100 Days, Trump, & Precaution

By William C. Banks & David M. Driesen

Environmental law embraces the “precautionary principle” as a guide for decision makers in dealing with uncertainty. The precautionary principle supports taking cost effective measures to address catastrophic or irreversible harm even before we have a complete understanding of an environmental threat, lest we act too late. We act on this common-sense principle when we look both ways before crossing a street or purchase insurance before a flood or hurricane occurs.

“Just as we often do not have a complete understanding of potential environmental threats that we must manage, we cannot know for sure what dangers the unpredictable Trump administration may pose to national security.”

The precautionary principle may prove useful in managing the potential threats that an erratic and unpredictable Trump Administration may pose to national security in the next 100 days and beyond. Troubling revelations about the Trump campaign’s ties with Russia and Russian influence on the election dominated much of the first 100 days.

Trump’s surprising decision to bomb Syria in response to a horrific gas attack on civilians and to claim that he was sending an armada to North Korea (when the ships were headed in the opposite direction) have commanded more attention than the Russian ties toward the end of the first 100 days, in spite of a new revelation that a special court found that the government had probable cause to believe that former Trump advisor Carter Page was a Russian agent.

Just as we often do not have a complete understanding of potential environmental threats that we must manage, we cannot know for sure what dangers the unpredictable Trump administration may pose to national security. Trump’s strike against Syria, while widely applauded as an appealing response to a horrific chemical weapons attack, may do more harm than good to our national security by further marginalizing the role of Congress in authorizing military force and causing Russia to repudiate an agreement to avoid interfering with our efforts to defeat Al Queda.

To what extent will Trump’s unconstitutional travel bans aid ISIS and Al Queda recruitment by suggesting that we disrespect Muslims? Will Russia dangerously assume that we will not defend the Ukraine because of Russia’s ties to Donald Trump? And how much damage may future impetuous decisions cause? We just don’t know.

Furthermore, impulsive unilateral measures can cause catastrophic and irreversible harms—the sort of harm that the precautionary principle is designed to address. the President’s bellicose threats to attack North Korea may make for good television sound bites, but they could lead to nuclear war. And by promising to send a battleship toward North Korea whilst it steamed off in another direction, Trump increased the odds of grave miscalculation by adversaries.

Instead of reacting to each new tweet and tick of the Trump administration we should take precautionary measures before irreversible and catastrophic harm takes place. The Constitution places the war power in the Congress precisely to prevent a single person from making decisions that imperil the country. Congress must now exercise its authority to explicitly limit Trump’s discretion to act unilaterally. Congressmen Edward Markey and Ted Lieu have introduced legislation to prohibit first strikes with nuclear weapons. Congress should hold hearings on that bill and consider other limits on Trump’s war power, such as geographic or enemy-specific limits on the use of military force …

To read the full article, click here.

William C. Banks is Director of INSCT. His colleague David M. Driesen is University Professor at SU Law and an expert in environmental law, law and economics, and constitutional law.

Soldiers on the Home Front: President Trump & the Military

By William C. Banks & Stephen Dycus

(Re-published from The Hill, Aug. 4, 2016) 

News photos depicting the aftermath of recent terrorist attacks in Paris, Brussels, Istanbul, and Nice show heavily armed soldiers patrolling the streets. Troops have not yet been deployed in response to terrorism in this country since 9/11, but they might be. Americans should be deeply concerned about this possibility. Here’s why.

“If President Trump were as bellicose and bombastic as candidate Trump, he might direct the defense department to take the lead among federal agencies in responding to continuing terrorist threats, despite his tenuous legal authority for doing so.”

Imagine that soon after the presidential inauguration next January several U.S. cities are hit by ISIS-inspired terrorist attacks. Using conventional weapons and truck bombs, jihadists kill dozens of people and injure many more. Intelligence and police officials say they have thwarted other attacks, and they have detained a number of suspects, but others remain at large. Americans everywhere are on edge.

Now imagine that news bulletins begin to report power blackouts on the West Coast. Terrorists have blown up transformers and power lines, and they have mounted a cyberattack on the electric grid. As the blackout rolls eastward, major elements of the nation’s infrastructure — the Internet, public water supplies, the banking system — also start to fail. Widespread panic quickly ensues.

