58 • THE FEDERAL LAWYER • July 2016 The Curious and Questionable History of FISA FROM RICHARD NIXON AND GEORGE W. BUSH TO EDWARD SNOWDEN WYLIE STECKLOW

ur founding Fathers birthed this nation 2015 changes to the FISA process became effective, removing the as an act of dissent, in part, due to broad language of § 215 of the (discussed below) and creating independent advocates to represent the citizenry in the their belief that the British monarchy FISA Court. But how did this spying program continue in secret and would continue its violations of unchecked for all these years? Are the changes enacted by Congress Oan individual’s inalienable right to be free to sufficient to balance the needs of protecting us from terrorism and pursue life, liberty, and happiness. For the first safeguarding our privacy? 250 years of our history, our political systems The FISA Court Is a Nixon Legacy checked and successfully balanced the need FISA was born in the aftermath of unlawful behavior of the executive for security with the basic Fourth Amendment branch of government.3 President Richard Nixon did not restrict 4 guarantees of freedom from unlawful searches. his spying to Watergate and one specific opposition candidate. Following Nixon’s resignation, Senate investigations uncovered The advent of technology, excessive—and often unconstitutional domestic intelligence activities that violated the unauthorized—use of clandestine activities Fourth Amendment,5 authorized by Nixon against political and by the executive branch,1 and, more recently, activist groups. the political response to the rise in global and In response, Congress passed FISA, which established both judi- cial oversight (the FISA Court)6 and a process for the government to domestic terrorism sacrificed privacy for the obtain surveillance warrants for covert intelligence gathering within facade of security. the United States for the purpose of collecting foreign intelligence and/or foreign counterintelligence.7 The FISA Court consists of 11 Congress acted in 1978, passing the Foreign Intelligence Service Act Article III district judges (increased from seven by the PATRIOT (FISA) and creating a court, designed to operate in secret proceed- Act), each unilaterally appointed by the Chief Justice of the Supreme ings, to oversee surveillance warrants. The FISA Court continued to Court.8 Due to national security concerns, this court and its proceed- operate in secret,2 unhindered by checks and balances, leading to ings were closed to the public, held ex parte, and were nonadversar- the massive bulk data spying program that was initially denied until ial.9 The court heard evidence presented solely by those seeking the disclosed by Edward Snowden in 2013. surveillance warrants, though there have been amicus submissions Following the controversial Snowden disclosures, leaders in specific instances.10 Since the establishment of the FISA Court, with diverse backgrounds and ideologies urged Congress to make various statutory amendments have expanded FISA’s scope while changes to the FISA Court. Congress acted, and in the late days of loosening its oversight, culminating in the passage of the USA PATRI-

July 2016 • THE FEDERAL LAWYER • 59 OT Act in the immediate aftermath of 9/11. Since fall 2001, efforts by two members of the White House staff: Acting U.S. Attorney General congressional leaders, constitutional litigation by the American Civil James Comey and U.S. Attorney General John Ashcroft, who was at Liberties Union (ACLU) and Electronic Freedom Foundation (EFF), the time in the intensive care unit of a Washington, D.C., hospital.21 among others, as well as the very public disclosure by Edward In 2005, reported on Stellarwind,22 and Vice Snowden, have challenged the functionality and constitutionality of President Dick Cheney responded, “It’s good, solid, sound policy. … the FISA Court and its regular operations. It’s the right thing to do.”23 Judge Harold A. Baker, a former FISA Court judge disagreed: “The president was bound by the law ‘like FISA Critics everyone else.’ If a law like the Foreign Intelligence Surveillance Act The FISA Court has many critics, ranging from the Electronic Privacy is duly enacted by Congress and considered constitutional, the pres- Information Center to HBO’s John Oliver.11 Citing the court’s non-ad- ident ignores it at the president’s peril.”24 In December 2005, Judge versarial nature and statistical approval of 99.7 percent of warrant James Robertson resigned from the FISA Court in protest because requests,12 critics call the FISA Court a rubber stamp. Proponents of the Bush administration’s Stellarwind program was bypassing the the court indicate that many requests are withdrawn and modified, so court on warrantless wiretaps.25 Numerous representatives on both the high warrant approval rate is misleading. Yet, during the 25 years sides of the aisle expressed concern about the scope and legality from 1979 to 2013, more than 35,000 requests were submitted, and of the Bush Presidential Surveillance Program seeking congressio- just 533 of these were modified before being authorized.13 nal review, including Sens. Chuck Hagel, R-Neb.; Olympia Snowe, Advocates in ex parte proceedings, including those who appear R-Maine; Arlen Specter, R-Penn.; Dianne Feinstein, D-Calif.; Carl in the FISA Court, are under the obligation of heightened candor.14 Levin, D-Mich.; and Ron Wyden, D-Ore., all of whom were members Critics of the FISA Court cite