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More Support for the Anticipatory Warrant Theory:
The latest news on the FISA Court's "innovative" approach to issuing FISA warrants seems to me to reinforce my guess that the FISA Court has begun issuing anticipatory warrants. The New York Times reports: " A Congressional official who has been briefed on the new procedures called it a hybrid of individual warrants and broader approval." And the Washington Post says that "Four other people who have been briefed on the program, who spoke on the condition of anonymity because the program is classified, described it as a hybrid effort that includes both individual warrants and the authority for eavesdropping on more broadly defined groups of people." (Hat tip: JaO)

  This is exactly what you would expect with anticipatory warrants. In these circumstances, the FISC judges would have issued warrants authorizing DOJ to monitor in specific classes of cases in which the FISC judges believe probable cause will exist. In some cases, the trigger of the anticipatory warrant will be general, involving eavesdropping on a broadly defined group. In other cases, it will be very specific, making the warrant quite individualized. Thus the warrants will act as "hybrids" between traditional warrants and orders allowing more blanket monitoring.

Related Posts (on one page):

  1. More Support for the Anticipatory Warrant Theory:
  2. Is the FISA Court Issuing Anticipatory Warrants?:
DG:
Prof. Kerr,

Would you mind explaining this a bit more for those of us who are having a difficult time understanding the idea of anticipatory warrants in the FISA context? What might a more "general" anticipatory warrant look like? What about a more "individualized" one?

Thanks!
1.19.2007 2:57am
txjeansguy (mail):
Prof. Kerr, I think you're on to something, as I described at length in the prior post. But the question remains what these triggering conditions might be. In other words, how is the government profiling us?

In Grubbs, which, as you say, is the first Supreme Court case approving of anticipatory warrants, the triggering condition (delivery of child porn ordered by defendant by the USPS) was certain to happen (although J. Scalia descibed it as "fairly probable) and that would clearly constitute a crime. Can Grubbs be stretched to sanction this type of general warrant, which is generally disfavored? Also, this program presents privacy and First Amendment concerns not present in Grubbs.
1.19.2007 4:28am
Just an Observer:
If the targets are identified as a class -- rather than by name, phone number, email address, etc. -- I still have difficulty understanding how this is consistent with the model described in Grubbs.

However, if the "class" were a set of phone numbers, addresses, etc., discovered by something like network pattern analysis (algorithms that identify clusters of interrelated communicants), that seems more reasonable.

I still suspect that some kind of sampling or content analysis, under the protection of the minimization procedures "above and beyond" what has been typically required for FISA, may also be involved as part of the trigger. It would be, to some extent, authorized and "anticipatory" fishing to establish that the targets "knowingly" act as "agents of a foreign power."

Although we still don't know the details, what emerges from the Gonzales testimony and the leaks from the briefings is that the new FISA court orders do seem to have expanded the envelope of what FISC judges have allowed in practice. Although the theory might have been waiting to be discovered )or invented) I can see how the legal support was bolstered by the Grubbs decision issued 10 months ago.

The timing is still interesting. While DOJ lawyers may have been exploring this theory over time, they still may have presented such FISA applications fairly recently as a matter of tactics. And motivating events for this change of tactics still include the impending litigation events, as well as the the failure to obtain a legislative bailout before the November elections changed the political playing field.

And while Gonzales insists in general terms that the surveillance being conducted under the TSP can still be conducted under the new FISA court orders, the truth of that assertion in specific terms is unknowable because the judges have not approved the factual basis of the specific prior surveillance.
1.19.2007 8:29am
PDXLawyer (mail):
I'm much more disturbed with the idea of warrants dealing with "broadly defined groups" than with the idea of them being anticipatory or conditional. I don't have a deep understanding of the 4th Amendment, but my recollection is that it requires warrants to "particularly describe" the search authorized. My recollection also was that this was a reaction to the once common British practice of using "writs of assistance," which authorized officials to conduct searches with respect to broadly defined groups, rather than particlarly identified individuals or places.

What am I missing here?
1.19.2007 8:33am
John (mail):
The good news seems to be that the program continues relatively unchanged, but this time with the cooperation of the court.

The bad news is that the MSM seems to be treating this as an abandonment of the program, or a "surrender" by Bush, when the truth is the opposite.