This is not a far-fetched scenario. Many experts believe it’s not a matter of whether, but when.

If Donald Trump were President in January, how would he respond? Would Trump, as Commander in Chief, order military forces out into the streets of American cities? If he did, what would he authorize those troops to do?

If President Trump were as bellicose and bombastic as candidate Trump, he might direct the Defense Department to take the lead among federal agencies in responding to the attacks, despite questionable legal authority for doing so — or he might even declare martial law. He might order troops to patrol the nation’s streets and neighborhoods, arrest citizens, and use military force to maintain order. The new president might even ignore a judge’s orders that found these actions unlawful.

President Trump might follow through on his campaign pledge to bar Muslims from entering the country. Or he might order the Army to spy on those already here. With support from many angry and frightened Americans, he might use troops to imprison all Muslims or even to torture those in military custody.  (He has said of waterboarding, “I like it a lot. I don’t think it’s tough enough.”)

For good measure, the new president might unleash armed drone aircraft over American cities, with orders to kill suspected terrorists and their families.

Finally, in response to the escalating crisis, President Trump might direct military commanders to take over the Internet, radio, and TV, allowing only communications approved by the White House.

If he did any of these things, President Trump would violate a long tradition of avoiding military intrusions into civil society whenever possible.

Americans have always embraced the military at home with caution. We understand the value of a highly disciplined, well-equipped, experienced fighting force to defend against foreign invaders or to help out when civilian authorities are overwhelmed by domestic violence or natural disasters. Sometimes U.S. troops operating on home soil have done what no other government entity could — saving thousands of lives and avoiding huge property losses, as when Hurricane Katrina struck New Orleans …

To read the complete article, click here.

William C. Banks is INSCT Director and Stephen Dycus is a law professor at Vermont Law School. They are coauthors of the recently published Soldiers on the Home Front: The Domestic Role of the American Military.

Defending the Honor of the US Military From Donald Trump

(Re-published from Foreign Policy, March 4, 2016) We the undersigned have devoted a substantial part of our professional lives to studying, writing, and teaching about American civil-military relations.

We have many disagreements among ourselves on a range of important topics. In particular, we have strong and principled disagreements about politics. We have in the past, and will likely continue, to vote for different candidates for president.

But we all agree on one important matter: if any president orders the U.S. military to commit war crimes, the U.S. military will be legally and professionally obliged to refuse to carry out those orders. Moreover, we believe the U.S. military will, in fact, resist such orders. Refusing to implement them will not be a violation of civilian control of the military. Refusing to carry out such orders will protect the rule of law and the constitutional order, of which civilian control of the military is fundamental.

In the current campaign, one leading candidate, Donald Trump, has repeatedly insisted that he will direct the military to take steps that every reputable legal expert we know has deemed illegal: targeting the families of terrorists and other civilians not directly involved in hostilities for lethal military strikes, and torturing suspected terrorists and their families.

If Donald Trump becomes president and carries through with these campaign promises, the U.S. military will be obliged to refuse these orders.

Let us be clear. Here we are only talking about illegal orders. All candidates for president make campaign promises that are legal but may or may not be wise. We are not suggesting that the U.S. military leaders should or will refuse orders they deem unwise, if those orders are otherwise legal.

We recognize that the United States has a strong record of civilian control of the military. That record depends on senior military leaders understanding and fulfilling their obligations under the law. And it depends on presidents and civilian political leaders understanding their obligations to the rule of law as well.

We call on all candidates to acknowledge these basic truths about democratic civil-military relations. And we call upon Donald Trump to cease promising to issue illegal orders to the U.S. military.

Kenneth Allard

Deborah Avant

Andrew J. Bacevich

William Banks

Richard Betts

Risa Brooks

Thomas Bruneau

Paul Camacho

Eliot Cohen

Thomas Donnelly

Peter Feaver

Eugene Fidell

Aaron Friedberg

Christopher Gelpi

Donald Inbody

Richard Kohn

Peter Mansoor

Alberto Mora

Michael O’Hanlon

Barry Posen

Mitchell B. Reiss

Stephen Peter Rosen

Scott Sagan

David R. Segal

Mady Segal

Kori Schake

Patricia Shields

Charles Stevenson

Jeremy Teigen

Stephen Van Evera

Robert Vitas

Cynthia Watson

Claude Welch

John Allen Williams

Amy Zegart

Philip Zelikow

Podcast: William C. Banks, Nathan Sales on Justice Scalia Passing & the Future of the Supreme Court

National security law expert William C. Banks in SU College of Law Interim Dean and Director of INSCT. Nathan Sales is Associate Professor of Law at SU Law and a former Deputy Assistant Secretary for Policy Development at the US Department of Homeland Security; his areas of expertise are national security law, counterterrorism law, administrative law, constitutional law, and criminal law. Sales’ scholarship has been cited by the US Supreme Court multiple times.