the ex parte nature of the court’s of the Senate Intelligence Committee.26 proceedings as a contributing factor for the court’s failings. FISA In 2007, public outcry and pressure from Congress arising due Court Judge James Robertson agreed with this assessment, stating to the public disclosure of the Stellarwind program forced the Bush that an informed court needs to hear both sides of an argument, Administration to end the NSA warrantless surveillance program and especially when the warrantless surveillance program is involved.15 return oversight to the FISA Court. Yet, similar to its response to the The government proved that human fallibility must be considered in self-reported violations of heightened candor in the FISA Court in the FISA process in September 2000, when it self-reported violations 2000, in the aftermath of the improper surveillance conduct secretly of the obligation of heightened candor in at least 75 different warrant authorized by the Bush White House, Congress again failed to applications presented to the FISA Court.16 Yet, despite these many tighten the checks and balances of privacy and security. Instead, the criticisms and dissents, after the attacks of 9/11, the failings of the FISA Amendments Act of 2008 loosened the FISA Court oversight FISA Court process were disregarded by Congress. and expanded the availability of the government’s warrant powers. This 2008 Act authorized warrantless electronic surveillance for FISA Role Greatly Expands After 9/11 up to one-year periods if the target was a foreigner living abroad, Section 215 of the PATRIOT Act expanded the FISA Court’s author- if requested jointly by the Director of National Intelligence and the ity by (1) eliminating any restriction on the type of business that Attorney General. The Act also increased—from 48 hours to seven could be the subject of a warrant from solely hotels, motels, or car/ days—the length of time Americans living abroad could be surveilled truck rental agencies to any business and (2) broadening the author- without a FISA Court warrant.27 ity as to the type of business record that could be seized. Previously, As the Bush Administration entered its twilight, a presidential records could only be seized if the government could provide “spe- hopeful weighed in on the need to balance privacy and security: cific articulable facts giving reason to believe” that the subject of an investigation was a “foreign power or the agent of a foreign power.”17 I will provide our intelligence and law enforcement agencies Section 215 expanded the scope from records to any tangible thing with the tools they need to track and take out the terrorists and lowered the burden of proof so that the government only needs without undermining our Constitution and our freedom. That to submit that the records were being sought in relation to a foreign means no more illegal wiretapping of American citizens. No intelligence investigation or to protect against international terrorism more national security letters to spy on citizens who are not or clandestine intelligence activities.18 suspected of a crime. No more tracking citizens who do noth- ing more than protest a misguided war. No more ignoring the An Ignoble Legacy Lives On: From Richard Nixon to the Bush law when it is inconvenient. White House Even with the § 215 expansion of warrant authority, Nixon’s uncon- Sen. Barack Obama made these statements in 2007, adding that stitutional conduct that begot the FISA Court was repeated in the “the FISA court works.” 28Once he became president, Obama weighed Bush White House in the aftermath of 9/11. The President’s Sur- in again on the FISA Court, promising to declassify a significant FISA veillance Program (PSP) secretly authorized the National Security Court ruling relating to 9/11.29 In a public speech, he indicated that Agency (NSA) to monitor—without search warrants—phone calls, he agreed the country “needed a more robust public discussion” Internet activity, text messages, and other communications involving about “the balance between security and liberty.”30 any party believed by the NSA to be outside the United States, even Meanwhile, a self-taught computer cybersecurity expert named if the other end of communication was within the United States.19 Edward Snowden ascended the heights of covert cyberactivity The program, called Stellarwind, was not disclosed to the FISA Court within the CIA, obtaining the significant security clearance required or the American public.20 Even the Bush legal team questioned its le- of those working for outside contractors. In 2012, while working for gality, which led to a bizarre hospital bedside confrontation between Dell and assigned as a contractor to U.S. National Security Agency