Of course, some people may wish to reverse the "good" and "bad" news descriptors.
1.19.2007 8:55am
Angus:
Depending on what these "anticipatory warrants" might look like, they could end up looking like "writs of assistance," which the founders certainly intended to do away with under the 4th Amendment.
1.19.2007 9:22am
Just an Observer:
I think it is worth noting that none of the senators at yesterday's Judiciary hearing who also happened to be members of Intelligence, and thus presumably benefitted from a briefing, questioned the legitimacy or desirability of the FISA court orders. FWIW, the same goes for Specter, who received a briefing. (I gather that Leahy had not yet been briefed.)

There still may be a tussle over obtaining the "classified" court orders. Gonzales signaled that the next call in that dance will be made by his boss.

Both Feingold and Feinstein, who have been critical of the TSP (with serious differences of degree and nuance), seemed to signal closure over the fundamental question of whether FISA's core requirement of judicial review has been satisfied. Only Schumer seemed to be raising questions critically about the generality of the FISC court orders' terms.

In any case, no one seems eager to attack the court. I think Congress does have a legitimate interest in knowing the contours of such FISA warrants, for purposes of policy consideration. But that is a rather different matter, and I doubt that there is much political interest in constraining such an expansion of the FISA warrants' envelope. If anything, the political trend on such policy issues has been in the other direction, with centrist Democrats seeking somehow to move the balance of security versus civil liberties closer to security, but only incrementally. (The Feinstein bill in the last Congress was an example.)

So as far as the question of whether such surveillance will be allowed, there seems to be a copacetic consensus. This aligns with the center of public opinion. Folks seem to want terrorist suspects surveilled, but they want it done legally.

However, conducting the surveillance was only one objective of the President. The other was expanding executive power.

On that issue, Bush again is retreating from judicial review, while claiming in public that he is not. He failed to establish an expanded legal precedent, as he failed in Hamdi and Hamdan. But so far, he has established a de facto political precedent in that he apparently broke the law for five years without suffering explicit consequences.

As an aside, I find it remarkable that we apparently are witnessing the denouement of a major historical drama, and few seem to care.
1.19.2007 10:05am
Visitor Again:
Well, I care and I think it outrageous that, again, the Bush Administration apparently is getting away with flouting the law.

There has been a public uproar about the warrantless interception program. The Bush Administration turns tail when a Democratic majority takes office in Congress, but won't explain how it is now complying with the law. There's a word for this: arrogance.

A letter has gone out to the Clerk of the Court of Appeal in the case challenging the validity of the program and apparently the Bush Administration is prepared to argue the case is moot. We may never found out the extent to which the Bush Administration violated the law.

Meanwhile, Gonzales played cute with Congress and we are not to know, even in the most general terms, the procedures the Bush Administration is pursuing in securing these warrants. We're presumptively entitled to know, and there appears no obvious reason we should not know. Gonzales merely says he's not going to get into it and doesn't bother to offer any justification for secrecy.

Secrecy breeds distrust, and there are many who don't trust the Bush Administration to do the right thing in electronic surveillance or, for that matter, in anything to do with national security. Because of the overriding compulsion to secrecy, there's simply no accountability for anything to do with national security, no Congressional oversight or even review, no judicial review, no knowledgeable public feedback. We need to take our government back from those who wish to hoard power for the sake of hoarding power.
1.19.2007 11:54am
MnZ (mail):
Visitor Again,

Take a deep breath and repeat after me: "Democrats control Congress now."

If there are any shenanigans to be found, they have an incentive to find them. However, you should be prepared for the event in which Democrats on the Intelligence Committee take a look at the program and say, "Well, it seems reasonable."

Government secrets can be a good thing. Let's keep that in mind.
1.19.2007 12:02pm
Daniel S (mail):
As long as we're on the subject of the hearing yesterday with Gonzales, anyone care to comment on his rather surprising suggestion that the constitution does not necessarily grant habeas corpus to everyone, only defines conditions underwhich it might be revoked from those undefined individuals that have it.

Does this strike anyone as an odd position to be taken by a sitting AG?
1.19.2007 12:22pm
Mark Field (mail):

There has been a public uproar about the warrantless interception program. The Bush Administration turns tail when a Democratic majority takes office in Congress, but won't explain how it is now complying with the law.


To me, the most significant point in the controversy was the Administration's refusal to abide by the law. I always considered the substantive merits of FISA to be negotiable. I don't know enough of the facts to judge whether changes are necessary due to changes in technology. Given that view, the fact that the Administration is now abiding by the formal terms of the statute seems to me a defeat for it. It's only disturbing that, as JaO commented, we've gone through a Constitutional crisis and nobody seemed to care that much.