INSCT Faculty Discuss Obama’s Announcement to Leave American Troops in Afghanistan Until 2017

(Re-published from The Daily Orange, Oct. 26, 2015) In a major reversal on his commitment to end the almost 14-year-old war in Afghanistan, President Barack Obama announced some United States troops will stay in the country until the end of his term in January 2017.

In a statement made on Oct. 17, the president said about 9,800 American troops will engage in non-combat duties for much of 2016 and 5,500 of them will remain into 2017, characterizing the plan as a “modest but meaningful extension of our presence,” according to The New York Times.

“What the president can do successfully for the next 15 months or so of his administration, along with the others, is to maintain the sufficient level of assistance to the Afghan government, to the Afghan army, and the Afghan national police.”
The Daily Orange spoke to Christopher Ferrero, a post-doctoral fellow in the political science department in the Maxwell School of Citizenship and Public Affairs; Robert Murrett, deputy director of Institute for National Security and Counterterrorism (INSCT); and William Banks, director of INSCT and interim dean of the College of Law about Obama’s change of the Afghan strategy.

The Daily Orange: What was your reaction when you heard the announcement?

Christopher Ferrero: I was glad. I think it’s the common sense thing to do. The Afghan government wants us there. We are making progress against the Taliban; that does not mean that the threat has been eradicated … We do not sustain any strategic damage from maintaining 5,000 to 10,000 troops there. We could sustain strategic damage by withdrawing.

Robert Murrett: I was not surprised because of all of the discussions that have been taking place since the previous announcement that the president made this past spring … relative to the phase of withdrawal from Afghanistan because of the changing circumstances and the ongoing discussions we’ve had with the president of Afghanistan who, in relative terms, has been doing well and also because of the concerns relative to the recent activity by the Taliban. And moreover, [there’s] a broader concern which is voiced by the president and others in the administration about the need to have a longer presence not just in Afghanistan but also other parts of the region because of gains made by insurgents.

The D.O.: Are those numbers of troops specified by the president sufficient to accomplish the goal?

William Banks: It’s a hard question to answer because it’s impossible to know the dynamic of the conflict over the next year and a half. A couple of military assessments that I have seen in the light of his announcement suggested that number—5,500—would be the minimum that could protect the Afghan force, but it may not be sufficient if the Taliban strength continues to increase or if counterterrorism operations that they have to conduct there grow larger and more complex.

The D.O.: Obama has about 15 months remaining in the Oval Office. What do you think the president can achieve in Afghanistan in the meantime?

R.M.: I think what the president can do successfully for the next 15 months or so of his administration, along with the others, is to maintain the sufficient level of assistance to the Afghan government, to the Afghan army and the Afghan national police in ways to provide a sufficient level of security and the path toward a long-term stability in Afghanistan with a central government that has a control of the most of the country.

The D.O.: What do you think of the future of Afghanistan?

C.F.: Afghanistan does not have to become a model democracy for it to be a modest success. As other regions of the Middle East descend into chaos and function as terrorist sanctuaries, I do believe that there is a value in maintaining the interest in the presence in Afghanistan if only to deny sanctuary to hostile forces whether they emanate from the east, which would be Pakistan, the north, which could be Russia and the west, which could be Iran or even Salafi-Jihadists associated with ISIL and al-Qaeda.

http://dailyorange.com/2015/10/ask-the-experts-obama-announces-american-troops-will-remain-in-afghanistan-until-2017/

An ISIL AUMF? Counterterrorism & Congressional Authorization in the US

Raptors refuel prior to strike operations in SyriaBy William C. Banks, Myriam Feinberg, & Daphné Richemond-Barak

(Re-published from iconnectblog, Dec. 18, 2014) While the efficacy of strikes against the Islamic State of Iraq and the Levant (also known as Daesh – Al Al-Dawla Al-Islamiya fi al-Iraq wa al-Sham – in Europe) is questioned, lawyers have, in the past months, grappled with the legal framework forming the basis of the strikes. This post focuses on the United States and provides a useful summary of the issues at stake, the existing instruments and the options available to the US administration.

