Obstructions in Halting NSA Surveillance

[CP readers should read, in the Dec. 18 issue, two fine articles on topic: Rob Hager, “A Victory for the Constitution,” and Binoy Kampmark, “Outlawing the Metadata Program.” Undoubtedly there will be more. My analysis is slightly different from both, not the decision itself, which they address, and which has received widespread attention in the press, but rather the preliminaries, obstructions thrown up to the adjudication of USG surveillance that Judge Leon in roughly the first-half of his 68 page opinion had to take into account, essentially a clearing-away process, before establishing clear ground for rendering his decision. Why is this important? First, for showing the institutional and governmental structure of repression, semi-hiding under the mantle of the law, to protect illegal and unconstitutional practices when these come forward in defense of militarism, intervention, and the social control of the populace–here specifically the last-named. Second, demonstrating these obstructions, as he does, shows what Judge Leon was up against (his point for doing so), which accounts for the narrow scope and limited application of his decision–a sweeping pronouncement, yet having, leaving aside questions of reversal by a higher court, pertinence only to the plaintiffs, the violation of their Fourth Amendment rights, and not extended to the nation as a whole. Thus, on to dissecting the wording of the opinion.]

I Eviscerating the Privacy Right

By way of introduction, Adam Liptack in the New York Times, Dec. 18, the article entitled, “After Ruling Critical of N.S.A., Uncertain Terrain for Appeal,” quotes Judge Leon, himself troubled by the prior boxing-in of a clear channel for rendering his opinion: “I’m not sure how I’m going to come out, but I know it’s going upstairs.” That he stayed his order to allow for the appeal process, itself, I believe, an unnecessary compromise, one of several, psychologically inviting reversal, indicates that, although one should honor the man and credit the significance of his determining that the massive surveillance of Americans’ phone calls is probably unconstitutional, he in fact did not lay down the gauntlet, did not, therefore, expose the political-legal gangsterism currently in vogue at the highest levels–POTUS, DOJ, Congress, the Supremes down to the District Courts and, of course, FISC. Judge Leon did not blink from ridiculing the defense of the government, that the plaintiffs had no standing (this “defies common sense,” given the widespread public knowledge, and USG’s admission, of massive surveillance) and that surveillance had in fact foiled terrorist plots (How? When? Where?, no evidence forthcoming), yet that criticism did not–and because of prior obstacles put in place, e.g., provisions of the Patriot Act, and much more, Congress itself always a step ahead in fostering repression, taking no chances, perhaps could not—catapult him to the higher ground of a definitive rendering, spread broadcast, decisively constitutionally-rooted, and having effect without delay.

The initial stumbling block, the heart of Liptack’s analysis, is the difference between concurring and controlling opinions, here a 2012 opinion by the Supreme Court, in which the latter represents the precedent Judge Leon’s decision “blew past,” and the former, no more than an anticipation of where, in support, “the justices might be heading.” Not a happy prospect, because, going back to Smith v. Maryland, in 1979, the Court held–Liptack writes–that “a robbery suspect could not expect that his right of privacy extended to the numbers dialed from his phone. The government says the Fourth Amendment analysis in the new cases should begin and end with that decision.” Cut-and-dried, no Fourth Amendment defense on the right of privacy–thank you, POTUS and AG Holder–when you voluntarily (by dialing!) give information to a third party, the telephone company. Ah, then in the 2012 decision, United States v. Jones, which “unanimously rejected the use of a GPS device to track the movements of a drug suspect over a month, we see what looks like support for the Leon decision, except that the majority held that “attaching the device violated the defendant’s property rights”–but no mention was made of his privacy rights.

Here we see a pair of concurrences, in which “five justices said the tracking raised concerns about the defendant’s expectation of privacy.” (Italics, mine–because it appears that in legal and constitutional interpretation, expectation plays an important role.) Bless her, Justice Sotomayor wrote, citing the Smith case: “to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.” Justice Kennedy, who announced for the Court in 1989 a principle affecting the concurring-controlling distinction, and hence, the order of priorities, now is invoked as though the Court metaphorically mounting its judicial horse to slay the privacy dragon, proclaims, in his words: “If a precedent of this court has direct application in a case, yet appears to rest on reasons rejected in some other lines of decisions, [lower court judges] should follow the case which directly controls, leaving to this court the prerogative of overruling its own decisions.” (Italics, mine) Does it work? Liptack cites a case last month in California, in which a federal judge, Jeffrey T. Miller, would not “grant a new trial to a defendant convicted of terrorism charges based on asserted Fourth Amendment violations arising from the N.S.A. program.” Exactly what is at issue. Judge Miller stated that he would not “blaze a new path and adopt the approach to the concept of privacy set forth by Justice Sotomayer in her concurrence in United States v. Jones.” (Italics, mine) No wonder Judge Leon, clearly aware of the California case, could say, “I’m not sure how I’m going to come out, but I know it’s going upstairs.”