60 • THE FEDERAL LAWYER • July 2016 facilities in the United States and Japan,31 Snowden became alarmed lawful and thereby granting the government’s motion to dismiss the at the secretive nature of the massive domestic spying program and complaint and denying the ACLU’s request for a preliminary injunc- its unconstitutional nature. He began to download documents con- tion. The ACLU immediately appealed this decision. While the appeal cerning the existence of the program onto his thumb drive.32 In 2013, was pending, Obama consulted with the Privacy and Civil Liberties while with U.S. military contractor Booz Allen Hamilton, he contin- Oversight Board and created an outside review group on intelligence ued to download thousands of documents affirming the existence and communications technologies to make recommendations for and breadth of this program.33 reform.42In January 2014, the Privacy and Civil Liberties Oversight Board issued a report on the telephone records program conducted Snowden’s Tipping Point: Lying to the American Public in the under § 215 of the PATRIOT Act. The report found the program Sacred Halls of Congress unlawful and provided suggestions for FISA reform.43 That same Annually, the Senate Intelligence Committee holds open public month, President Obama addressed the country, stating that he had briefings on worldwide threats to inform the public on issues of declassified more than 40 FISA opinions and orders, and “[t]o ensure global security and how our government is handling these concerns. that the [FISA] Court hears a broader range of privacy perspectives, It is a crime to lie before Congress, punishable by censure, criminal [President Obama was] also calling on Congress to authorize the conviction, and in some cases even jail time. Recently, former Major establishment of a panel of advocates from outside government to League Baseball pitcher Roger Clemens was indicted and tried for provide an independent voice in significant cases before the Foreign perjury in his testimony before Congress.34 On March 12, 2013, the Intelligence Surveillance Court.”44Six months later, a three-person heads of the various intelligence agencies, including Director of Second Circuit panel that included Judges Gerard E. Lynch, Robert National Intelligence James Clapper, CIA Director John Brennan, D. Sack, and Vernon S. Broderick unanimously reversed the decision National Counterterrorism Center Director Matthew Olsen, FBI on the ACLU appeal, ruling that § 215 of the PATRIOT Act and the Director Robert Mueller, Director of the Defense Intelligence Agency statutory scheme to which it relates did not preclude judicial review Lt. Gen. Michael T. Flynn, and Assistant Secretary of State for Intel- and that the bulk telephone metadata program was unlawful and not ligence and Research Philip Goldberg appeared before the Senate authorized by § 215.45 Intelligence Committee. Toward the end of the public session, after a contentious back-and-forth, Sen. Ron Wyden, D-Ore., asked Clapper: Congress Seeks a Balance Between Security and Privacy “Does the NSA collect any type of data at all on millions or hundreds Congress swiftly took action, passing the USA Freedom Act that of millions of Americans?” Clapper replied, “ No sir. Not wittingly. provided a 180-day sunset provision before eliminating § 215 of the There are cases where they could inadvertently perhaps collect, but PATRIOT Act. The Freedom Act required the FISA Court to appoint not wittingly.” 35 a panel of independent constitutional advocates to appear as amicus For Edward Snowden, this public denial was the tipping point. curiae on specific cases. The law set a discretionary standard for Two months later, the former NSA consultant disclosed, via The New when the court should seek advocacy from this panel.46 This was a York Times and The Guardian, the existence of the mass surveil- much-needed correction, as former FISA Court Judge Robertson lance program that had been approved by the FISA Court. In discuss- had previously noted that the FISA Court should hear both sides of ing the rationale for the timing of the disclosure, Snowden credited a case before deciding, especially when it comes to the massive sur- Clapper’s false testimony before the Senate Intelligence Committee: veillance warrants authorized by the 2008 FISA amendment.47In the “Sort of the breaking point was seeing the director of National Intelli- first decision to be issued by the FISA Court after the passage of this gence, James Clapper, directly lie under oath to Congress. … Seeing new law, the court indicated that the case was the type that the new that really meant for me there was no going back.”36 The Snowden law suggested an amicus curiae be appointed.48 However, that FISA disclosures, in addition to proving the very existence of this mass judge opted not to seek amicus help and added to the debate about domestic data surveillance program, also identified that the head of whether these amicus advocates should be discretionary or mandato- National Intelligence had lied to the Senate Intelligence Committee ry. Still, the very next published FISA decision saw the appointment and the American public. From Rep. Justin Amash, R-Mich.,37 to of an amicus.49 The government was taking the position, in a class Sen. Rand Paul, R-Ky.,38 to the author of the PATRIOT Act, Rep. Jim action brought by the Electronic Freedom Foundation, that the Sensenbrenner, R-Wis.,—who also urged Clapper’s prosecution for government could not separate out the records required to defend perjury39—to numerous journalists,40 multiple demands have been this litigation from the rest of the telephone metadata that was to be made to hold Clapper accountable for lying to Congress and the destroyed in the time specified by the Freedom Act. The appointed American people. Yet, none of these calls for justice have resulted in amicus picked apart the government’s arguments and urged the FISA any charge or investigation, and Clapper continues to serve as direc- Court to reject the government’s position and force it to allocate tor of National Intelligence, never being held accountable for lying to the time and money to separate out the class-action