Wednesday, May 17, 2006

The Hayden Nomination: Should Government Officials Who Break the Law Be Promoted?

General Michael Hayden’s CIA nomination poses a serious question for the U.S. Senate: Should government officials who break the law be promoted or punished?

As former director of the National Security Agency (NSA), Hayden developed President Bush’s illegal program of warrantless domestic spying. He was the Program’s “principal architect,” according to The New York Times. At the NSA, Hayden failed to follow federal law and the Constitution. He demonstrated a stunning lack of judgment in administering a program he must have known was illegal—and ineffective—under pressure from the Executive Branch. This record makes him unfit to lead the CIA. By rejecting his nomination, the Senate can protect the rule of law and show zero tolerance for government officials who break the law.

We make this case in detail in a letter the Center submitted to the Senate Intelligence Committee yesterday, drawing on public information about illegal domestic spying from news accounts and several court cases. The entire letter is available here at the Center for Constitutional Rights website, but I wanted to share a few highlights below:

Hayden had to have known that the NSA Domestic Spying Program was illegal under FISA

As a career intelligence professional and former director of the NSA, Hayden understood every detail of federal law on surveillance, including the Foreign Intelligence Surveillance Act (FISA), which was passed in direct response to the post-Watergate Church Committee’s “revelations that warrantless electronic surveillance in the name of national security ha[d] been seriously abused.” Most of these abuses involved warrantless wiretapping, directed by the President without any judicial oversight to stop him from singling out his political opponents. To ensure these abuses would not be repeated by presidents after Nixon, Congress expressly provided that FISA and the domestic wiretap act (usually called “Title III”) are “the exclusive means by which electronic surveillance … may be conducted.” To underscore the point, Congress made it a felony to conduct electronic surveillance without statutory authorization.

There's just no question that Hayden must have known that intercepting electronic communications and collecting calling records without seeking court approval was illegal. The legal analysis is not a close call.

Hayden also should have known that the warrantless wiretapping of communications involving American citizens is unconstitutional under the First and Fourth Amendments

General Hayden was also intimately acquainted with the constitutional limits on wiretapping when he repeatedly violated them as head of the NSA.

There’s been a lot of comment in the Blogosphere about whether Hayden understands the Fourth Amendment. Let’s start with what it says:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

I added the italics to show that the Fourth Amendment really has two halves. The first half says that the people have a right to be free from unreasonable searches. Pretty straightforward. The second half (in italics) says that before a court can give executive law enforcement officers a warrant (permission to carry out a search), the officers have to show the court enough evidence to demonstrate “probable cause”—meaning, good reason to suspect that criminal activity has taken place.

Now, one could read those two sections separately, so that the requirement to show “probable cause” only applies if the cops want a warrant and the partial immunity from liability it conveys. On this reading, however, the cops have another option: they can choose to carry out searches without going to a judge beforehand, and if challenged after the fact can defend their decision to search as being “reasonable” based on what they knew before the search. There are some very smart law professors out there—Akhil Amar today, the late Telford Taylor years ago—who think the world might work better if courts read the Amendment this way. (Although both Amar and Taylor are thought of as liberals, this is a classic example of a textual “strict constructionist” reading.)

But the Supreme Court has for over a century collapsed the two halves of the Fourth Amendment into one, by holding that, with very limited exceptions, all warrantless searches are unreasonable. And most people who think about these issues for a living believe that the Supreme Court’s interpretation makes sense. (Among other things, if we tested the reasonableness of searches only after they were over, it would be very hard to reliably separate what the cops knew before the search from what they learned during the search.)

Now, let’s get back to General Hayden. In January, Hayden insisted “if there’s any amendment to the Constitution that employees of the National Security Agency are familiar with, it’s the Fourth.” However, when reporters asked him if wiretaps always required “probable cause,” he said “No, actually—the Fourth Amendment actually protects all of us against unreasonable search and seizure. That’s what it says.”

People have taken this to mean he’s a dummy (like his boss). He’s not; he’s actually being sneaky-smart. That is what the Amendment “says”—if you ignore the inconvenient fact that the Supreme Court has read it differently for a hundred years or so.

