12. COUNTERTERRORISM AND NATIONAL SECURITY

0.    This account is taken from the video of The Daily Show, “Good News! You’re Not Paranoid,” Comedy Central, June 10, 2013, http://thedailyshow.cc.com/videos/cthyr1/good-news—you-re-not-paranoid—nsa-oversight.

0.    See Ron Wyden, “DNI Clapper Tells Wyden the NSA Does Not Collect Data on Millions of Americans,” YouTube, www.youtube.com/watch?v=QwiUVUJmGjs&feature=youtu.be&t=6m9s; letter from James R. Clapper, Dir. Nat’l Intelligence, to Senator Diane Feinstein, Chairwoman, Senate Comm. on Intelligence, Jun 21, 2013, www.dni.gov/files/documents/2013-06-21%20DNI%20Ltr%20to%20Sen.%20Feinstein.pdf (quoting Senator Wyden’s question and Director Clapper’s answer).

0.    Glenn Greenwald, “NSA Collecting Phone Records of Millions of Verizon Customers Daily,” The Guardian, June 6, 2013, www.theguardian.com/world/2013/jun/06/nsa-phone-records-verizon-court-order; Barton Gellman and Laura Poitras, “U.S., British Intelligence Mining Data from Nine U.S. Internet Companies in Broad Secret Program,” Wash. Post, June 7, 2013, www.washingtonpost.com/investigations/us-intelligence-mining-data-from-nine-us-internet-companies-in-broad-secret-program/2013/06/06/3a0c0da8-cebf-11e2-8845-d970ccb04497_story.html.; Glenn Greenwald and Ewen MacAskill, “NSA Prism Program Taps in to User Data of Apple, Google and Others,” The Guardian, June 7, 2013, www.theguardian.com/world/2013/jun/06/us-tech-giants-nsa-data; Paul Szoldra, “SNOWDEN: Here’s Everything We’ve Learned in One Year of Unprecedented Top-Secret Leaks,” Bus. Insider, June 7, 2014, www.businessinsider.com/snowden-leaks-timeline-2014-6 (describing the leaks of these programs). Muscular “infiltrates and copies data flowing out of Yahoo and Google’s overseas data centers”; EvilOlive “collects and stores large quantities of Americans’ internet metadata”; and Royal Concierge “monitored the booking systems of 350 high-end hotels.” HappyFoot monitors applications that “transmit their locations to Google and other Internet companies … to [discover] a mobile device’s precise physical location.” Ashkan Soltani, “NSA uses Google cookies to pinpoint targets for hacking,” Wash. Post, Dec. 10, 2013, www.washingtonpost.com/news/the-switch/wp/2013/12/10/nsa-uses-google-cookies-to-pinpoint-targets-for-hacking/. On Snowden, see, for example, Mirren Gidda, “Edward Snowden and the NSA Files—Timeline,” The Guardian, Aug. 21, 2013, www.theguardian.com/world/2013/jun/23/edward-snowden-nsa-files-timeline.

0.    See Janet Reitman, “Q&A: Senator Ron Wyden on NSA Surveillance and Government Transparency,” Rolling Stone, Aug. 15, 2013, www.rollingstone.com/politics/news/q-a-senator-ron-wyden-on-nsa-surveillance-and-government-transparency-20130815 (interviewing Senator Wyden about his thoughts on NSA surveillance); Zoe Carpenter, “Can Congress Oversee the NSA?,” The Nation, Jan. 30, 2014, 1:19 p.m. ET, www.thenation.com/article/can-congress-oversee-nsa/ (quoting Senator Wyden in describing how difficult it will be to fix the “culture of misinformation” surrounding NSA programs); 157 Cong Rec. S3386 (daily ed. May 26, 2011) (statement of Sen. Wyden) (hereinafter Wyden Statement).

0.    Reitman, supra note 4 (“fundamentally inconsistent”); Wyden Statement supra note 4, at S3388.

0.    Lecture of Senator Wyden at First Congressional Church, Portland, Oregon, March 18, 2014, at 15, www.scribd.com/doc/213525546/Wyden-Speech-at-Wayne-Morse-Legacy-Series.

0.    Gregory Moore, “A History of U.S. Intelligence,” in Homeland Security and Intelligence, ed. Keith Gregory Logan (2010), 5, 10, 13.

