A FISA Gedankenexperiment

Wulf at Atlas Blogged proposes a thought experiment regarding the FISA warrantless surveillance program that has been the subject of much civil libertarian hand-wringing:

Suppose the CIA wants to eavesdrop on Vladimir Putin. They don’t need a warrant. They just listen in on his phone conversations and they are legally within bounds as far as US laws are concerned. Vladimir calls Kim Jong Ill, they listen in. Vladimir calls Osama bin Laden, they listen in. Everything is kosher so far. And then Vladimir calls me. The CIA does not have the legal authority to eavesdrop on my phone calls, but they do have the legal authority to eavesdrop on Putin’s. Can they legally listen to that phone call Putin has with me?

Wulf leads into his FISA hypothetical by positing an analogous situation where a criminal wire-tapping warrant has been issued against his co-blogger Rammage, and the resulting surveillance leads to the recording of a conversation between the two of them:

I call Rammage. He and I converse. The police have eavesdropped on me without a warrant to eavesdrop on me. But they don’t need one, because the only conversation they overheard was one that is covered by the warrant they have for Rammage’s conversations. It is not legally necessary to have a warrant for both parties of the conversation. I wouldn’t have a leg to stand on if I tried to take this to court and claim my rights had been violated. But if the police think I am a person whose conversations are interesting in a criminal sort of way, and they decide that they would like to eavesdrop on my conversations with other people, then they do have to get a warrant with my name on it. Not to listen to me talking to Rammage. But yes for listening to my calls otherwise.

The two situations are not perfectly analogous, of course, since in the criminal context an actual warrant has been issued, whereas in the Putin hypothetical (and that of FISA generally) there is none. But the operation of law works the same effect in both situations in that obtaining the warrant legally places the eavesdroppers in the same position vis-à-vis Rammage as the intelligence gathering agencies are vis-à-vis Putin; i.e. they are both on legal sound and defensible ground.

Wulf’s question is then, if the local law enforcement officers and the intelligence gathering agencies are in legally defensible positions regarding their targets, then are they on equal footing with respect to the people whom the targets ring up?

Doug Mataconis seems to think so:

The [Putin] hypothetical, though, is slightly different [from the Rammage hypothetical]. The CIA is eavesdropping on Putin’s conversation not as part of a law enforcement investigation, but as part of an intelligence gathering operation. During the course of that investigation, they discover that a foreign target (and Putin is only one example, let’s say it’s bin Laden, or Mahmoud Ahmadinejad, or the head of Chinese Intelligence) is communicating with someone in the United States. Should they be required to get a warrant to listen in on a conversation between someone in a foreign country and someone in the United States, especially when that conversation originated in a foreign country ?

From a legal point of view, it frankly depends on the purpose to which the information the government might obtain would be used. If it’s not going to be used in a criminal prosecution, then the fact that Fourth Amendment might have been violated isn’t going to matter. The primary effect of a Fourth Amendment violation is that any evidence obtained in violation of cannot be used in Court — the so-called Exclusionary Rule. If the evidence is never going to be used in Court, or if the domestic recipient of the phone call isn’t a target of the investigation, then the presence or lack of a warrant is, in some sense, irrelevant.

Furthermore, if all the CIA is doing is gathering intelligence, and perhaps acting on said intelligence outside the borders of the United States, then there’s a strong argument that the Fourth Amendment doesn’t even apply.

My thoughts from the start were that requiring intelligence gatherers to go to the FISA court each time a terrorist made a phone call to someone in the United States was a pointless and dangerous exercise, and a perverse reading of the law. While I am mindful of the dangers inherent in allowing the government to conduct too much activity in secret, I am also mindful of what happensTwin Towers 9/11 when we legally gird ourselves from knowing what our enemies are doing. Between the two, and considering application of the exclusionary rule (as pointed put by Doug) to any intelligence regarding domestic subjects, I have to say that I prefer monitoring our enemies to the fullest extent possible.

Moreover, we cannot have any control over who our enemies call, but by increasing the difficulty of monitoring them in certain places we will make that much more likely they will be found in such places. With respect to FISA, that place would be here in the US. Does it make any sense to encourage our enemies to operate within our borders? I sure don’t think so.

Wulf’s hypothetical, therefore, sets up the inexorable conclusion that the CIA et al. should be in the same position as local police officers are when a non-targeted subject is the recipient of a targeted subject’s phone call.

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