by John Yoo
Olson spoke without notes, almost in a tone of sadness. The FISC and the Justice Department had misread the Act, he said. FISA had not restricted what uses the President could make of intelligence information to protect the country--whether for arrest and prosecution, detention at the borders, or even military action. The Patriot Act had changed FISA's "purpose" standard precisely to correct this misreading.
The judges didn't let Olson play Daniel Webster before the Supreme Court. Judges Leavy and Guy asked if the FISC had the power to impose "minimization" procedures, case by case, to filter out information that had nothing to do with the purpose of the warrant--unrelated conversations with innocent third parties, for example. Olson conceded that it did, but maintained that the FISC had used this limited power to reinstate the Wall.
Silberman pressed Olson repeatedly on whether the Patriot Act's change of the "purpose" standard was constitutional: "Is it your view [that] the Government's motivation, in constitutional terms,...[in] seeking criminal prosecution is wholly irrelevant...?" Silberman continued. What if the only reason the government sought a FISA warrant against a terrorist was to throw him in jail, not because he posed any future threat? Wouldn't that violate the Fourth Amendment? Wasn't that why the Justice Department had built the Wall, observed it for many years, and never challenged it in court? Olson did not directly answer Silberman's hypothetical. Instead, Olson responded with an analogy to illustrate how the Wall hamstrung the executive branch in its fight against terrorism. Suppose a surgeon and an anesthesiologist could not communicate with each other except through a hospital administrator about a patient on an operating table, he said. "Instead of [an] exchange of information [among] people who are attempting to accomplish a result..., we have made it virtually impossible." Olson went on, "In order to connect the dots someone has got to have knowledge of those various different dots." He didn't claim that if the Wall had been torn down in time, the 9/11 attacks would have been stopped, "but we do know, I have no doubt..., if one [wanted] to make it difficult for us to detect and prevent another September 11th, [the Wall] is the way I'd go about doing it."
There was no way to tell from the judges' questions which way the court was leaning. We all prepared ourselves for a possible setback. But in just nine weeks, the appeals judges issued a thirty-page opinion agreeing that the Justice Department and the FISC had misinterpreted FISA by erecting the Wall. To stop the threat of terrorism, the court observed, "arresting and prosecuting terrorists, agents of, or spies for a foreign power may well be the best technique to prevent them from successfully continuing their terrorist or espionage activity."48 The court said that the FISC had no authority to prevent criminal investigators and intelligence agencies from discussing FISA surveillance, and that FISA had not sought to limit the use of foreign intelligence in criminal arrests and prosecutions of foreign spies. The court also found that the FISC had ignored Congress's plain intent in passing the Patriot Act to pull down the Wall, which they believed endangered the safety of the country. "A standard which punishes...cooperation," the judges wrote, "could well be thought dangerous to national security."49
This didn't mean we could use FISA with impunity: FISA specifically "excludes from the purpose of gaining foreign intelligence information a sole objective of criminal prosecution."50 Because the government usually doesn't know how it will use the information when it begins surveillance, the court observed, it was unlikely that FISA would be used to evade Fourth Amendment standards in ordinary criminal cases.
The judges also agreed that according to the Constitution a warrant was not required if the search was "reasonable" under the circumstances. The court distinguished between criminal prosecution that seeks to "punish the wrongdoer and to deter other persons in society from embarking on the same course,"51 and war or counterintelligence, which is "overwhelmingly to stop or frustrate the immediate criminal activity.... Punishment of the terrorist or espionage agent is really a secondary objective; indeed, punishment of a terrorist is often a moot point."52 September 11 was "out of the realm of ordinary crime control."53 Because this case "may well involve the most serious threat our country faces," the court found, FISA searches were reasonable. It also observed that other courts of appeals had "held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.... We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power."54
The Supreme Court refused to hear any appeal, and the FISA appeals court decision continues to govern the operation of FISA and the Patriot Act today. We learned about the opinion the minute the FISA appeals court released it. Much of it bore the personal writing style of Judge Silberman, which I knew well (he was unusual among federal appellate judges for writing the first draft of his own opinions, always in longhand on yellow legal pads). The time and effort that we had put into the case were vindicated, and Ted Olson's reputation as a convincing oral advocate was proven once again. But DOJ lawyers were not in a celebratory mood, as is often imagined when your side wins a case. The demands of the war on terrorism came before any celebrations. We read the opinion carefully so that DOJ could put the Patriot Act changes into effect as soon as possible. It was the most thorough opinion ever issued by a federal court on electronic surveillance in wartime, and lawyers throughout the government studied it for weeks to understand its implications.
The Patriot Act was one step in the evolution of law enforcement practices to address the new international terrorist threat. While critics obsessed on details like libraries, or delayed notification of targets, these were nothing new in the law. Even Democratic senators began to complain that the whining about the Patriot Act had gone overboard. In Judiciary Committee hearings in the summer of 2004, Senator Dianne Feinstein stated: "I have never had a single abuse of the Patriot Act reported to me. My staff e-mailed the ACLU and asked them for instances of actual abuse. They e-mailed back and said they had none." Senator Joe Biden said that "the tide of criticism" being directed against the Act "is both misinformed and overblown."