This doesn't mean I'm happy with the current situation. As you rightly say, secrecy breeds distrust and I don't trust this Administration. Nor am I confident that the latest ruling accurately interprets the law (and, of course, everyone is speculating as long as the facts remain secret). But these concerns don't amount to a Constitutional crisis, at least not formally. The system is in place to handle mistakes by lower court judges. It may not be as good a system as I'd like, but it is the one Congress adopted.
1.19.2007 12:38pm
Just an Observer:
Somewhat closer to the topic, I found the attorney general's sworn admissions about the state of mind in the administration to be jarring. From the NYT story:

"There was a reason why we didn't do this as an initial matter shortly after the attacks of Sept. 11," said Mr. Gonzales, who was White House counsel.

Referring to the Foreign Intelligence Surveillance Act, or FISA, the law that created the secret court, he added, "The truth of the matter is we looked at FISA and we all concluded there's no way we can do what we have to do to protect this country under the strict reading of FISA."

So the adminstration proceeded to undertake warrantless wiretapping instead.

That quote by Gonzales indicates pretty clearly that today's claim that the 2001 AUMF, read together with FISA, enabled the wireless wiretaps was not the theory that drove the administration at the time. Rather, Bush proceeded under the more sweeping claim that he has constitutional authority to disregard the statute.

Since I have always found Bush's claims of executive power to be a far more threatening matter than the civil liberties issue, I hope the courts and Congress do keep probing that area. I am not confident that we will see any resolution.

Gonzales continues to spout the constitutional claim in public, but the administration is doing all it can to avoid settling the same claim in court.
1.19.2007 12:45pm
Visitor Again:
Take a deep breath and repeat after me: "Democrats control Congress now."

I'll take a deep breath if you take a dump that gets rid of the stuff that's clogging your brain. I'll be civil when you are.

What makes you think I have any confidence in the Democrats on intelligence oversight committees? They swallowed everything the Bush Administration did in the wake of 7/11 and it appears they suspend their critical faculties when it comes to national security and the great war on terrorism.
1.19.2007 1:47pm
Visitor Again:
the fact that the Administration is now abiding by the formal terms of the statute seems to me a defeat for it.

Mark, my friend, how do you know the Administration is now abiding by the formal terms of the state. That Gonzales implied it is doesn't mean it is.
1.19.2007 1:51pm
txjeansguy (mail):
JaO, Grubbs doesn't legitimize this move. Grubbs sets the ceiling, not the floor, of the power of the government to spy on us before we commit crimes -- in that case the gov't fairly knew the crime would occur; the defendant had already, and independantly, ordered child porn delivered to his house. Grubbs has nothing to do with anticipating that a _class_ of people might do something; that case was about a specific person who would almost certainly commit a crime.

PDXLawyer, you're not missing anything. It seems they may be improperly using Grubbs to justify general warrants/writs of assistance, if the affidavits supporting these warrants need not specifically claim that _this person_ poses a terroristic threat. They're fishing. Again, what are the "classes" of people they're surveilling?
1.19.2007 2:32pm
Anderson (mail) (www):
"Anticipatory warrants" ... how Philip K. Dick we are now.

I am waiting for our originalist friends to channel Alexander Hamilton's or James Madison's thoughts on the subject.
1.19.2007 3:17pm
Mark Field (mail):

Mark, my friend, how do you know the Administration is now abiding by the formal terms of the state. That Gonzales implied it is doesn't mean it is.


To paraphrase Rick's response to Signor Ferrari, Gonzales' word is certainly not good enough. But in this case there appears to be a FISA court order. Assuming the Administration complies with the order, the formal terms of the statute have been satisfied.

As others have noted, that doesn't mean that the new order is legally correct or that it protects civil liberties in the way I think proper. Those questions are important, but they're separate and distinct from an outright refusal to abide by the law. It was the latter which created a real crisis. The former may, but we're not there yet.
1.19.2007 3:23pm
Just an Observer:
txjeansguy: Grubbs has nothing to do with anticipating that a _class_ of people might do something; that case was about a specific person who would almost certainly commit a crime.

If you read my comments here and on the previous thread, you will see that I have similar questions about "class." To me, the key is that even under the Grubbs model the target(s) -- in that case, physical premises -- still must be identified up-front, even though the ultimate triggering condition has not yet occurred.

So it matters, I think, what is meant by a "class." So long as there are targets -- such as a discrete list of phone numbers or email addresses -- identified up-front in the warrant, I think that element of the model is satisfied. There may well have been some common classifying, ranking or clustering methodology, such as as analysis of telecom traffic, that generates the list in the first place, if that methodology is deemed reasonable by the court.