records from the Senate Intelligence Committee and the U.S. citizenry. the remaining documents that should then be destroyed.50 On Dec. 2, 2015, five amici curiae advocates were appointed to the FISA Lawyers to the Rescue! The ACLU Sues James Clapper Court: Jonathan G. Cedarbaum, John D. Cline, Laura Donohue, Amy The Snowden disclosures confirmed the existence of this massive Jeffress, and Marc Zwillinger. The ACLU and EFF described these domestic data surveillance program, and civil rights lawyers with advocates as “impressive.”51 the ACLU filed suit, challenging the constitutionality of § 215 of the PATRIOT Act in federal court.41 On Dec. 27, 2013, Judge William H. The Uncertain Future of the FISA Court Pauley of the Southern District of New York issued a 53-page opinion Numerous recommendations have been made, including a call for ruling the NSA’s bulk telephony metadata collection program to be the complete disbandment of this court by Chelsea Manning in The

July 2016 • THE FEDERAL LAWYER • 61 Guardian.52 Yet, while there is a clear need for vigilant security in FISA decisions that will allow for publication of more FISA court de- today’s world, there is an equally clear need to recognize the tension cisions. Judges should write decisions in a manner that can be easily between privacy and First and Fourth amendment rights with these published with small redactions. To evaluate the success of the con- security concerns. Most of the following recommendations fall within stitutional advocate program, data should be collected and disclosed one of three categories—privacy, transparency, and functionality— on the number of requests made for advocates, how often advocates and this section concludes with a recommendation concerning over- file briefs and participate in the FISA proceedings, and other relevant sight of this secret court and its proceedings. These recommenda- issues that will foster more trust by the citizenry tions are not based on the personal opinions of the author, but were compiled from many sources, including the Brennan Center Report,53 Oversight the Privacy and Civil Liberties Oversight Board,54 and the President’s The Privacy and Civil Liberties Oversight Board is an independent, Review Group on Intelligence and Communications Technologies.55 bipartisan agency within the executive branch created by the 9/11 Commission Act of 2007.60 This organization can be utilized as the Privacy auditing and oversight group for the continuing massive data collec- Restrict access to the metadata database by requiring a prereq- tion operation. It can be tasked with overseeing intelligence activities uisite standard to be identified, met, and reviewed by the FISA for foreign intelligence purposes (versus counterterrorism purpos- Court before access is granted. The NSA claims to already utilize a es only). It can be an authorized agency to receive whistleblower standard of reasonable articulable suspicion before a search of the complaints related to civil liberty issues arising from intelligence metadata is allowed.56 Each request approved by the NSA based on community activities. History has proven the absolute need for such a reasonable articulable suspicion should be submitted to the FISA independent oversight. Court for approval. All companies served with subpoenas for mass data collection of their customers should be granted a limited ability While Clapper Lives on American Salary, to disclose the existence of the subpoena and (in some fashion) the Snowden Suffers in Exile data being sought/disclosed. The standard to be used on disclosure On June 14, 2013, the Department of Justice revealed espionage was set down by the President’s Review Group: A program of this charges against Snowden.61 The multiple demands for Snowden to re- magnitude should be kept secret from the American people only if ceive clemency and come home, including a petition that had 167,000 (1) the program serves a compelling governmental interest and (2) signators on Whitehouse.gov,62 have not been successful.63 Prior to the efficacy of the program would be substantially impaired if our being elected to office, President Obama was Professor Obama teach- enemies were to know of its existence.57 ing constitutional law at University of Chicago Law School. One can only hope that in the twilight of his presidency, he can hark back to Functionality his days of professorship and recognize that the healthy public debate Reduce the number of hops allowed under the surveillance from three surrounding the NSA massive data collection would not exist but for to two.58 Create an easier path for FISA decisions to be reviewed by Edward Snowden heeding the words of Supreme Court Justice Louis the FISA Court of Review. Urge FISA judges to seek more assistance in D. Brandeis64 and shedding sunlight on this unlawful spying program technical areas to understand and accept or reject technical positions (whose very existence was denied just months earlier). Clapper con- taken in surveillance requests. Perhaps appointing a panel of techni- tinues to live free and on a large government salary as director of this cal experts similar to the constitutional advocates appointed would nation’s National Intelligence, while Snowden lives in exile. An open help FISA judges understand some of the technicalities of the private and free country should not be punishing a young man for provid- data being surveilled. Constitutional advocates should continue to be ing information—that should have been public—to journalists who appointed for specific terms, and they should report on how often they responsibly published this information. Even if Clapper gets away are utilized and analyze whether the appointment by request is work- with deceiving our country, let’s not also punish Snowden for bringing ing. Change the appointment process of FISA Court judges. It cannot these deceptions to our attention. President Obama, bring him home. be fair representation of our country’s diverse citizenry, culture, and Grant Edward Snowden clemency.  