Perhaps I’ve been too hard on him. As Liptack points out, Judge Leon strongly criticized the Foreign Intelligence Surveillance Court (FISC), a secret court, in which the 15 judges who supervise the program of surveillance “have issued 35 orders authorizing it,” despite the fact that that the government “repeatedly made misrepresentations and inaccurate statements about the program,” deeply angering the judge. Liptack, in conclusion, quotes NYU law professor Barry Friedman, a specialist on the Fourth Amendment, to the effect that “only Judge Leon’s work was worthy of a federal judge.” In Friedman’s words, “Judge Leon’s reads as though there is a living, breathing, thinking person behind it. Right or wrong ultimately, it is full of detail, real-world fact and serious consideration. The FISA court opinions are lifeless. They read like a machine wrote them.” Lifeless? That’s too kind; politicized, kept jurists, the fact of deliberating in secret and, as we shall see, legitimating ex parte proceedings in which there is no party challenging the government, as well as keeping their decisions secret, should merit for them only scorn, ridicule, contempt, and the same for those who have empowered them under such conditions, the Chief Justice who makes the appointments, and the usual characters (suspects?), POTUS on down, who, burnishing the credentials of the Inquisition, add Joseph R. McCarthy for father-confessor and inspiring spirit, have reduced civil liberties in America to a sick joke.

II Klayman et al, v. Obama, et al., United States District Court For The District of Columbia, Dec. 16, 2013 [Dkt. # 13 (No. 13-0851), # 10 (No. 13-0881)]

This Memorandum Opinion, befitting its importance, is heavily annotated, footnoted, a citational cornucopia which raises the danger of losing sight of the argument (my apologies, in advance, to CP readers and contributors who may possess legal training, were I not to put a fine point on procedural matters), my emphasis now, shared, I believe, by Judge Leon, being the impedimenta preventing clear-sighted logical and constitutional reasoning. To begin: “On June 6 [i.e., six months ago, which speaks to the carefulness in Judge Leon’s bringing forward the proceedings], 2013, plaintiffs brought the first of two related lawsuits challenging the constitutionality and statutory authorization of certain intelligence-gathering practices by the United States government relating to the wholesale collection of the phone record metadata of all U.S. citizens.” I like the formulation: acknowledgment of the program and its dimensions, and challenges both on constitutional and statutory grounds.

It continues: “These related cases are two of several lawsuits [e.g., the ACLU v. Clapper, filed five days later, Southern District of New York, which, of course, also bears watching] arising from public revelations over the past six months [public revelations therefore giving the plaintiffs standing; also, recognition of Snowdon’s revelations, six months before] that the federal government through the National Security Agency (‘NSA’), and with the participation of certain telecommunications and internet companies, has conducted surveillance and intelligence-gathering programs that collect certain data about the telephone and internet activity of American citizens within the United States.” (Italics, mine) Already, we see Judge Leon imposing restrictions, for momentarily he will rule out internet companies and internet activity, reduce the number of plaintiffs to two, confine the suits to the government (and draw distinctions here), ruling out that affecting private defendants (telecommunication and internet firms and their executives), and while giving the plaintiffs standing to bring suit, denying their attempt to bring the suits “as class actions on behalf of themselves and ‘all other similarly situated consumers, users, and U.S. consumers and users of,’”–in addition to ignoring (perhaps correctly given the terms of the suits) foreign eavesdropping.

Still, much to work with, if the manner and mode of surveillance can be ruled in violation of the Fourth Amendment. Yet, plaintiffs seem overly restrictive, calling only for preliminary injunctions seeking relief for themselves, which permits Judge Leon to confine this relief to the federal government alone, and only with regard to its “bulk collection and querying of phone record metadata–the latter again, presumably, applying to themselves. Long explanations for the resulting narrowing, as in why “the Court need not address” internet data surveillance activity (“plaintiffs intermingle claims regarding the surveillance of phone and internet data,” and then ask relief only concerning the latter), seem unworthy of the occasion. Again, too harsh? For Judge Leon appears willing and able to differentiate between the statutory and constitutional dimensions of the plaintiffs’ suit, opting to bear down on the latter and more consequential of the two, finding himself hamstrung, however, on the former (“the Court finds that it lacks jurisdiction to hear plaintiffs’ Administrative Procedure Act (‘APA’) claim that the Government has exceeded its statutory authority” under FISA, the Foreign Intelligence Surveillance Act. This is our first notice, with APA, of the judicial-governmental process operating in, and behaving like, a closed system.