0.    See The National Security Agency and Fourth Amendment Rights: Hearing on S.R. 21 Before the S. Select Comm. to Study Governmental Operations with Respect to Intelligence Activities, 94th Cong. (1975), 6 (explaining how the United States “intercepted … analyzed, and … decoded” foreign communications to produce intelligence during the Revolutionary War, used wire telegrams to send foreign communications during the Civil War and World War I, and relied on decoding radio messages during World War II); President Barack Obama, “Remarks by the President on Review of Signals Intelligence,” January 17, 2014, www.whitehouse.gov/the-press-office/2014/01/17/remarks-president-review-signals-intelligence (describing “Union balloon reconnaissance” in the Civil War and “code-breakers” in World War II).

0.    James B. Bruce, “The Missing Link: The Analyst-Collector Relationship,” in Analyzing Intelligence: Origins, Obstacles, and Innovations, eds. Roger Z. George and James B. Bruce (2008), 19 (explaining the “signal-to-noise ratio” problem causing intelligence failure in Pearl Harbor); National Commission on Terrorist Attacks upon the United States, The 9/11 Commission Report (2004), 255–63 (detailing intelligence known to the government in 2001) (hereinafter 9/11 Commission Report); S. Rep No. 108-301 at 14–35 (2004) (discussing the sources of intelligence failures leading up to the war in Iraq).

0.  Seymour M. Hersh, “Huge C.I.A. Operation Reported in U.S. Against Antiwar Forces, Other Dissidents in Nixon Years,” N.Y. Times, Dec. 22, 1974, http://s3.documentcloud.org/documents/238963/huge-c-i-a-operation-reported-in-u-s-against.pdf.

0.  Intelligence Activities and the Rights of Americans: Final Report of the Select Committee to Study Governmental Operations with Respect to Intelligence Activities, S. Rep. No. 94-755, at 4–20, 100–102, 167, 170, 172, 174–75, 180–82 (2d Sess. 1976), www.intelligence.senate.gov/sites/default/files/94755_II.pdf (hereinafter Church Committee Report).

0.  Id. at 14, 177 (witness, head of FBI Intelligence Division); Frederick A. O. Schwarz, Jr., “The Church Committee and a New Era of Intelligence Oversight,” Intel. & Nat’l. Sec. 22 (2007): 277 (Phillip Hart).

0.  Church Committee Report, supra note 11, at 20; Schwarz, Jr., “The Church Committee,” supra note 12, at 291–92. (“natural tendency of Government,” “secrecy has been extended”).

0.  “The Church Committee,” supra note 12, at 279–88 (discussing the evolution of wiretapping policy in subsequent presidential administrations, including proposed bills that ultimately did not pass related to restrictions on wiretapping under President Roosevelt and President Eisenhower).

0.  United States v. U.S. District Court (Keith), 407 U.S. 297 (1972).

0.  Christopher Zbrozek, “The Bombing of the A2 CIA Office,” Mich. Daily, Oct. 24, 2006, www.michigandaily.com/content/bombing-a2-cia-office; “Ten Most Wanted Fugitives” Program Frequently Asked Questions, FBI, www.fbi.gov/wanted/topten/ten-most-wanted-fugitives-faq; Keith, 407 U.S. at 300–301.

0.  Keith, 407 U.S. at 300–301; Peter P. Swire, “The System of Foreign Intelligence Surveillance Law,” Geo. Wash. L. Rev. 72 (2004): 1314.

0.  Keith, 407 U.S. at 299, 308–309, 317 (discussing the president’s surveillance powers with respect to suspected activities of foreign powers and noting that it “may well be that, in the instant case, the Government’s surveillance of Plamondon’s conversations was a reasonable one which readily would have gained prior judicial approval”).

0.  Id. at 318–19 (“We are told further that these surveillances are directed primarily to the collecting and maintaining of intelligence with respect to subversive forces, and are not an attempt to gather evidence for specific criminal prosecutions.”); Administration White Paper: Bulk Collection of Telephony Metadata under Section 215 of the USA PATRIOT Act (2013), 12, www.eff.org/files/filenode/section215.pdf (characterizing the government’s bulk metadata collection programs as “preventing threats to national security” as opposed to civil or criminal investigations).

0.  Id. at 320.

0.  Id. at 315–16.

0.  Id. at 321–23; (“Given those potential distinctions between Title III criminal surveillances and those involving the domestic security, Congress may wish to consider protective standards for the latter which differ from those already prescribed for specified crimes in Title III … It may be that Congress, for example, would judge that the application and affidavit showing probable cause need not follow the exact requirements of § 2518 but should allege other circumstances more appropriate to domestic security cases.…”).