In a speech on the ‘Strategy to Counter ISIL’ delivered on the eve of the thirteenth anniversary of the 9/11 attacks, President Obama stated that he did not need authorization from Congress for the strikes.

[pullquoteright]This post will analyze the suitability of Article II and the two existing AUMFs to American actions against ISIL, before addressing the possibility of a new AUMF.”[/pullquoteright]The days before the speech had seen much speculation about the intended strategy of the US government in Iraq and Syria in general, and the legal justifications for US actions in particular. The main question was whether the Obama administration would rely on Article II of the US Constitution to justify the strikes, the 2001 Authorization to Use Military Force (AUMF), the 2002 AUMF for Iraq or a brand new authorization from Congress.

On September 10, 2014, the administration announced that the US could rely on the 2001 AUMF to justify strikes against ISIL in Iraq and Syria. Later, the possibility of using the 2002 Iraq AUMF was raised. Then, in a surprising turn of events, President Obama stated in early November that he would, in fact, seek Congressional authorization for the military campaign against ISIL.

Several legal issues emerge from President Obama’s decision to seek Congressional authorization in the fight against ISIL—months after the strikes already began. First is the question of the legality of the United States’ actions until now, in particular because the strikes are likely to continue even if a new AUMF is not adopted. It also raises a number of questions with regard to the scope and nature of a new AUMF, and, more generally, as to the respective roles of Congress and the President in authorizing the use of force. This post will analyze the suitability of Article II and the two existing AUMFs to American actions against ISIL, before addressing the possibility of a new AUMF.

The Current Basis for Strikes

Some argue that, under the War Powers Resolution of 1973, the US President is allowed to use military force for 60 days before having to obtain authorization from Congress. Based on this reading, any action against ISIL justified under the War Powers Resolution is no longer valid. But President Obama did not explicitly rely on the WPR. Instead, he stressed he had “the the authority to address the threat from ISIL, but [that he] believe[s] we are strongest as a nation when the President and Congress work together.”

It has been argued that the President can act under Article II of the US Constitution, which allows the President to initiate defensive military action if there is a compelling US national security interest or if the military operation is limited in nature, scope, and duration. This constitutional argument has the advantage of allowing the President to act immediately and unilaterally. Article II formed the basis for the US airstrikes in Libya in 2011, without Congressional authorization. Indeed, the administration argued in the Libyan context that “because U.S. military operations [in Libya] are distinct from the kind of ‘hostilities’ contemplated by the [War Power] resolution,” it did not have to obtain further authorization …

To read the full post, click here.

William C. Banks is Director of INSCT. Daphné Richemond-Barak leads the International Law Desk of the International Institute for Counter-Terrorism, horsily, Israel. Myriam Feinberg is a Post-Doctoral Fellow of the GlobalTrust Project, Tel Aviv University.

The Role of the Courts in Time of War

By William C. Banks

The role of the courts in judging the actions of government in wartime has ranged from extreme deference to careful probing of alleged government excesses over more than two centuries. The courts’ record has reflected the nature of the armed conflicts the United States has engaged in and the legal bases for the actions at issue. In the aggregate, the courts have served as a necessary counterweight to government overreaching in times of national security crisis. It is easy to underestimate the institutional problems confronting judges who are asked to make momentous decisions in times of national crisis—difficulties of fact-finding and assessing the risks of being wrong, among others. Yet no other part of government is as equipped as the judiciary to anchor the nation to its core values during a storm.

New Battlefields/Old Laws: Debate on the Future of the 2001 AUMF

New Battlefields New Logo-mwedit030713By Myriam Feinberg

(Re-Published from Opinio Juris, Sept. 28, 2014)  As part of the International Institute for Counter-Terrorism’s 14th Annual World Summit on Counter-Terrorism, a workshop was jointly organised by the ICT and the Institute for National Security and Counterterrorism of Syracuse University (INSCT), as part of the project ‘New Battlefields, Old Laws.’ Started in 2006 to adapt our understanding of laws of war, the NBOL Project brings together scholars and experts who aim to address the challenges for the future of armed conflict.