values if one individual (Chief Justice of Supreme Court) is the sole and exclusive appointer of each FISA Court judge. The appointment Wylie Stecklow is a partner in Stecklow & should move from an individual to a group, such as each Supreme Thompson, a downtown NYC civil rights Court justice or each chief judge of the circuit courts or the constitu- litigation boutique firm. He is the FBA’s tional advocates, or any of the other myriad suggestions. But leaving national Civil Rights Law Section chair-elect and the SDNY Chapter vice president. He is a it this way means that in the last 40 years, only Republican-appointed founding member of the National Action justices have chosen FISA judges.59 This in no way should be taken Network’s Legal Rights Nights, a recipient of as any type of slight against the current Chief Justice but should be U.S. Congress Special Recognition for Community Service, NYC Council Certificate viewed in a forward-thinking manner. for Outstanding Citizenship, and Manhattan Borough President’s Certificate of Recognition for Community Service. Transparency In 2004, he served in top hat and tails as General Counsel for Billionaires for Bush. In 2008, he represented more than 180 Review all prior FISA decisions to determine whether they can be individuals arrested during the Sean Bell day of action. In 2011, his edited and redacted to allow for publication without substantially firm, retained by the Occupy Wall Street General Assembly, organized impairing the program. Publishing more decisions creates more pro bono representation for over 200 Occupy arrestees.© Wylie Stecklow. All rights reserved. transparency and lifts the veil from this secret court, which is the cornerstone of democratic governance. Create a standard for all new

62 • THE FEDERAL LAWYER • July 2016 Endnotes able at www.epic.org/privacy/terrorism/fisa/nacdl_fisa_brief.pdf. 1 See United States v. Ehrlichman, 546 F.2d 910, 914 (D.C. Cir. 11 “Last Week Tonight with John Oliver: Government Surveillance 1976) (describing history of “the Special Investigations” or “Room (HBO)” (Video), LastWeekTonight (first aired April 5, 2015), 16” unit within the Nixon White House and some of the burglar- HBO Networks, available at www.edwardsnowdennews.com/ed- ies and other “covert operations” the unit performed), See, e.g., ward-snowden/last-week-tonight-with-john-oliver-government-sur- Ellsberg v. Mitchell, 709 F.2d 51, 53-55 (D.C. Cir. 1983) (noting that veillance-hbo. the defendants, members of the Nixon Administration, admitted to 12 From a statistical analysis by Electronic Privacy Information wiretapping “one of plaintiffs’ attorneys or consultants” on direct Center, during the 25 years from 1979–2004, 99.7 percent of warrant orders of the President), James Risen and Eric Lichtblau,“Bush Lets requests were granted. Foreign Intelligence Surveillance Act Court US Spy on Callers Without Courts,” The New York Times (Dec. 16, Orders, 197-2015,” Electronic Information Privacy Center, available 2005), available at www.nytimes.com/2005/12/16/politics/bush-lets- at www.epic.org/privacy/wiretap/stats/fisa_stats.html (last visited us-spy-on-callers-without-courts.html May 27, 2016). 2 See United States v. Abu-Jihaad, 531 F. Supp. 2d 299, 310 (D. 13 Id. Conn. 2008) (“Courts have uniformly held that ex parte and in 14 ABA Model Rules of Professional Conduct (2009), R. 3.3(d) (“In an camera inspections are the ‘rule’ under FISA, and that disclosures ex parte proceeding, a lawyer shall inform the tribunal of all material and adversary hearings are the ‘exception, occurring only when facts known to the lawyer that will enable the tribunal to make an necessary.’”) (quoting United States v. Duggan, 743 F.2d 59, 78 (2d informed decision, whether or not the facts are adverse.”). Cir. N.Y. 1984) and collecting cases). See also 50 U.S.C. §§ 1802(b), 15 Dan Robert, “US must fix secret FISA courts, says top judge who 1805(a) (authorizing FISA Court proceedings to be ex parte), 50 granted surveillance orders,” The Guardian (July 9, 2013), available U.S.C. § 1805(c)(2)(B) (providing that upon the applicant’s request, at www.theguardian.com/law/2013/jul/09/fisa-courts-judge-nsa-sur- the FISA Court order authorizing surveillance “shall” direct any veillance. common carrier or similar entity through which the surveillance is 16 Philip Shenon, “Secret Court Says F.B.I. Aides Misled Judges in 75 performed to “protect [the] secrecy” of the surveillance). Cases,” The New York Times (Aug. 23, 2002), available at www. 3 See United States v. Ehrlichman, 546 F.2d 910, 914 (D.C. Cir. nytimes.com/2002/08/23/us/secret-court-says-fbi-aides-misled-judg- 1976) (describing history of “the Special Investigations” or “Room es-in-75-cases.html. 16” unit within the Nixon White House and some of the burglaries 17 Muslim Cmty. Ass’n v. Ashcroft, 459 F. Supp. 2d 592, 597 ( E.D. and other “covert operations” the unit performed). Mich. 2006) (citing 50 U.S.C. § 1861(b)(2)). 