Whether this “reasonableness” standard was the original rationale for the NSA Program (torture memo coauthor John Yoo apparently wrote a wiretapping memo around the same time) or an after-the-fact justification, Hayden implemented a program in which NSA shift supervisors employ their own standards of “reasonableness” to make decisions about who to target for surveillance.

Even if the NSA’s domestic spying activities were actually approved by Congress, the NSA Program would still fail to comply with the Fourth Amendment as the Supreme Court has always read it. Interception of calls involving Americans on American soil requires a court order and a demonstration of probable cause.

Hayden should have understood that the President was violating the separation of powers when he authorized the Program

Congress was well within its constitutional authority when it passed FISA almost thirty years ago. The Executive Branch’s attempt to bypass this congressionally-approved statute and thereby avoid ever going to judges before instituting wiretaps undermines the separation of powers—the most fundamental organizing principle of our representative democracy.

As the highest-ranking intelligence officer in the armed forces, General Hayden should have been well aware of the illegality of the NSA’s domestic surveillance activities. Several other governmental officials had already suspected as much and spoken out accordingly.

David S. Kris, a former top official in the Justice Department, wrote in an e-mail that the DOJ’s defenses of the Program “had a slightly after-the-fact quality or feeling to them.” (See last page of link for the quote.) In January, the Times reported that another top DOJ official, James B. Comey, doubted the legality of the program and its lack of oversight, refusing to approve central aspects of it when he acted as Attorney General during John Ashcroft’s 2004 stint in the hospital. Bush’s aides Andrew Card and Alberto Gonzalez were forced to seek Ashcroft’s certification during an emergency bedside visit, where some officials say that Ashcroft echoed similar discomfort about key aspects of the program; “[i]t is unclear whether the White House ultimately persuaded Mr. Ashcroft to give his approval to the program after the meeting or moved ahead without it.” A number of senior government officials reported that in the earlier days of the domestic spying program, several NSA officials—obviously lower in ranking than General Hayden—sought to have no part in the activities, “apparently fearful of participating in an illegal operation.” Yet despite these concerns from senior officials and subordinates surrounding General Hayden, he did not exercise similar judgment or restraint.

Instead, it appears that General Hayden’s CIA nomination is a reward for his failure to uphold the law in the face of Executive pressure. This is especially troubling for the head of a spy agency—which operates out of view of the press, the courts, and the voting public most of the time. If we are going to tolerate the existence of such arms of government, the people who run them had better be absolutely beyond reproach ethically. Given the many indications that NSA’s electronic surveillance program and massive domestic call database gravely intruded into the separate functions of the three branches, the Center believes his confirmation should be opposed.

Thanks for reading. If you’ve gotten this far, you might want to check out the full letter we sent.

May 18, 2006
The NSA litigation: the government uses the nuclear option

Last Friday, the government filed its first motion to dismiss one of the broad challenges to the NSA surveillance program, EFF’s lawsuit against AT&T. The government asked the court for permission to enter the case—EFF had sued only the private phone company AT&T—and, as expected, the government promptly resorted to the nuclear option, basing its argument for dismissal on the state secrets privilege, which I described in a posting three weeks ago.

It its most basic terms, invocation of the state secrets privilege involves the government submitting an affidavit from a department head saying that any court proceedings would end up spilling secrets that would threaten national security, and asking the court to dismiss the suit just based on those grounds. Typically, when faced with sensitive evidence, a court may close the courtroom, place briefs under seal, and make the other side's attorneys promise not to divulge the information, or even make them seek security clearance in rare cases. The state secrets privilege says that isn’t good enough for some secrets. For the most sensitive secrets, the case must be dismissed outright. Even the judge cannot be trusted to hear them. In fact, they are so sensitive that the judge can’t even evaluate the level of confidentiality required for himself; instead, he must rely on an executive affidavit. Or so the government’s argument goes.

For the administration’s flacks, this marks an analytical jump from “the program is absolutely legal” to “we can neither confirm nor deny anything about the program.”