This year’s NBOL workshop dealt with the way we adapt to new threats and expanding battlefields in counterterrorism and culminated in an Oxford Union style debate on the future of the 2001 AUMF. A video of the debate can be found here.

The debate could not have been timelier as the blogosphere is abuzz following President Obama’s speech on the United States’ ‘Strategy to Counter the Islamic State of Iraq and the Levant (ISIL)’ delivered on the eve of the thirteenth anniversary of the attacks of 11 September 2001. In his speech, the President authorised further air strikes against ISIL militants in Iraq and appeared to authorise air strikes in Syria.   He stated that he secured bipartisan support and welcomed further congressional action, yet also made clear that he did not need further authorisation from Congress to launch the strike. Other official statements made clear that the administration was relying on the 2001 Authorization to Use Military Force, which authorized the use of force against those responsible for the September 11, 2001, as a justification for striking ISIL. This comes despite a national security address at the US Military Academy in May 2013, when Obama said he wanted to repeal the 2001 AUMF.

At the NBOL workshop, Professor Nathan A. Sales of Syracuse University College of Law and Professor Jennifer Daskal of American University Washington College of Law debated the following motion: ‘This House believes that the 2001 AUMF should be amended to authorize force against future terrorist threats’.

They join a long list of scholars and experts who have called on the US administration to either amend, update, or repeal the 2001 AUMF and to clarify the basis for its action against ISIL and other terrorist groups that did not take part in the September 11th attacks – and in many cases did not even exist at the time of the attacks. See for instance Jens David Ohlin here, Deborah Pearlstein here, Peter Spiro here, Jack Goldsmith here, and Jennifer Daskal here.

While both Sales and Daskal expressed concerned with the current legal framework dealing with terrorist threats in the United States, their opinion differed as to the suitability of the AUMF to deal with emerging threats.

Nathan Sales, who argued in favour of the motion, first discussed three possible options for a new legal framework against terrorist groups: the first is a group specific AUMF which would name specific organizations against which the President is authorised to use force. The second is a general statutory framework that allows the President himself to designate groups against which to use force. The third option is the absence of statute and the reliance on the inherent authority of the President under Article II of the US Constitution.

Nathan Sales then pointed to the legal uncertainty of the 2001 AUMF, which would give insufficient authority to the President to use force against groups with no links to al Qaeda and generally stated that the 2001 AUMF is growing obsolete and should be replaced by a statute that would allow the President to designate future terrorist threats.

He based his argument on the idea that future United States presidents are likely to use military force to respond to future terrorist threats and that the use of military force should therefore be regulated through a legal framework. This legal framework would take the form of a flexible AUMF that would allow the President to designate groups as threats emerge. For Sales, the flexibility of designation should however be restrained by certain substantive and procedural criteria, including pre-designation consultation with Congress and some public notice. He suggested also that such a Statute could be tied to international law principles including the right of self-defence …

Click here to read the entire post.

Myriam Feinberg is a Post-Doctoral Fellow of the GlobalTrust Project, Tel Aviv University.

Does the Argument of “Fighting Terror” Legitimize US International Surveillance?

By William C. Banks

drone_crash(Cross-posted with Opera Mundi) There is no one-size-fits-all answer to the legal questions presented by US foreign intelligence surveillance activities. Instead, the relevant law draws upon international and domestic sources, civil liberties protections and statutory authorizations, and treaties and customary law. In the end, the domestic and international law scorecards are inconclusive. While there is positive law authority for much of the foreign intelligence collection that the US undertakes, domestic and international law limits exist and must be respected.

After President George W. Bush announced that the US was engaged in a “global war on terror” following the Sept. 11, 2001 attacks, it did not take long before critics at home and abroad complained that there was no legal basis for war against a tactic—terrorism—where no enemy is identified and no authority for military action that wholly fails to respect sovereign boundaries.