He then explicitly confines his preliminary injunction to the two plaintiffs “only,” and states that “in view of the significant national security interests at stake in this case and the novelty of the constitutional issues, I will STAY [in the original] my order pending appeal.” Rather than seek cover, Judge Leon gives us an instructive historical lesson, under “Background,” detailing the initial Snowden revelations drawn from the articles of Glenn Greenwald in The Guardian–a courageous act in the current judicial climate, and made relevant to the opinion (as though perhaps chafing at the bit). The very firms omitted from the scope of the decision are, along with their ready cooperation with the government, blazoned across the page. The phrase which seems to stick in his mind and recur often is, “telephony metadata,” and he turns from there to the government’s admission, because of the disclosures, of the program’s existence, including that (quoting from the Office of the Dir. Of Nat’l Intelligence) “the FBI obtains orders from the FISC pursuant to Section 215 [of the USA Patriot Act] directing certain telecommunications service providers to produce to the NSA on a daily basis electronic copies of ‘call detail records.’” By rights, that should be the ballgame, even an obtuse and protective Supreme Court coming on board.

But the more admissions, the more legislative and judicial legerdemain. Section 215 of the Patriot Act is a story in itself, to which Judge Leon subsequently devotes attention, and he shows interest as well in the bearing that the APA and FISA have fending off critical scrutiny of surveillance, and by implication, the whole counterterrorism shtick (I make fun of what is really a serious business, counterrevolution, from paramilitary operations and regime change to drone assassinations–regrettably miles apart from the judicial focus on the constitutional determination of massive surveillance, and the health of the Fouth Amendment). Plaintiffs filed the day after the first public revelations of massive surveillance, and, as part of the record, Judge Leon identifies Larry Klayman and Charles Strange, irrelevant for present, one a maverick conservative, the other, father of “a cryptologist technician for the NSA and support personnel for Navy SEAL Team VI who was killed in Afghanistan”–rather difficult to dismiss as pinko-terrorists. This is followed by the analytical crunching down, “Statutory Background, FISA and Section 215 of the USA Patriot Act, the former, ironically, passed in 1978, in response to abuses of “warrantless domestic intelligence-gathering that infringed the Fourth Amendment rights of American citizens,” as brought out by the Church Committee. Fortunately, Frank Church is not alive to see the results of his handiwork.

Yet even the best laid plans of mice and men…. For FISA did the unpardonable at and from the outset, which Judge Leon, by bringing out, obviously recognizes: It “created a procedure for the Government to obtain ex parte judicial orders authorizing domestic electronic surveillance upon a showing that, inter alia, the target of the surveillance was a foreign power or an agent of a foreign power.” Whether the more menacing phrase is ex parte or inter alia is open to debate, the first denying the adversarial process in which only one side appears before the court, government, already addressing hand-picked suppliants at the heavenly gates of patriotism, or the second, the among other things ballooning into secret courts, secret decisions, secret spying on all and sundry. Both become fully operable, especially after 2000, with Bush, and, if possible, intensified by Obama. And with the creation of FISA came FISC, the Foreign Intelligence Surveillance Court, eleven district judges having “jurisdiction to hear applications for and grant orders approving” surveillance, and FISC Court of Review, with three district or court of appeals judges, having “jurisdiction to review the denial of any application made under [FISA].” And with that, USG can’t miss–and hasn’t.

The screws only tighten further. Still with FISA: “In addition to authorizing wiretaps [keep in mind, this is part of Judge Leon’s Memorandum Opinion], FISA was subsequently amended to add provisions enabling the Government to obtain ex parte orders authorizing physical searches, as well as pen registers and trap-and-trace devices.” And why stop there? “In 1998, Congress added a ‘business records’ provision to FISA.” (Already, counterterrorism precedes terrorism.) The Judge continues: “Under the provision, the FBI was permitted to apply for an ex parte order authorizing specified entities, such as common carriers, to release to the FBI copies of business records upon a showing in the FBI’s application that ‘there are specific articulable [a word appearing frequently in these ex parte requests and proceedings] facts giving reason to believe that the person to whom the records pertain is a foreign power or an agent of a foreign power.” When “foreign” gives way, in application and/or insinuation, to “domestic,” then we are hitting our stride. Parenthetically, the phrase “business records” becomes the entering wedge for widening the mechanics and scope of surveillance, by bringing telecommunication and internet firms on their knees to the government in obedience to orders for disclosure, cooperation, and most intriguing, silence.