But it would also be a grave mistake to believe that the Patriot Act represents a great leap forward in our abilities to stop terrorist attacks. Military historians say that generals fight the last war. Politicians and government officials suffer from the same problem. After World War I, the French built a set of fixed defenses, the Maginot Line, to stop any future German invasion. The French generals, trapped in an obsolete paradigm of military strategy, expected World War I-style trench warfare, not the blitzkrieg that came. Today, like the French generals then, we are still working within the paradigms of the last war. FISA and the Patriot Act are our new Maginot Line. Our political leaders should consider new ways of addressing the threats posed by the new kind of enemy we now face.
Previous U.S. national security efforts were directed at nation-states, such as the Soviet Union and, before that, Germany, Italy, and Japan. These nations all fielded armed forces, defended territory, and protected civilian populations. They tried to expand their control over territory by military force or political coercion. But al Qaeda is different. Its attacks are the products of technologies, ideologies, and global dynamics entirely unknown twenty-five years ago. To prevent another attack, we must allow our intelligence agencies to "connect the dots," to gather more data, search more broadly, and pool information among more analysts and agencies. Preventing 9/11s depends on spotting, in advance, patterns and connections in communications, travel, and transfers of funds. Once it was safe to assume there was little need for any domestic surveillance because we no longer faced any serious communist threat; instead, such activities imperiled privacy rights.
Excessive worry about civil liberties prevent us from thinking more aggressively about electronic surveillance. The threat of an out-of-control executive seeking to harass its political enemies is not what looms before us. Legitimate political activities and speech by Amer
ican citizens are not being suppressed. There is no lack of lawyers to defend any sensitive cases involving Islamist ideologues who are American citizens or resident aliens and are only exercising their free speech rights, as opposed to conspiring with al Qaeda.
This is not to say that we should not have organizations like the ACLU that scrutinize government actions for abuses or excess. The ACLU keeps the government honest, and I have a great deal of respect for its president, Nadine Strossen, and its capable group of lawyers. But many civil libertarians are taking an absolutist position that opposes almost every counterterrorism measure. They believe that any wartime reduction of civil liberties creates a "ratchet" effect that will permanently diminish freedoms in peacetime. Others say that panic will lead government to go "too far." Scandals du jour do sometimes cause unwise legislation, and not just in the security context. But FISA and its interpretation went overboard in the other direction too. Others say that majorities will always abuse increased power to oppress minorities.
These are generalities that American history does not consistently bear out. It is true that civil liberties throughout our history have expanded in peacetime and contracted during emergencies. During the Civil War, the two world wars, and the Cold War, Congress and the President restricted civil liberties, and courts deferred; during peacetime, civil liberties expanded.55
But there is no evidence of any ratchet effect.56 History does not show that wars have reduced American civil liberties, either before or after the war. The Union reduced civil liberties during the Civil War, but it also liberated the slaves and expanded individual rights against the states afterward. FDR interned Japanese-Americans during World War II, but civil liberties surged in the decades after. Wars can lead to social and economic upheavals that expand individual freedom. Wartime governments may moderate discriminatory or exclusionary policies to rally the nation.
Some serious scholars argue that the government consistently over-reacts to crises by oppressing dissenters and infringing on individual rights.57 Historical precedents provide some support for this argument. During the 1798 Quasi-War with France, the Federalists made criticism of the government a crime. During the Civil War, President Lincoln suspended habeas corpus on his own authority and instituted military courts for the trial of civilians. In World War I, the Wilson administration prosecuted individuals for seditious speech. FDR ordered the internment of more than a hundred thousand loyal Japanese-American citizens. War no doubt expands executive power. But it does so for a reason: War must be won. Hate, opportunism, or greed toward minorities of enemy nations occur outside of wartime as well. Slavery and Jim Crow were the products of peace, not war.
History suggests that government is often ill-prepared for emergencies. Bold reaction to a foreign threat doesn't necessarily bring oppression, and it may generate courage and creativity instead. Commonsense changes in surveillance law earlier might have stopped al Qaeda before they murdered three thousand people. Instead, bureaucrats stuck to procedures like the Wall, which they knew were not working.58 It took the calamity of 9/11 to overcome bureaucratic inertia and fix problems that had been clear for years.
Is the Bush administration using public fear to consolidate political power? If it is, it has only another two years to go, and new security policies generally last only as long as the emergency. Lincoln's military courts and military justice did not last beyond the Civil War and Reconstruction. FDR's internments ended after World War II. The President and Congress usually give up their emergency powers voluntarily, and if they don't, courts step in. Despite a succession of wars and emergencies since the Civil War, civil liberties in our country have expanded steadily. Recurring wars and foreign threats have not produced a permanent national security state. In the United States, it is just as arguable that wartime policies have preserved the peace and our civil liberties.