The president surely possessed domestic and international legal authority to repel the 9/11 attacks, however, and our Congress soon further enabled the Commander-in-Chief to use “all necessary and appropriate force” against those in any way associated with the attacks. Within a few years, our Supreme Court agreed that the president’s authority reached beyond the use of military force and extended to military detention of US citizens captured on an Afghan battlefield. The Court reasoned that detention operations are incident to the use of force. By implication, intelligence operations may be permitted by those same authorities.

The UN Security Council recognized soon after 9/11 that member states could exercise “the inherent right of individual or collective self defence” in taking military action against the Taliban and al Qaeda in Afghanistan, but the self-defense justifications for extended intelligence activities outside the Afghan battlespace remain controversial and legally unsettled.

Just as intelligence collection and detention operations may be viewed as incident to the use of military force in US law, extended intelligence activities may be part and parcel of fighting war or engaging in armed conflict abroad under international law. However, when the intelligence collection takes place in states or from persons far removed for active battlefields against the Taliban or al Qaeda and its affiliates, many states and human rights groups view the intelligence activities as unlawful.

According to the US, its self-defense authority extends to wherever its non-state enemies may be found. In states with functioning law enforcement and intelligence capabilities, and where cooperation with the US may serve shared counterterrorism objectives, the US’ unilateral insertion of intelligence collection of Internet or telecommunications traffic from those states may be viewed as violating state sovereignty.

In domestic law, most of what has been revealed about NSA activities was authorized by our Congress in the 2001 Patriot Act and in 2007 and 2008 amendments to the Foreign Intelligence Surveillance Act. Only the collection and possible use of metadata by NSA arguably stretches existing statutory authority. A larger lesson within the US is the need to involve the people and our elected representatives in an extended discussion of the tradeoffs we are willing to make between security and privacy/transparency.

The original article, translated into English, can be found here.

 

Remarks by William C. Banks at the 35th Anniversary of the FISC, May 20, 2013

DataCenterVirtually everyone in this room knows the basic story of how the Foreign Intelligence Surveillance Act (FISA) came about …

FISA was the product of a set of compromises unique to their time. The executive branch wanted a continuing discretion to employ wiretapping for foreign intelligence unfettered by judicial or congressional oversight. Because the Supreme Court’s Keith decision (United States vs. US District Court, 407 US 297 (1972)) concerned domestic security, the door was not shut. In addition, because Keith acknowledged a possibility that the rules might be different for foreign intelligence and the 1968 Crime Control Act disclaimed prescribing any rule for foreign intelligence gathering, it remained plausible to argue that the executive might make its own rules for collecting foreign intelligence.

[pullquoteright][M]ore Americans than ever are engaged in international communications, and there is far greater intelligence interest in communications to and from Americans. Both circumstances increase the likelihood that the government will be intercepting communications of innocent Americans, raising as many questions about the adequacy of FISA safeguards as they do about the adaptability of FISA architecture.”[/pullquoteright]Their hand was weakened considerably, however, by the effects of the Watergate scandal; lawsuits challenging warrantless surveillance; and the practical problem that telephone companies and government agencies were unwilling to approve electronic surveillance without a court order. There were, in addition, high profile investigations of illegal spying by intelligence agencies, including by the Senate Church Committee. The Church Committee reviewed nearly 40 years of domestic surveillance, learning that every president since Franklin D. Roosevelt had asserted and used the authority to authorize warrantless electronic surveillance and founding that “[t]oo many people have been spied upon by too many Government agencies and … Government has often undertaken the secret surveillance of citizens on the basis of their political beliefs, even when those beliefs posed no threat of violence or illegal acts on behalf of a hostile foreign power.” The Church Committee recommended a strict and careful separation of domestic and foreign intelligence gathering, although it recommended continued surveillance of “hostile foreign intelligence activity.”

Congress was thus emboldened to control executive overreaching in its use of surveillance. Civil liberties groups, such as ACLU, worried that if Congress set a wiretap standard too low, it could end up authorizing rather than curtailing intelligence agency excesses. In other words, would no legislation be better for civil liberties than bad legislation? At the same time, Congress recognized that “no United States citizen in the United States should be targeted for electronic surveillance by his government absent some showing that he at least may violate the laws of our society,” even though evidence of national security crimes could be collected during the electronic surveillance. After six years of hearings and discussion and through the stewardship of attorneys general Edward Levi and Griffin Bell, presidents Gerald Ford and Jimmy Carter, and several members of the House and Senate, FISA became law in 1978. In his signing statement, Carter said:

The act helps to solidify the relationship of trust between the American people and their Government. It provides a basis for the trust of the American people in the fact that the activities of their intelligence agencies are both effective and lawful. It provides enough secrecy to ensure that intelligence relating to national security can be securely required, while permitting review by the courts and Congress to safeguard the rights of Americans and others.