Perhaps the the court would even allow algorithmic analysis of the content, short of reading or listening by a human, to refine the probability of success. That is theoretically feasible once the content is in text form. (Think of the robust ranking algorithms in Google and similar information-retrieval software, which present a probabilistic form of automated search.) Voice data presents harder technical problems, at least initially.

The ultimate triggering condition, I think, might entail human sampling of the content. That is where I suspect that the new minimization procedures "above and beyond" FISA's norm may allow the government to do some fishing without penalty for guessing wrong and listening to soccer moms. As I recall, but can't cite a source for, the NSA has always interpreted the point of interception to occur when a human reads or hears the content. (Judge Posner proposes that as a general threshhold for surveillance in society, which I find a little scary.)

Recall that the bar for probable cause in FISA, while non-trivial, is not so high as it is for criminal warrants. It is not necessary to establish probable cause that a crime is being committed, only probable cause that the targeted party is an agent or member of Al Qaeda or an associated organization.

All of this is, of course, speculative. Ultimately, it would come down to persuading a FISC judge that the warrants are reasonable.
1.19.2007 4:05pm
Just an Observer:
BTW, the last sentence of my last post should have ended "persuading a FISC judge that the criteria for the warrants are established."

"Reasonable" is a constitutional standard.

On a related point, I cannot see anything in what DOJ has said that rules out using the same type of new FISA warrants in purely domestic-to-domestic communications.

What was announced was that there now are FISA orders in place that cover roughly the same contours as the TSP, which happens to be defined to cover only communications with one party in the United States and another abroad. Nobody said there could be no other such orders covering local calls.

If the envelope of what the FISC court will allow in practice has been qualitatively expanded with these precedents, such as by applying the anticipatory model more agressively, I know of no good reason that the envelope could not be similarly expanded within the country.

Well, perhaps the fact that one communicant is abroad arguably adds something to probable cause that a foreign power or agent is involved, but that seems like a thin distinction in our globalized society.
1.19.2007 6:27pm
Tom Holsinger (mail):
JaO,

"Six degrees of separation" applies here. That one communicant of an identified group lies abroad is enough, given other factors, to justify a warrant for all electronic communications of that group could be a problem.

IMO the whole concept of FISA is inane due to the nature of this war alone, let alone it being technogically obsolete. The concepts of probable cause and warrants should be restricted to criminal law.

What I fear is the extension of secret surveillance of foreign nationals in this country, and of what is becoming a seamless web of domestic and national electronic communications, to blanket surveillance of American citizens. IMO it is time to revisit the 1978 policy objectives of FISA and consider new legislation. The almost insuperable problem with this is that most everything pertaining to national security has become vehicles for partisan grandstanding.

I am most definitely a hawk on this war, but I was around 1972-78 when Nixonian abuses came to light and FISA was enacted. I know what the objectives of the Democrats in Congress were concerning FISA because my father was the Administrative Assistant to a Congressmen on the House Intelligence Committee. And Pop's biggest regret in life was that he didn't make Nixon's Enemies List while his best friend, banker Ray Lapin as then-head of Ginnie Mae, did.

There is most definitely a potential for Nixonian abuses here, and I want effective oversight of domestic surveilliance by some group with at least a minimum of public responsibility. IMO FISA is so obsolete that the FISA court can't perform this function.
1.19.2007 7:15pm
Bill Sommerfeld (www):

Well, perhaps the fact that one communicant is abroad arguably adds something to probable cause that a foreign power or agent is involved, but that seems like a thin distinction in our globalized society.

A more substantial distinction is that "stuff" which is in the process of crossing an international border is generally subject to searches which would not be legitimate if performed on material which is not in the process of a border crossing.
1.19.2007 7:40pm
Visitor Again:
As long as we're on the subject of the hearing yesterday with Gonzales, anyone care to comment on his rather surprising suggestion that the constitution does not necessarily grant habeas corpus to everyone, only defines conditions underwhich it might be revoked from those undefined individuals that have it.

Just another part of the absolute power King George and his court say they have. Jack Balkin at Balkinization put it well:


What is most troubling about this view-- that habeas is not a right but a default rule rather easily dispensed with-- is that it undermines the very purpose of the Great Writ, both in the United States, and in Great Britain, where it originated: The possibility that the King could dispense with the rule of law and throw individuals in prison because he regarded them an enemy of the state is the very reason why we have a writ of habeas corpus. Substitute "George W. Bush" for "King" and you are rapidly approaching the Administration's desired position.
1.19.2007 8:08pm
Visitor Again:



Click here for "Gonzales' Trojan Horse: FISA-approved surveillance may not be a civil-liberties coup" on the Slate website. It has a perceptive analysis of Gonzales' letter--concluding it may be "a Trojan horse"--and a good description of what went on in yesterday's hearing. It raises the right questions.
1.19.2007 8:24pm
Just an Observer:
Bill Sommerfeld: A more substantial distinction is that "stuff" which is in the process of crossing an international border is generally subject to searches which would not be legitimate if performed on material which is not in the process of a border crossing.