We come then to the Patriot Act, which Congress passed after 9/11, and “which made changes to FISA and several other laws.” Specifically, “Section 215 of the PATRIOT ACT replaced FISA’s business-records provision with a more expansive ‘tangible things’ provision.” For, Judge Leon goes on, “it authorizes the FBI to apply ‘for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.” Even the FBI’s application was made easier, from showing that the records were sought for an investigation, to, instead, the tangible things being merely relevant to such an investigation. We next enter the murky ways of the procedural jungle with Section 1861 [almost as famous as Sect. 215] “impos[ing] other requirements on the FBI when seeking to use this authority,” to wit, following the Attorney General’s guidelines applying to, quaintly termed, “minimization procedures” pertinent to “an order for the production of tangible things, most of all, the prohibition against dissemination and a correlative silence. If the FBI’s application satisfies meets the FISC judge in meeting the requirements, he “shall enter an ex parte order as requested,” called (savor the term) a “production order,” which means approval for “the release of tangible things.” The clincher: “Meanwhile, recipients of Section 1861 production orders are obligated not to disclose the existence of the orders, with limited exceptions.”

Anyone for tennis? No, this is a serious business. Hence, “Consistent with other confidentiality provisions of FISA, Section 1861 provides that ‘[all] petitions under this subsection shall be filed under seal,’ and the ‘record of proceedings…shall be maintained under security measures established by the Chief Justice of the united States, in consultation with the Attorney General and the Director of National Intelligence.” All three, estimable gentlemen, whose collective motto might as well be, “loose lips sink ships” of World War II vintage–a refrain unfamiliar to Edward Snowden, who has blown the lid on production orders and related practices. The practices, which Judge Leon in a separate heading puts in boldface, include “Collection of Bulk Telephony Metadata Pursuant to Section 1861,” his particular bête noir. When he states, “To say the least, plaintiffs and the Government have portrayed the scope of the Government’s surveillance activities very differently,” this poses no problem “for purposes of resolving these preliminary injunctions,” because the government has already conceded “the phone metadata collection and querying program.”

Here we see important connections being made between the program, its rationale, and the production orders: “In broad overview, the Government has developed a ‘counterterrorism’ program under Section 1861 in which it collect[s], compiles, retains, and analyzes certain telephone records, which it characterizes as ‘business records’ created by certain telecommunications companies”–the metadata. (Judge Leon seems to accept–despite his use of the word “analyzes”–the government’s word that its collection does “not include any information about the content” of the calls. A dangerous assumption because reducing surveillance to mere formalities–bad as that is.) This “Bulk Telephony Metadata Program” has gone on for over seven years, the FBI having, since May 2006,“obtained production orders from the FISC under Section 1861 directing certain telecommunications companies to produce, on an ongoing daily basis, these telephony metadata records, which the companies create and maintain as part of their business of providing telecommunications services to customers.” From there, NSA “consolidates the metadata records” provided by the companies “into one database,” and its “intelligence analysts, without seeking the approval of a judicial officer [italics in original, which, unless my own, I do not point out, but here, for Judge Leon, the importance of the words is manifest], may access the records,” using “identifiers”–called “seeds”—to query the data base, the seeds being approved by NSA’s Homeland Security Analysis Center, a, to me, thoroughly sweetheart arrangement.

To keep matters kosher, the identifiers must meet the RAS standard (“reasonable, articulable suspicion”), which introduces “minimization procedures” stipulating “that query results are limited to records of communications within three ‘hops’ from the seed.” Even the Judge loses his cool, the “hops,” as he illustrates, potentially embracing thousands of parties: first hop, identifiers and their associated metadata over a five-year period, say 100; the second hop, the identifiers and associated metadata now having direct contact with the first set (100 times 100); the third, same circumstances, now having direct contact with the second, therefore “includ[ing] all the phone numbers that each of those 10,000 numbers has called or received calls from in the last five years (say, 100 numbers for each one of the 10,000 ‘second hop’ numbers, or 1,000,000 total).” RAS appears to be stretched to the limits of belief. In a footnote, he plaintively adds: “But it’s also easy to imagine the spiderweb-like reach of the three-hop search growing exponentially and capturing even higher numbers of phone numbers”–this said in response to the government’s constant minimizing of the identifiers and resulting spread. And he brings the extended footnote to a close (revealing that even RAS is thrown out the window): “But, of course, that [efforts to “defeat high volume and other unwanted metadata”] does not change the baseline fact that, by the terms of the FISC’s orders, the NSA is permitted to run queries capturing up to three hops that can conceivably capture millions of Americans’ phone records. Further, these queries using non-RAS-approved selection terms, which are permitted to make the database ‘usable for intelligence analysis,’ may very well themselves involve searching across millions of records.”

