(from The National Review, May 18, 2011)
With three important anti-terrorism tools set to expire, conservatives shouldn’t allow themselves to be misled by inconsistent constitutionalists over what our nation’s fundamental law requires.
Put differently, why should politicians who voted for constitutional monstrosities like Obamacare have any particular credibility when it comes to national security? And yet each time portions of the PATRIOT Act or related legislation comes up for reauthorization, we’re treated to long-winded harangues, heavy on paranoia but light on case citations, by opponents suddenly interested in checking federal power. Short on specifics and specific abuses, they claim the provisions requiring reauthorization violate the civil liberties guaranteed by the Constitution.
At issue are the protections of the Fourth Amendment, which protects against “unreasonable searches and seizures” and sets out requirements for search warrants — “probable cause” and describing with particularity the subject of the warrant. There is a potential tension between the Fourth Amendment, as it has been applied by the courts, and the president’s obligation to protect the nation from national-security threats. The courts and Congress have resolved this tension, however, by harmonizing the two in light of the Framer’s intentions and historical practice and allowing the executive to act aggressively, while still being subject to oversight, where foreign powers threaten the nation’s safety.
The three anti-terror tools up for reauthorization follow that model and even provide for greater protections than the Constitution requires. Two are standard tools of the trade in criminal investigations — “roving” wiretaps and “business records” orders — and the third corrects a small loophole in existing terror surveillance authority.
“Roving” wiretaps are nothing remarkable or unprecedented. Since 1986, courts have issued “Title III” warrants in criminal investigations, allowing this type of surveillance to collect evidence on players in organized crime and other targets of criminal investigations who have learned that a regular wiretap can be evaded by use of modern technology –switching between prepaid cell-phones and various Internet channels for communications. These warrants have been repeatedly upheld by the courts as lawful.
The major difference in the anti-terror context is that the application, which is submitted to the FISA Court made up of federal judges, need not specify by name the target, but can, instead, use other details to identify the particular person subject to surveillance — for example, an Internet handle used on particular web forums. Even after the court has approved the application, its oversight continues. The government must inform the court of each device or facility that it taps and specify the “facts justifying a belief that the target is using, or is about to use, that new facility or place.” Those who imagine that roving wiretaps authorize unbounded surveillance dragnets, without any supervision at all, are simply misinformed.
Business-records orders are also nothing new or objectionable. In general, the same materials can be obtained with garden-variety grand jury subpoenas issued by the clerk of court, rather than a judge. Indeed, the government routinely relies on grand jury subpoenas to collect information in terror cases for the reason that they are faster and more convenient than obtaining business-records orders, which requires demonstrating to a federal court “reasonable grounds” that the records sought are relevant to an investigation “to protect against international terrorism or clandestine intelligence activities.”
Business-records orders are also subject to additional restrictions. They are simply unavailable in intelligence investigations targeting a U.S. person where the basis for investigation is “activities protected by the first amendment.” Any information collected that concerns U.S. persons is subject to a “minimization” requirement that the government limit its retention and dissemination. And requests for orders seeking sensitive information, like medical records and library records, must be made by high-ranking intelligence officials, ensuring that such requests are made only when absolutely necessary.
The reason that terror investigators use business-records orders at all, despite the procedural hoops, is that they prohibit disclosure of the order by its recipient. The recipient can, however, challenge the non-disclosure requirement, as well as the order itself, in court. The benefit of secrecy in the context of years-long investigations to uncover and disrupt terror plots is plain, and the government has not used this power indiscriminately — it carries out about 40 such orders per year, on average.
And such secrecy is hardly unusual, in any case. Individuals subject to grand jury subpoenas may never become aware that records pertaining to them were pulled. As Patrick Rowan, a former federal prosecutor, explained in testimony before a House committee last month, it would not be unusual to seek bank records relating to the girlfriend of a target of a federal bribery investigation. If there were ultimately no indictment, or if the charges brought were not connected to her, she would never know that her records had been subpoenaed. This routine use of subpoenas, of course, clearly passes Fourth Amendment muster, under what’s known as the “third-party doctrine.” So do business-records orders.
The final expiring tool is the “lone wolf” definition, which recognizes that, in the Internet age, the government may be unable to demonstrate at the outset of a terror investigation that its target is directly affiliated with a foreign power, such as al-Qaeda. Terror groups increasingly use the “franchise” model, in which autonomous groups and individuals located in different areas operate independently, with minimal coordination and, in some cases, no hard knowledge of their foreign counterparts. These individuals may be recruited to the cause by online propaganda, inspired to carry out terror attacks based on what they read on message boards and news sites, and learn the techniques of terrorism by Googling for technical materials. Unlike in the past, an individual can be part of an international terror movement with only the vaguest connection to any specific terrorist group.
That is the basis for the lone-wolf definition. It simply allows the government to apply the Foreign Intelligence Surveillance Act, the primary tool for conducting anti-terror information-gathering in the U.S., to a non–U.S. person who “engages in international terrorism or activities in preparation” for such terrorism, but without proving a link to a specific foreign power. As with all FISA orders, any lone wolf investigation is subject to approval by the FISA Court.
Critics say this exception to FISA’s “foreign power” requirement intrudes on the Fourth Amendment’s exclusive domain, but they overlook or downplay the tie that it requires to “international terrorism,” which is specifically limited in the statute to activities that “occur totally outside the United States, or transcend national boundaries.” If that requirement is taken seriously — and if it is not, any debate on the point is meaningless –use of the lone-wolf power runs afoul of no constitutional limitation.
This is demonstrated, in a tangible sense, by the fact that the government has to this point never been forced to rely on the lone-wolf provision, instead making use of ordinary criminal-law procedures that are beyond any constitutional doubt. But it is easy to imagine circumstances in which the ordinary procedures would be insufficient or would cause delays in investigation.
Though the legal claims of the opponents of these tools are overblown, it is still a good thing that conservative legislators take their concerns seriously. Members of Congress have an obligation to uphold the Constitution, which means understanding and working through potential problems in legislation. In this instance, such careful scrutiny reveals a careful and thoughtful approach to providing appropriate tools for fighting terrorism while protecting the rights guaranteed by the Constitution. Unconstitutional overreaching by the federal government is a distressingly regular occurrence, but reauthorization of these tools is both legitimate and constitutional.
— David B. Rivkin and Andrew M. Grossman are attorneys with the firm of Baker Hostetler LLP in Washington, D.C. Mr. Rivkin served in the Department of Justice during the Ronald Reagan and George H.W. Bush administrations.