I think you are describing the "border exception" to the Fourth Amendment's warrant requirement, which is not what is at issue here. No court is saying that no warrant is required, and the Fourth Amendment is not in play.

What matters is the statutory requirement for probable cause within FISA to support the court orders that have been issued.

The only way I can see the relevance of a foreign communicant in that context is that it adds a modicum of probability that a foreign power is involved. But foreign agents can also talk to each other within the country, and the huge majority of international calls don't involve foreign powers at all.

Ordinary FISA warrants are issued for domestic-to-domestic communications all the time. I don't see why this "innovative" new theory could not apply to such calls, and no one has said it can't.
1.19.2007 8:56pm
Bill Arnold (mail):
There may well have been some common classifying, ranking or clustering methodology, such as as analysis of telecom traffic, that generates the list in the first place, if that methodology is deemed reasonable by the court.

Perhaps the the court would even allow algorithmic analysis of the content, short of reading or listening by a human, to refine the probability of success.

I suspect that it would be hard to convince a judge that the output of such complicated algorithms equates to probable cause. My guess is similar, but that the algorithms are simple and human-understandable, perhaps decision trees that the judge has carefully walked through.
1.19.2007 11:03pm
Bill Arnold (mail):
In case it hasn't already been pointed out, the original language used by Gonzalaz (last year) was "involving someone we reasonably believe is associated with al Qaeda,".

This time it's "one of the communicants is a member or agent of Al Qaeda or an associated terrorist organization".

It may be that intercepts as described by the current language are mapped to the set described by the "anticipatory warrant", and intercepts in the set described by the earlier language but that do not qualify under the tighter definition are getting individual warrants.

I'd like to know what the current and agreed-upon definition of "agent" is.
1.19.2007 11:15pm
Just an Observer:
Bill Arnold; I'd like to know what the current and agreed-upon definition of "agent" is.

That is defined in the FISA statute. You correctly note that it is stricter than the fuzzy language that Gonzales had used to describe the parameters of the TSP. No one really knows what that meant. ("Associated?") The TSP standard is something the executive branch made up and never has to explain to a judge.

The more rigorous FISA definition distinguishes between foreigners and a "United States person" (a citizen or legal alien), who must "knowingly" do one or more enumerated bad things in order to qualify as an agent.

See 50 USC 1801(b)
1.20.2007 10:19am
Just an Observer:
Me: Perhaps the the court would even allow algorithmic analysis of the content, short of reading or listening by a human, to refine the probability of success.

Bill Arnold: I suspect that it would be hard to convince a judge that the output of such complicated algorithms equates to probable cause.

Hard, but not at all impossible. It would depend on the judge. Imagine a clone of Richard Posner sitting as a FISC judge. I'd bet on him being very open to such an argument. He has made essentially that argument himself in his writings.
1.20.2007 10:34am
Bill Arnold (mail):
See 50 USC 1801(b)
Thanks. Re "associated with", if I were a NSA engineer, it would be very tempting to read
1801(b)(2)(E)
any person who ... (E) knowingly aids or abets any person in the conduct of activities described in subparagraph (A), (B), or (C) or knowingly conspires with any person to engage in activities described in subparagraph (A), (B), or (C).

as a recursive definition, particularly with a creative reading of 1801(b)(2)(C) knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power;
1.20.2007 11:45am
Just an Observer:
The term that remains ambiguous, I think, is "member" of Al Qaeda.

FISA recognizes targeting either a "foreign power," which can include a terrorist organization as well as a state, or an "agent of a foreign power."

In the case of a state, it is straightforward to target, for example, a foreign embassy, at a well-known location. But Al Qaeda does not typically list "Al Qaeda Sleeper Cell 123" in the phone book. So what comprises a "member" of such an organization, and how is that established? That may offer opportunity for creative interpretation.
1.20.2007 1:23pm
Just an Observer:
Similarly, the phrase "al Qaeda or an associated terrorist organization" itself leaves some room for creative interpretation, since al Qaeda does not typically publish org charts.
1.20.2007 5:43pm