One would think that USG would be satisfied, to all intents a dummy FISA Court, an open sesame to indulge in surveillance, legislation designed as enablers to that unfortunate enterprise, and yet, there is a clear trail of noncompliance and outright lying, even to the Court that trusts it, comforts it, pats it on the head. Judge Leon: “Once a query is conducted and it returns a universe of responsive records (i.e., a universe limited to records of communications within three hops from the seed [to go beyond three would probably involve monitoring the communications of Martians, so generous is this mandate]), trained NSA analysts may then perform new searches and otherwise perform intelligence analysis within that universe of data without using RAS-approved search terms.” I am tempted to say that only the blind could fail to find content, pace USG, in these searches, searches which employ not only analysis but also following the “chains of communication,” which themselves “cross different communications networks” because the metadata is aggregated. Since May 2006, “the FISC has repeatedly approved applications under Section 1861,” in which, as part of “the program,” orders are issued “directing telecommunications service providers to produce records in connection with the Bulk Telephony Metadata Program.” Under these orders, in addition to seeking periodical renewal (the record shows this to be a mere formality), government also “acknowledged, as it must, that failures to comply with the minimization procedures set forth in the order have occurred.” Which they most certainly have; example: “in January 2009, the Government reported to the FISC that the NSA had improperly used an ‘alert list’ of identifiers to search the bulk telephony metadata, which was composed of identifiers that had not been approved under the RAS standard.”

As far as one can tell, the usual slap on the wrist, if that at all. Only one member of the FISC, Judge Reggie Wilson, stepped forward on such matters, stating that “the NSA had engaged in ‘systematic noncompliance’” with procedures since the inception of the program, “and had also repeatedly made misrepresentations and inaccurate statements about the program to the FISC judges. Concluding that “he had no confidence [Judge Leon continues] that the Government was doing its utmost to comply with the court’s orders,” Judge Wilson “ordered the NSA to seek FISC approval on a case-by-case basis before conducting any further queries of the bulk telephony metadata collected pursuant to Section 1861 orders.” The approval procedure lasted all of only six months. Afterwards, “the Government apparently has had further compliance problems relating to its collection programs in subsequent years.” He quotes the complaint of Judge John Bates, in October 2011, here government misrepresentation of “the scope of its targeting of certain internet communications” under a different collection program, and thereby references the Wilson complaint about “the NSA’s use of unauthorized identifiers” in the Bulk Program. Judge Bates: “[T]he Court is troubled that the government’s revelations regarding NSA’s acquisition of Internet transactions mark the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program.” As Judge Leon notes, Judges Walton and Bates’s “opinions were only recently declassified by the Government in response to the Congressional and public reactions to the Snowden leaks.” (Reactions, I might add, as in Congressional concerns voiced about massive data collection over the last several days, Dec. 16-18, at this time of writing, hardly fundamental and emphatically too late.)

I submit, the picture is clear, without the need to delve further into Judge Leon’s Memorandum Opinion (he takes up next the statutory claims under the APA and the reasons for precluding judicial review of agency’s actions, part of the tightening noose placed around attempts at rectification of an increasingly repressive system), so that what emerges is a tableau of political gangsterism etched in marble across the government buildings in Washington, no branch exempted, and radiating out through the country, from federal district courts to FBI field offices, and a compliant host of service providers covering the whole gamut of communications, rendered more potent through constant technological advancement, the more readily penetrable into the consciousness, understanding, and articulation of the American people. Here, to resurrect the adversarial process deemed too dangerous by the structure of power and its multiform sources of influence, I should like to give Edward Snowden the final word. His revelations, after all, got Americans to begin thinking, necessitating the government’s time away from its usual task of normalizing its and the society’s servitude to ruling groups and their structure of power, to directing more careful attention to damage control, in this case, the anticipation a radical sensibility might arise from the ideological barbarism sanctioning Wall Street–and the matching conditions of a deterioration of living standards, widening class differences of income, wealth, and power, and, still part of damage control on a larger scale (perpetuating capitalism), promoting war, intervention, and the further pursuit of global hegemony.

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