Beginning in 1978, the FISA authorized the means for electronic collection of foreign intelligence that served the nation well for many years. The basic idea was simple. Government may conduct electronic surveillance of Americans or others lawfully in the United States without traditional probable cause to believe that they had committed a crime if it could demonstrate to a special Article III court that it had a different kind of probable cause: reason to believe that targets of surveillance are acting on behalf of foreign powers. Over time, FISA was amended several times to extend its procedures to conduct physical searches, monitor suspected lone-wolf terrorists, and accommodate evolving threats.

[pullquoteright]If we must tolerate sweeping digital collection of our personal data, the FISC should have greater and more meaningful opportunities to oversee its collection—if not in advance, then after the fact.”[/pullquoteright]For a long time the process worked well as a mechanism to regulate surveillance of known intelligence targets. The FISA process and its eventual orders have always been limited, however. FISA was concerned with acquisition, not with the uses government might have for what is collected. FISA also assumed that officials know where the target is and what facilities the target will use for his communications. Knowing this much enabled the government to demonstrate the required probable cause to believe that the target was an agent of a foreign power or a lone wolf. Traditional FISA did not authorize intelligence collection for the purpose of identifying the targets of surveillance, or of collecting aggregate communications traffic and then identifying the surveillance target. In other words, FISA envisioned case-specific surveillance, not a generic surveillance operation, and its approval architecture was accordingly geared to specific, narrowly targeted applications. FISA was also based on the recognition that persons lawfully in the US have constitutional privacy and free expression rights that stand in the way of unfettered government surveillance.

Although the volume of FISA applications increased gradually through the 1990s, after the Sept. 11, 2001 terrorist attacks, the pace of electronic intelligence collection quickened, and Bush Administration officials argued that traditional FISA procedures interfere with necessary “speed and agility.” FISA applications doubled to more than 2,000 a few years after 9/11. The system was, it seemed, grinding along, but it was carrying a lot of weight.

Over the last decade-plus, critics argued that the patchwork-like architecture of FISA has become too rigid, complicated, and unforgiving to enable effective intelligence responses to crises. The computerization of communications that has so enriched our capabilities has also facilitated stealth and evasion by those seeking to avoid detection. Would-be targets of surveillance began communicating in ways that stress or evade the FISA system. Because of the pervasiveness of US telecom switching technology, collection inside the United States is now often the best or only way to acquire even foreign-to-foreign communications that were originally left unregulated by FISA.

Changing technologies have also turned the traditional sequence of FISA processes on its head. We discovered after 9/11 that investigators could enter transactional data about potential terrorists and come up with a list that included four of the hijackers—a sort of reverse of the typical FISA-supported investigation. Powerful computers and data-mining techniques permitted intelligence officials to select potential surveillance targets from electronic databases of previously unimaginable size. The wholesale quality of this expansive computer collection and data mining is incompatible with the retail scope of the original FISA process. Instead of building toward an individual FISA application by developing leads on individuals with some connection to an international terrorist organization, the government could develop algorithms that search thousands or even millions of collected e-mail messages and telephone calls for indications of suspicious activities.

At the same time, more Americans than ever are engaged in international communications, and there is far greater intelligence interest in communications to and from Americans. Both circumstances increase the likelihood that the government will be intercepting communications of innocent Americans, raising as many questions about the adequacy of FISA safeguards as they do about the adaptability of FISA architecture. This tension formed the context for a series of post-9/11 developments, culminating in the FISA Amendments Act of 2008 (FAA). The FAA codified, now until Dec. 31, 2015, a procedure to permit broad, programmatic surveillance focused on patterns of suspicious activities and not on a specific individual or the contents of their communications through changes in FISA that overcame the case-specific orientation of the original statute.