Citing such legal classics as In re Under Seal—a great name for a state secrets case if ever there was one—the government has argued that a lawsuit against a private company alleging that that company violated federal law (racking up millions of dollars in liability to the plaintiffs in the process) must be dismissed without a moment’s further inquiry. This despite the fact that the plaintiffs already possess documents which they claim provide all the proof they need to win the case.

This wasn’t the only government attempt to cover its tracks filed last Friday. In another NSA Program challenge in Oregon, the government again resorted to an ex parte filing—that is, it submitted a brief for the judge’s eyes only, not to be seen (or responded to) by the other side’s lawyers. The case alleges that the NSA spied on domestic communications between a Muslim charity in Oregon and its lawyers in Washington, DC. This is a shocking claim: that not only is the NSA involved in warrantless domestic surveillance (something the administration has managed to deny until this weeks’ revelations concerning calling records), but it is not even confining itself by the usual constitutional rules prohibiting eavesdropping on privileged communications between attorneys and clients. The plaintiffs imply they have proof of all this in the form of a document accidentally released by the government in the course of earlier proceedings whereby the charity was designated as a terrorist organization by the Treasury Department. That document was filed under seal by the plaintiffs, and the government desperately wants to keep it hidden from public view.

Where was this secret brief filed? In some safe room in the federal courthouse? You’d think so, but it wasn’t filed with the court. Rather, the brief and its classified exhibits are “currently stored in a proper secure location by the Department of Justice and are available for review by the Court upon request.” The “by request” portion of that sentence is quite remarkable. Let me explain why by analogy: Even with the advent of electronic filing systems (where briefs and other papers are all filed on disk or via the web), courts have been reluctant to accept briefs containing internet hyperlinks, in part because they worry that if a judge (or his clerks) click on a link in a brief, that may tip off one of the parties to what the judge is looking at, working on, or thinking about, or may tip people outside the courthouse off to the fact that a decision is close at hand. The government’s insistence that the judge in the Oregon case ask permission to visit the secret brief in its secure home and read it is similar in some ways: it effectively allows the DOJ attorneys in Washington to follow the judge’s reading habits. As if he couldn’t be trusted to drop in on his own. Amazing.

The government has apparently threatened to invoke the state secrets privilege in that case if plaintiffs do not self-limit their discovery (pretrial document) requests. Thusfar it’s only a threat. But that’s basically how any privilege works—like insurance, it gives the person covered an extra incentive to misbehave. Why respond in good faith to legitimate discovery requests when you have the nuclear option and the other side doesn’t?

The government has managed to successfully assert the state secrets privilege in several cases recently. One of them involved Sibel Edmonds, a Turkish translator hired by the FBI who was appalled at what she saw inside the agency’s translation section and complained to her superiors. Like many whistleblowers before her, she was fired. She brought suit, and the government successfully argued (before a host of conservative trial and appeals judges—the latter barred her from the courtroom during the argument of the appeal) that the state secrets privilege was an absolute bar to her suit going forward. The Supreme Court declined to review the case.

What was it she was trying to tell her supervisors that got her fired? Among other things: that a translator sent to Guantánamo to translate Farsi detainee interviews didn’t speak that language, and that foreign diplomats suspected of spying in the U.S. were having their wiretaps translated by their own relatives who worked for the FBI. Rather than let those serious national security breaches see the light of day (and perhaps become subjects of an embarrassing outside investigation), the FBI fired her, and then successfully managed to deprive her of her vindication in court, courtesy of the state secrets privilege.

The Edmonds case reveals the rot at the heart of the government’s “war on terror”—that the legal shortcuts the administration has used, by removing oversight, ended up weakening law enforcement’s efforts against terrorism by diminishing accountability. (No surprise, then, that most of these shortcuts were dreamt up by ivory-tower right-wing academic lawyers such as John Yoo with no experience in law enforcement.) The same applies to the massive detention sweeps that have alienated immigrant communities—law enforcement’s most valuable ally, its eyes and ears on the street—from the federal authorities, and to the warrantless and most likely suspicionless surveillance carried out by the NSA—which the Times and Post exposed as being vast sinkholes of effort for the agents forced to follow the NSA’s dead leads.

Feel safer?

May 16, 2006