and JAO that this looks more the Bush administration caving than a victory for it, but that is only a suspicion.
It also well illustrates how useless criminal justice concepts are in war. The concept underlying FISA can work only if FISA's warrant requirements are limited to the admissibility of evidence in criminal proceedings. This is due both to the nature of this war, and to the current technological state of electronic surveillance.
Fair enough, but then does it make any real sense to describe the new policy -- whatever it may be -- as involving "anticipatory" warrants?
Please do not lump my opinion in with Mark Levin's ill-informed, ideological drivel.
Also, note that as I learn more I am warming to Orin's theory that the administration may have made substantive gains with the new FISC orders.
You accurately channel Scalia's dicta from United States v Grubbs, which supports Orin's theory that the "anticipatory warrant" model is in play here:
Apply that model by extension to a FISA surveillance situation, which does not involve probable cause of contraband (the triggering condition for a Title III warrant), but does require probable cause that the party is a foreign power or "agent of a foreign power," and you might convince a FISC judge to bootstrap the surveillance order.
If what some have suggested here is going on - i.e, the NSA simply has a long list of enemy suspects and numbers and anytime someone calls a person on the list, that is a "triggering" condition to have their own conversation tapped: There is no probable cause prior to the overhear's use as to that individual. Afterall, he may just be a telemarketer calling or it could be the wrong number. Thus, there would have to be a new definition of probable cause to conclude that any time a person calls any number in list A, he is ipso facto 'associated' with the person on the list and there is probable cause to believe he is a criminal/jihadist/al-quadea. Would a telemarketer innocently calling a number on list A be, from the moment of the call, subject to arrest based on probable cause that he is al-quaeda? I doubt that. Perhaps they have simply changed what is considered "probable cause" to wiretap, as opposed to "probable cause" to arrest. This whole area is murky and without any information, we are of course left to only guess.
This makes sense, but FISA takes this into account to some degree with the 72 hour rule. It's not clear to me how the new method would be both "anticipatory" and comply with the 72 hour rule unless (a) there's really nothing new and the Administration caved; or (b) we're not being told all the relevant facts.
I think the real problem with invoking the 72-hour "emergency" procedure has always been that it has unpleasant consequences if the FISC judge decides against retroactively approving such a warrant. The court then has a duty to notify the innocent targets that they were surveilled, so some Dearborn soccer moms might have received such notice.
With an anticipatory warrant, issued in advance but contingent upon some triggering condition, that provision would not apply. If my speculation is correct, the record of calls that did not bear fruit of sufficient evidence of probable cause would just be quietly destroyed under minimization procedures.
Instead, I think the DOJ wanted something that allowed them to data mine/do broad based telephone surveillance without very particularized suspicion. I think, somehow, they got this from a judge. Perhaps there was some modification on how much information or what type of information could be obtained without warrant, but if some combination of suspicion data was found, that would provide enough for a warrant to issue. Again, just guessing.
Suspicion of motives is proper when considering acts of the Bush administration, which seems to pick fights it should avoid, and avoid those it should fight.
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as lawyers, I assume you will be as down on this as you were on the recent Stimson statement, or are you waiting for them to come for you?
The Washington Post reports
And the New York Times says
I am not sure exactly what "individualized" and "hybrid" might mean, but the concepts do not seem inconsistent with the two phases of the anticipatory model (identified targets combined with triggering criteria).
It looks good on paper, and is repeated cited by those opposed to the TSA to rebut the point that bypassing FISA is necessary, etc. But the one person who really does know how well it works has repeated said that this provision provides very little assistance. Anything to the contrary is wishful thinking.
The communications companies have, at the government's request, routed trunk traffic unnecessarily thoroughh communications satellites so the NSA can read traffic going through those and claim that the interceptions took place outside the U.S. I don't know how extensive this practice is, but it has been happening for years. As I recall, a former NSA staffer mentioned that on this forum during the discussions after the NY Times published the stories about communications surveillance.
This and the "header" problem (emailed/instant message communications must be opened to determine if either the poster or the recipients are in a foreign country, such that purely domestic communications are monitored too) is why FISA is technologically obsolete. It can no longer serve its intended purpose, and has become solely a vehicle for political games.
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