The FISA architecture was changed to accomplish this neat trick in a simple way. The definition of electronic surveillance was amended so as not to apply to surveillance of a person reasonably believed to be outside the US. Under the new legislation, the DNI and the attorney general were authorized to collect foreign intelligence “directed at” persons reasonably believed to be outside the US, without obtaining an order from the Foreign Intelligence Surveillance Court (FISC), even if one party to the communication was a US citizen inside the US. The predicate for collection thus became the location of the target, not his status in relation to a foreign power or terrorist organization.

Under the FAA, the role of the FISC is narrowly circumscribed. The attorney general submits procedures to the FISC by which the government will determine that acquisitions conducted under the program meet the program targeting objectives and satisfy traditional FISA minimization procedures. After a FISC judge approves the program targeting procedures, executive branch officials authorize the surveillance of persons reasonably believed to be outside the US and issue directives compelling communications carriers to assist.

From its beginnings, the overarching FISA question has been how to evaluate and weigh the basic values of security and individual liberties when electronic surveillance is used to collect foreign intelligence. The Constitution continues to provide a baseline. The Fourth Amendment Warrant Clause applies to electronic surveillance conducted for foreign intelligence purposes within the US if the surveillance involves US persons who do not have a connection to a foreign power. FISA now permits such electronic surveillance as the inevitable byproduct of surveillance of unprotected targets, but the Act does little to insulate US persons from the effects of the surveillance. If the combination of terrorism threats and computerization demands a more nimble capacity to conduct suspicion-less electronic surveillance to combat terrorism, the discretion that is necessarily part of that system should be carefully controlled, either at the point of collection or when the information is maintained or used by the government.

Programmatic surveillance adds considerably to FISA’s complexity, and it has already produced implementation problems. For example, with the revolution in digital communications, the idea of a geographic border has become an increasingly less viable marker for legal authorities and their limits. Using the Internet, packets of data that constitute messages travel in disparate ways through networks, many of which come through or end up in the US. Those packets, and countless Skype calls and instant messages, originate from the US in growing numbers, and the sender may be in the US or abroad. Likewise, it may or may not be possible to identify the sender or recipient by the e-mail addresses or phone numbers used to communicate.

Nor do we think of our international communications as being in any way less private than our domestic calls. In 1978, Congress apparently exempted from FISA international surveillance conducted abroad because, when FISA was enacted, electronic communications by Americans did not typically cross offshore or international wires. Now, of course, we do communicate internationally and our message packets may travel a long distance, even if we are corresponding by e-mail with a friend in the US who is in the same city. The location or identity of the communicants is simply not a useful marker in Internet communications.

Conclusions

The FISC remains an especially successful court. It was created to do a job that traditional Article III judges were reluctant to do and that the executive branch preferred be left to them. At the same time, the FISC was created at a time when surveillance abuses cast a shadow over the integrity of these important foreign-intelligence activities. In the years between creation of the court and the 9/11 attacks, the FISC developed expertise in foreign intelligence surveillance and the court gained considerable respect from observers inside and outside government.

The combination of the criminalization of many terrorist activities and the digital revolution in communications and surveillance capabilities altered the role of the FISC and, following the 2008 amendments to FISA, strained its utility as an independent arbiter of lawful FISA surveillance. The programmatic surveillance now sanctioned by the FISC is a cause for concern because the special court has assumed more of an administrative function than a judicial role. There remain opportunities to revise minimization rules and to make government retention or dissemination of private information about innocent persons less likely. At the same time, if we must tolerate sweeping digital collection of our personal data, the FISC should have greater and more meaningful opportunities to oversee its collection—if not in advance, then after the fact.

In our legal system, we attach great importance to the value of fair processes. In national security law and policy, when secrecy has been an important operational requisite, we have developed review and oversight processes to help assure that unilateral power is not abused. So has it been with FISA. In the years since 9/11, those process safeguards have been compromised. If FISA is to have a meaningful role for the next 35 years, the role of the FISC as overseer of the system will have to be restored, one way or the other.

ENDNOTE: The Celebration of the 35th Anniversary of the US Foreign Intelligence Surveillance Court was sponsored by the American Bar Association Standing Committee on Law and National Security, Georgetown Law; the Center on National Security Law, University of Virginia School of Law; and the Institute for National Security and Counterterrorism.