0.  ACLU v. Clapper, 785 F.3d 787, 793 (2d Cir. 2015), staying mandate, 2015 WL 4196833, lifting stay, 804 F.3d 617 (explaining the role Keith and the Church Commission played in the genesis of FISA); 50 U.S.C. §§ 1801(b), 1803(a) (2012); see also Legal Standards for the Intelligence Community in Conducting Electronic Surveillance, Federation of American Scientists, http://fas.org/irp/nsa/standards.html (2000) (explaining the requirements for electronic surveillance under FISA).

0.  Daniel J. Solove, “Reconstructing Electronic Surveillance Law,” Geo. Wash. L. Rev. 72 (2004): 1716 (“The [USA Patriot] Act was … actually a DOJ wish list from before September 11.”)

0.  David S. Kris, “The Rise and Fall of the FISA Wall” Stan. L. & Pol’y Rev. 17 (2006): 501–508 (discussing “judicial concerns on the FISA surveillance of any target who had not been a Title III target (or whose Title III surveillance was not strongly supported) on the theory that the government had resorted to FISA because it could not satisfy the requirements of Title III”). The Department of Justice worked out guidelines that did permit information sharing when intelligence agents had some reason to believe that significant federal crimes had been, were being, or may have been committed, subject to approval by the Office of Intelligence Policy and Review. Id.

0.  Stewart A. Baker, Skating on Stilts: Why We Aren’t Stopping Tomorrow’s Terrorism, 66–69, 74–75 (2010) (FBI); 9/11 Commission Report, supra note 9, at 158, 181–82, 239 (CIA).

0.  50 U.S.C. § 1804(a)(6)(B) (requiring “that a significant purpose of the surveillance is to obtain foreign intelligence information”); Kris, supra note 25, at 508–509 (quoting 50 U.S.C. §§ 1806[k], 1825[k]) (providing that “‘[f]ederal officers’ who conduct electronic surveillance or physical searches ‘to acquire foreign intelligence information’ ‘may consult with Federal law enforcement officers to coordinate efforts to investigate or protect against’ the threats to national security specified in the definition of ‘foreign intelligence information.’”).

0.  In re Sealed Case, 310 F.3d 717, 735, 746 (FISA Ct. Rev. 2002).

0.  Id. at 737–42.

0.  Ryan Lizza, “State of Deception,” New Yorker, Dec. 16, 2013, at 48, 53 (Total Information Awareness); Shane Harris, The Watchers: The Rise of America’s Surveillance State (2010), 27–28 (Reagan’s National Security Advisor); 9/11 Commission Report, supra note 9, at 99 (Iran-Contra); William Safire, “You Are a Suspect,” N.Y. Times, Nov. 14, 2002 (Information Awareness Office).

0.  See Gina Marie Stevens, Cong. Research Serv., RL31730, Privacy: Total Information Awareness Programs and Related Information Access, Collection, and Protection Laws (2010), 2–3, http://fas.org/irp/crs/RL31730.pdf; Harris, The Watchers, supra note 30, at 146–48.

0.  Safire, “You Are a Suspect,” supra note 30; “Total Information Awareness,” Wash. Post, Nov. 16, 2002, at A20; see also Baker, Skating on Stilts, supra note 26, at 191–92; Stevens, Privacy, supra note 31, at 2.

0.  Carl Hulse, “Congress Shuts Pentagon Unit Over Privacy,” N.Y. Times, Sept. 26, 2003 (describing termination of TIA program); Nicole Perlroth and John Markoff, “N.S.A. May Have Hit Internet Companies at a Weak Spot,” N.Y. Times, Nov. 25, 2013, www.nytimes.com/2013/11/26/technology/a-peephole-for-the-nsa.html (explaining similarity of NSA program to the canceled TIA plan); Nomination of General Michael V. Hayden, USAF to be Director of the Central Intelligence Agency: Hearing Before the S. Select Comm. on Intelligence, 109th Cong. (2006), 88 (“frankly played a bit back from the line”); “Fareed Zakaria GPS: Beyond the Manhunts: How to Stop Terror” (CNN television broadcast, May 24, 2013), http://edition.cnn.com/TRANSCRIPTS/1305/24/fzgps.01.html (“[W]e’re going to play inside the foul lines, but there’s going to be chalk dust on our cleats.”).

0.  Lizza, “State of Deception,” supra note 30, at 51–52 (“Hayden noted the limitations of the FISA law, which prevented the N.S.A. from indiscriminately collecting electronic communications of Americans.”).

0.  Id.