4 See, e.g., Ellsberg v. Mitchell, 709 F.2d 51, 53-55 (D.C. Cir. 1983) 18 See Muslim Cmty. Ass’n v. Ashcroft, 459 F. Supp. 2d 592, 597 (E.D. (noting that the defendants, members of the Nixon Administration, Mich. 2006) (citing 50 U.S.C. § 1861(b)(2)). admitted to wiretapping “one of plaintiffs’ attorneys or consultants” 19 “In December 2005, news agencies began reporting that President on direct orders of the President). George W. Bush had ordered the National Security Agency (NSA) to 5 See Final Report of the Select Committee on Presidential Campaign conduct eavesdropping of some portion of telecommunications in the Activities, S. Rep. No. 93-981, 93d Cong., 2d Sess., 564 (1974). See United States without warrants and that the NSA had obtained the also Napolitano, Hon. Andrew J., “Is the FISA Court Constitutional?”, cooperation of telecommunications companies to tap into a significant Creators.com (Sept. 26, 2013), available at www.creators.com/opin- portion of the companies’ telephone and e-mail traffic, both domestic ion/judge-napolitano/is-the-fisa-court-constitutional.html. and international.” Al-Haramain Islamic Foundation, Inc v. Bush (In 6 The act also created the FISA Court of Review, which rarely hears re NSA Telcoms. Records Litig.), 633 F. Supp. 2d 949, 955 (N.D. Cal. appeals, hearing its first appeal in 2002. Its jurisdiction is limited 2009) (citing James Risen and Eric Lichtblau,“Bush Lets US Spy on to the “denial of any application made under this Act.” (emphasis Callers Without Courts,” The New York Times (Dec 16, 2005)). See also added). See Foreign Intelligence Surveillance Act of 1978, Act Oct. In re Nsa Telcoms. Records Litig., 2010 U.S. Dist. LEXIS 136156 (N.D. 25, 1978, Pub. L. No. 95-511, § 1, 92 Stat. 1783, codified at 50 U.S.C. Cal. Dec. 21, 2010) (stating that the program involved “interception, §§ 1801 et seq. See 50 U.S.C. §1803(b). See also “Foreign Intelli- without court order, of international communications”). gence Surveillance Court of Review - Further Readings,” available 20 Tim Weiner, Enemies: A History of the FBI, 421 (Random House, at http://law.jrank.org/pages/6961/Foreign-Intelligence-Surveil- New York (2012)). lance-Court-Review.html (last accessed May 27, 2016). 21 Id. at 433-434. See also Unclassified Report on the President’s Sur- 7 McAdams III, James G., “Foreign Intelligence Surveillance Act veillance Program, Report No. 2009-0013-AS, Office of the Inspector (FISA): An Overview,” Federal Law Enforcement Training Cen- General of the Department of Justice, et al. (July 9, 2009). ters, available at www.fletc.gov/sites/default/files/imported_files/ 22 James Risen and Eric Lichtblau,“Bush Lets US Spy on Callers With- training/programs/legal-division/downloads-articles-and-faqs/re- out Courts,” The New York Times (Dec. 16, 2005), available at www. search-by-subject/miscellaneous/ForeignIntelligenceSurveillanceAct. nytimes.com/2005/12/16/politics/bush-lets-us-spy-on-callers-without- pdf (last accessed May 27, 2016). courts.html. 8 See 50 U.S.C. § 1803(a)(1). 23 “Cheney: Bush has right to authorize secret surveillance,” CNN 9 See 50 U.S.C. §§ 1802(b), 1805(a). (Dec. 20, 2005), available at www.cnn.com/2005/POLITICS/12/20/ 10 Brief on Behalf of Amicus Curiae National Association of Criminal De- cheney.wiretaps. fense Lawyers in Support of Affirmance,” filed Sept. 26, 2002, NACDL 24 Eric Lichtblau, “Judges on Secretive Panel Speak Out on Spy Amicus Committee, In re Appeal from July 19, 2002 Decision of Program,” The New York Times (March 29, 2006), available at www. the United States Foreign Intelligence Surveillance Court, Case nytimes.com/2006/03/29/politics/29nsa.html. No. 02-001 (U.S. Foreign Intel. Surveillance Ct. of Review), avail- 25 Carol D. Leonnig and Dafna Linzer, “Spy Court Judge Quits In

July 2016 • THE FEDERAL LAWYER • 63 Protest,” (Dec. 21, 2005), available at www. Intelligence,” The White House, Office of the Press Secretary washingtonpost.com/archive/politics/2005/12/21/spy-court-judge- (January 17, 2014), available at www.whitehouse.gov/the-press-of- quits-in-protest/9dfc1009-6854-4f13-aa34-2eac70c251d5. fice/2014/01/17/remarks-president-review-signals-intelligence. 26 Wartime Executive Power and the National Security Agency’s Sur- 43 “Report on the Telephone Records Program Conducted under veillance Authority: Hearings Before the Senate Committee on the Section 215 of the USA PATRIOT Act and on the Operations of the Judiciary, 109th Cong. 2nd Session (Feb. 6, 2006), transcript available Foreign Intelligence Surveillance Court,” Privacy and Civil Liberties at http://fas.org/irp/congress/2006_hr/nsasurv.html. Oversight Board (Jan. 23, 2014), available at https://www.pclob.gov/ 27 See Foreign Intelligence Surveillance Act of 1978 Amendments Act library/215-Report_on_the_Telephone_Records_Program.pdf. of 2008, July 10, 2008, 122 STAT. 2436, Pub. L. No. 110–261 (110th 44 Obama, Barack, “Transcript of President Obama on changes to Congress), §§ 702(a) & (g)(1)(B). National Security Agency programs,” Washington Post (Jan. 17, 28 Barack Obama, Speech at DePaul University Student Activities 2014), available at https://www.washingtonpost.com/politics/full- Center (Oct. 7, 2007), available at http://www.c-span.org/vid- text-of-president-obamas-jan-17-speech-on-nsa-reforms/2014/01/17/ eo/?201316-1/obama-foreign-policy-speech. See also “Savage, Char- fa33590a-7f8c-11e3-9556-4a4bf7bcbd84_story.html. lie, “Power Wars: Inside Obama’s Post-9/11 Presidency,” Little Brown 45 ACLU v. Clapper, 785 F.3d 787 (2d Cir. 2015). and Company, New York (2015). 