Fighting a network like al Qaeda will require more information-gathering at home than in previous wars. Reducing the chances of a future 9/11 justifies some loss of privacy. Nothing like the infringements of civil liberties in past wars has occurred nor are they likely to under current law.
Critics have exaggerated the threat to civil liberties. This is not to say that there have not been nor should not be some constraints on the executive branch in this war. The government's powers have been expanded. Privacy has been reduced, though much more by the sheer march of communications technology than by the Patriot Act. The question is not whether some imaginary perfect world of civil liberties has been destroyed, because we do not live in that world. Have security policies gone further than necessary? The Patriot Act is a modest effort to adapt existing surveillance tools and strategies to an enemy whose unprecedented methods demand that intelligence be gathered on some civilian activity.
But we sorely need to continue to modernize our enforcement powers and make them more effective than they now are, if we are to prevent new terrorist attacks.
5
THE NSA AND WIRETAPPING
On Friday, December 16, 2005, the New York Times revealed to the world one of the government's most closely held secrets in the war on terrorism. It reported that the super-secret National Security Agency had intercepted telephone calls and e-mails traveling into and out of the United States, so long as one of the parties to the communication was suspected of being a member of al Qaeda. Surveillance took place without a FISA warrant. President Bush confirmed the existence of the program the next day.
The New York Times reporters identified me as the lawyer in the Justice Department who wrote a classified legal opinion on the NSA's surveillance program. Times reporters quoted from an internal memorandum I had allegedly written which said that the government could use "electronic surveillance techniques and equipment that are more powerful and sophisticated than those available to law enforcement agencies in order to intercept telephonic communications and observe the movements of persons but without obtaining warrants for such uses."1 They reported that I identified constitutional problems with the program, but wrote that after the 9/11 attacks "the government may be justified in taking measures which in less troubled conditions could be seen as infringements of individual liberties." The following week, the New York Times ran a front-page profile of me that claimed I had written a secret 2002 memorandum giving legal approval to the administration's once-secret terrorist-surveillance program.2
Justice Department officials have prohibited me from responding directly to the accounts in the New York Times and in other papers. They say that to discuss any aspect of the program or my involvement could reveal sensitive national security information that has not been publicly confirmed by the government. While this rule makes a great deal of sense, it has the perverse effect of giving leakers an advantage. Government leakers will reveal only selected information that places them or their interests in the best light possible. Even if the media publishes incorrect or misleading reports, those who follow the rules cannot respond because the government is concerned that any confirmation or denial would reveal secret information.
I met with Attorney General John Ashcroft at least once every few months, and sometimes every few weeks or every few days, to discuss classified matters related to the war on terrorism. Before 9/11, I had met Ashcroft only a few times--when I interviewed for my OLC job, when I had discussed an issue with him during the summer of 2001, and at various Justice Department functions. We were probably as different as two people could be. I was a law professor at the most famous liberal university in the country, the University of California at Berkeley. Ashcroft had made his political career attacking liberal holy grails such as abortion. I had spent most of my career working and arguing with professors. Ashcroft seemed wary of intellectuals. Before 9/11, Ashcroft led a prayer meeting in his office every morning. I had never gone. Ashcroft seemed most interested in public testimony, speeches, and the give-and-take of politics in Congress and in the cabinet. I tried to focus on the substantive foreign policy issues that I had studied for
years. He usually didn't get my jokes; I didn't laugh at many of his.
I would usually make an appointment with his confidential assistant whenever I needed to discuss a matter. I would walk by three layers of very nice and efficient secretaries, through a large, beautiful, wood-paneled room, used for ceremonies or large meetings, and a small waiting room. Ashcroft preferred meeting next door in a smaller, personal office equipped with several uncomfortable sofas and chairs arranged in a large circle. He liked to sit back in his office chair and, in his gravelly voice, swap jokes and stories with his long-time aides and associates. Ashcroft was an oral learner, and preferred to be briefed in person rather than read long memos. He was not shy about expressing his views, and one rarely left a meeting without knowing what he thought. While meeting with Ashcroft alone reflected the importance of the issues, it also placed me in a difficult position. I could not discuss certain matters with my DOJ superiors, or rely on the collective resources of OLC, which usually assigned several attorneys to work on an opinion. Operational security demanded by the war on terrorism changed some of OLC's standard operating procedures.
When the New York Times published the stories on the NSA, a firestorm of controversy broke out. Some Democratic congressmen suggested that President Bush should be impeached for violating federal law and the Constitution, a view shared by several liberal commentators. A group of law professors and the Congressional Research Service separately argued that the President had broken the law by acting outside the federal wiretapping statutes. In March 2006, Senator Russell Feingold even introduced a motion in the Senate to censure President Bush for approving "an illegal program to spy on American citizens on American soil."3 Feingold called the NSA program "right in the strike zone of the concept of high crimes and misdemeanors," referring to the standard for impeachment. Feingold, it should be added, was the only senator to vote against the Patriot Act in 2001.4