46 See 50 U .S.C. §§ 1803(i)(l) – (i)(2)(B). 29 Lawrence Wright, “The Twenty-Eight Pages,” The New Yorker 47 Dan Robert, “US must fix secret FISA courts, says top judge who (Sept. 9, 2014), available at http://www.newyorker.com/news/dai- granted surveillance orders,” The Guardian (July 9, 2013), available ly-comment/twenty-eight-pages . at www.theguardian.com/law/2013/jul/09/fisa-courts-judge-nsa-sur- 30 “Press Release: Remarks by the President on Review of Signals veillance. Intelligence,” The White House, Office of the Press Secretary 48 In re Applications of the Federal Bureau of Investigation for (January 17, 2014), available at www.whitehouse.gov/the-press-of- Orders Requiring the Production of Tangible Things, Docket Nos. fice/2014/01/17/remarks-president-review-signals-intelligence. BR 15-77, 15-78 (U.S. Foreign Intel. Surveillance Ct., Jun. 17, 2015), 31 Mark Hosenball, “Snowden downloaded NSA secrets while available at http://www.fisc.uscourts.gov/sites/default/files/BR%20 working for Dell, sources say,” Reuters (Aug. 15, 2013), available 15-77%2015-78%20Memorandum%20Opinion.pdf. at www.reuters.com/article/usa-security-snowden-dell-idUSL- 49 Jasob, Fischler, “FISC Names Spy Defense Atty Adviser For FBI 2N0GF11220130815. Metadata Case,” Law360 (Sept. 28, 2015), available at www.law360. 32 “Snowden began downloading NSA files a year earlier than previ- com/articles/708032/fisc-names-spy-defense-atty-adviser-for-fbi- ously reported,” RT News (Aug. 16, 2013), available at www.rt.com/ metadata-case. usa/snowden-documents-dell-nsa-580/. 50 Tim Cushing, “FISA Court’s Appointed Advocate Not Allowing Gov- 33 “Ex-NSA Chief Details Snowden’s Hiring at Agency, Booz Allen,” ernment’s ‘National Security’ Assertions To Go Unchallenged,” Tech- The Wall Street Journal (Feb. 4, 2014), available at www.wsj.com/ Dirt (Dec. 11, 2015), available at www.techdirt.com/blog/?tag=am- articles/SB10001424052702304626804579363651571199832. icus. 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U.S. Senate, 113th Cong. 1st Session (March 12, 2013), transcript (p. 51 Cyrus Farivar, “America’s super-secret court names five lawyers as 66) available at https://fas.org/irp/congress/2013_hr/threat.pdf. public advocates,” Ars Technica (Nov. 28, 2015 ), available at http:// 36 “Snowden-Interview: Transcript,” Norddeutscher Rundfunk (radio) arstechnica.com/tech-policy/2015/11/americas-super-secret-court- (first broadcast Jan. 23, 2014),available at www.ndr.de/nachricht- names-five-lawyers-as-public-advocates. en/netzwelt/snowden277_page-2.html. 52 Chelsea E. Manning, “FISA courts stifle the due process they were 37 Carlo Muñoz, “GOP’s Amash: Clapper should resign,” The Hill (June supposed to protect. End them.” The Guardian (Nov. 3, 2015), avail- 12, 2013), available at www.thehill.com/policy/defense/305031-rep- able at www.theguardian.com/commentisfree/2015/nov/03/end-fisa- amash-calls-for-dni-clapper-to-resign. courts-due-process-chelsea-manning. 38 Jose Delreal, “Paul slams Clapper over NSA ‘lying’,” Politico 53 Elizabeth (Liza) Goitein and Faiza Patel, “What Went Wrong with (Dec. 18, 2013), available at www.politico.com/story/2013/12/ the FISA Court,” Brennan Center For Justice (2015), available at rand-paul-james-clapper-national-security-agency-101306. www.brennancenter.org/publication/what-went-wrong-fisa-court. 39 Giuseppe Macri “Sensenbrenner: ‘Clapper ought to be fired and 54 “Report on the Surveillance Program Operated Pursuant to Section prosecuted’,” The Daily Caller (Dec. 6, 2013), available at www. 702 of the Foreign Intelligence Surveillance Act,” Privacy and Civil dailycaller.com/2013/12/06/sensenbrenner-clapper-ought-to-be-fired- Liberties Oversight Board (July 2, 2014), available at https://www. and-prosecuted. pclob.gov/library/702-Report.pdf 40 David Keene, “KEENE: James Clapper should resign for lying to 55 Richard Clarke, et al., “The NSA Report: Liberty and Security in a Congress,” Washington Times (Dec.12, 2013), available at www. Changing World,” The President’s Review Group on Intelligence and washingtontimes.com/news/2013/dec/12/keene-failing-to-do-the-hon- Communications Technologies (Dec. 12, 2013), available at www.white- orable-thing. house.gov/sites/default/files/docs/2013-12-12_rg_final_report.pdf. 41 ACLU v. Clapper, No. 13-CV-03994 (S.D.N.Y. 2013). 56 William Saletan, “Going Courtless: The NSA searches its mass data- 42 “Press Release: Remarks by the President on Review of Signals continued on page 66

64 • THE FEDERAL LAWYER • July 2016 Civil Forfeiture continued from page 49 from the necessity of the case, as the only available at judiciary.house.gov/wp-content/ 37 George Mason, Fairfax County Freeholders’ adequate means of suppressing the offence uploads/2016/02/Smith-Testimony.pdf. Address and Instructions to Their General or wrong, or [e]nsuring an indemnity to the 27 Dick M. Carpenter et al., Policing for Assembly Delegates (May 30, 1978), in injured party.”). Profit: The Abuse of Civil Asset Forfeiture Jeff Broadwater, George Mason: Forgotten 20 See, e.g., The Brig Malek Adhel, 43 U.S. 12–13 & Fig. 4 (2d ed. 2015). The Institute Founder 153 (2006). (2 How.) at 233 (justifying forfeiture of an for Justice published this second edition of 38 For statutes authorizing equitable sharing, innocent owner’s vessel under piracy and its landmark comprehensive study evaluat- see 21 U.S.C. §§ 881(e)(1)(A) and (e)(3), admiralty laws because of “the necessity ing each jurisdiction’s forfeiture laws. 18 U.S.C. § 981(e)(2), and 19 U.S.C. of the case, as the only adequate means 28 18 U.S.C. § 983(c)(1). See also Carpenter § 1616a. of suppressing the offence or wrong”); et al., supra note 16 (noting that this is the 39 Nick Sibilla, The 14 Most Ridiculous The Palmyra, 25 U.S. (12 Wheat.) at 14 standard for 31 states as well). Things Police Bought With Asset (concerning revenue laws); United States v. 29 Id. at 20 (noting that this is also true for 35 Forfeiture (June 24, 2013), www.buzzfeed. The Schooner Little Charles, 1 Brock. 347, states). com/nicks29/the-14-most-ridiculous-things- 354 (C.C.D. Va. 1818) (per Marshall, C.J.) 30 Id. at 12; see also Jefferson E. Holcomb et police-bought-with-a-4y3w. (concerning embargo laws). al., Civil Asset Forfeiture, Equitable Shar- 40 For more information on the Hirsch broth- 21 Boudreaux & Pritchard, 33 San Diego L. ing, and Policing for Profit in the United ers, visit ij.org/case/long-island-forfeiture/. Rev. at 101. States, 39 J. Crim. Just. 273 (2011). 41 For more information on Carole Hinders, 22 Carroll v. United States, 267 U.S. 132, 155 31 See, e.g., 28 U.S.C. § 524(c)(1) (establish- visit ij.org/case/iowa-forfeiture/. (1925). ing the DOJ Assets Forfeiture Fund, which 42 For more information on Charles Clarke, 23 United States v. One 1936 Model Ford allows forfeiture proceeds to be used for a visit ij.org/case/kentucky-civil-forfeiture/. V-8 De Luxe Coach, Commercial Credit variety of law-enforcement purposes); 31 43 For more information on Russ Caswell, visit Co., 307 U.S. 219, 236 (1939). U.S.C. § 9705 (establishing the Department ij.org/case/massachusetts-civil-forfeiture/. 24 Id. at 226. of the Treasury Forfeiture Fund). 44 Michael Sallah et al., Stop and Seize, 25 Eric Blumenson & Eva Nilsen, Policing for 32 Comprehensive Crime Control Act of 1984, Wash. Post, Sept. 6, 2014, available Profit: The Drug War’s Hidden Economic Pub. L. No. 98-473, 98 Stat. 1837 (1984). at www.washingtonpost.com/sf/ Agenda, 65 U. Chi. L. Rev. 35, 42–45 (1998). 33 Carpenter et al., supra note 10. investigative/2014/09/06/stop-and-seize/. 26 See Federal Asset Forfeiture: Uses and 34 U.S. Dep’t of Justice, FY 2013 Total Net De- 45 See Shaila Dewan, Law Lets IRS Seize Reforms: Hearing Before the Subcomm. posits to the Fund by State of Deposit as of Accounts on Suspicion, No Crime on Crime, Terrorism, Homeland Security, Sept. 30, 2013, available at www.justice.gov/ Required, N.Y. Times, Oct. 25, 2014, at A1, and Investigations of the H. Comm. on the jmd/afp/02fundreport/2013affr/report1.htm. available at www.nytimes.com/2014/10/26/ Judiciary, 114th Cong. (2015) (statement of 35 Carpenter et al., supra note 10. us/law-lets-irs-seize-accounts-on-suspicion- David B. Smith, Smith & Zimmerman, PLLC), 36 Id. no-crime-required.html?_r=0.

History of FISA continued from page 64 base of phone records without real judicial (three hops). Each hop widens the net ex- ments/world/us-vs-edward-j-snowden-crimi- oversight. That’s unacceptable.” Slate (June ponentially, so that if the average person has nal-complaint/496. 21, 2013), available at www.slate.com/ 40 contacts, a single terrorism suspect could 62 “Pardon Edward Snowden,” We the People, articles/technology/technology/2013/06/war- theoretically lead to records being collected Your Voice in the White House, available at rantless_searches_the_court_oversight_of_ on 2.5 million people. https://petitions.whitehouse.gov/petition/ nsa_phone_surveillance_is_a.html. 59 “Since the (current) chief justice began pardon-edward-snowden (last visited May 57 “Liberty and Security in a Changing World,” making assignments in 2005, 86 percent of 27, 2016). Report and Recommendations of The Pres- his choices have been Republican appoin- 63 Kate Knibbs, “White House Responds to ident’s Review Group on Intelligence and tees, and 50 percent have been former exec- Petition to Pardon Snowden With a Hard Communications Technologies, available at utive branch officials.” Scott Horton, “The Pass, Gizmodo (July 29, 2015), available https://www.whitehouse.gov/sites/default/ G.O.P.’s Surveillance Judiciary,” Harper’s at http://gizmodo.com/white-house-re- files/docs/2013-12-12_rg_final_report.pdf. Magazine (July 29, 2013), available at http:// sponds-to-petition-to-pardon-snowden- 58 The phrase “three hops,” which comes harpers.org/blog/2013/07/the-gops-surveil- with-1720831190. from NSA honcho John Inglis’ testimony lance-judiciary. 64 “Publicity is justly commended as a remedy to the House Judiciary Committee in July, 60 “About​​ the Board,” Privacy and Civil Liberties for social and industrial diseases. Sunlight is means that the agency can look at the com- Oversight Board, available at www.pclob.gov/ said to be the best of disinfectants; electric munications of the person it’s targeting, plus about-us.html (last visited May 27, 2016). light the most efficient policeman.” Hon. the communications of that person’s con- 61 United States v. Edward Snowden, Louis Brandeis, “Other People’s Money,” tacts (one hop), plus the communications of No. 13-cr-265 (CMH) (E.D. Va.), Criminal National Home Library Foundation, 62 (1933). those people’s contacts (two hops), plus the Complaint (filed June 14, 2013),available communications of those people’s contacts at http://apps.washingtonpost.com/g/docu-

66 • THE FEDERAL LAWYER • July 2016