A Midterm Review of Exponentially Expanded Drone Intervention and Privacy Attacks
The Telescreen received and transmitted simultaneously. Any sound that Winston made, above the level of a very low whisper, would be picked up by it; moreover, so long as he remained within the field of vision which the metal plaque commanded, he could be seen as well as heard. . . . You had to live—did live, from habit that became instinct—in the assumption that every sound you made was overheard, and, except in darkness, every moment scrutinized.*
—GEORGE ORWELL, 1984
The Drone Wars: Unmanned Aerial Vehicles and the Right to Life Under the Obama Administration
Many people lay the blame at Bush’s feet for beginning weaponized drone warfare, but in reality it was President Clinton who began the U.S. weaponized drone program.1 After an aerial drone spotted bin Laden in October 2000, President Clinton was frustrated that he could not simply push a button to end the life of the man who had sullied his foreign policy and national security records. President Clinton “gave orders to create an armed drone force.”2 That program came to fruition under President Bush when on June 18th 2004, the first weaponized drone struck in Waziristan. Up until September 4th 2001, the Department of Defense and CIA were still reluctant to utilize these creepy super-weapons, even to kill bin Laden.3 After September 11th, that all changed for the Pentagon and the CIA, and like the render and torture program, something which began under Clinton and expanded under Bush, would exponentially increase in power under the Obama administration.
Prior to President Clinton, President Reagan had reiterated President Gerald Ford’s and President Jimmy Carter’s ban on assassinations in Executive Order 12333.4* This order, very plainly, proscribed assassination, an undefined term. After the Khobar Towers bombing in 1996, discussed in chapter 10, Clinton issued a Presidential Finding, or Memorandum of Notification, modifying the order proscribing assassinations.5 It now included an exception when capture was infeasible and for specific people, which, of course, included bin Laden and his captains.6 After 9/11, the Bush administration amended Clinton’s Finding to remove the restrictive list of names and non-feasibility-of-capture requirement.7 After that, the assassin machines known as weaponized drones grew into Obama’s favorite war machine. Of course, because of the definitional flexibility, drone operations later would be classified not as assassinations but as “targeted strikes.”
Despite the Pentagon and CIA’s love for drones, Bush himself was reluctant to use the weapons.8 Conversely, Bush’s successor would not have the same distaste for assassinations: “Obama had already authorized as many drone strikes in [his first] ten months [in office] as Bush had in his entire eight years in office.”9 At this writing, Obama has authorized almost seven times as many: About 320 strikes to Bush’s 52, killing more than three thousand people.10 Around 2 percent of those killed were high-level terrorist targets11—hardly a sufficient number of military targets to justify the attacks under international and domestic law conceptions of military proportionality in civilian-soldier death ratios.
The drones have been effective in their purpose, serving as killing-spying machines, but have engendered virulent hatred against the United States and continue to cause “mass trauma among civilians,” which means constant “fear of attack, severe anxiety, powerlessness, insomnia and high levels of stress.”12* Essentially, World War I shell shock has been visited on the Waziristanis/Pakistanis, Yemenis, and any other zone where the U.S. drone program haunts the skies. And what is the result? In Afghanistan, Pakistan, and Yemen, our drones’ “reign of terror” has infuriated local populations and “proven vastly more effective than al Qaida in turning Muslims against the United States.”13 “The result was to guarantee an ever mounting desire for revenge.”14
The use of these weapons, as general war machines, lacks substantial or set guidelines from the U.S. military hierarchy. President Obama, when facing reelection and the (short-lived) prospect of a loss to Republican Mitt Romney, scrambled to create guidelines for their use by future presidents.15 However, since he won reelection, this effort has fallen by the wayside, seeing as how Obama’s non-transparent, ex camera discretion is no doubt, to him, the equivalent of formal, published guidelines.
Moreover, as the U.S. government pushes forth with proxy and drone wars throughout the globe, the president has claimed a new and awesome power. President Obama claimed the unnatural and unconstitutional right to decide unilaterally which Americans shall die. What was the basis for this power? No one knew before March 2013; it was a state secret hidden away as an ominous Justice Department “White Paper.”
Using his fleet of drones, Obama killed four U.S. citizens between 2011 and 2013: Anwar al-Aulaqi, Samir Khan, Abdulrahman al-Aulaqi, and Jude Mohammed—only one of which he claims to have done intentionally. Anwar al-Aulaqi and Samir Khan were killed together following several attempts on al-Aulaqi’s life. A few weeks later, al-Aulaqi’s teenage son, Abdulrahman, was struck supposedly unintentionally. Jude Mohammed, one of the new wave of ex-patriot jihadists, was killed in a drone strike. Of these four, Obama has only admitted to targeting Anwar al-Aulaqi directly, relegating the rest to collateral damage. Thus, this section focuses mostly on the Anwar al-Aulaqi case.
Anwar al-Aulaqi was an “all-American boy.”16 He was born in New Mexico to proud parents who raised him in America until he was nine years old and then in Yemen as a moderate American Muslim.17 “In 1991, he returned to the United States [from Yemen], where he earned a bachelor’s degree at Colorado State University, wed a Yemeni cousin, and later received a master’s degree in Educational Leadership from San Diego State University.”18 After 9/11 he became an American media star, “called upon by scores of media outlets to represent a ‘moderate’ Muslim view of the 9/11 attacks,” even addressing a Pentagon luncheon.19 Before he went to Yemen he had no U.S. criminal charges besides two patronizing prostitution complaints (which it is speculated were setups) and weak allegations of ties to 9/11 that the FBI dismissed.20
However, when the post-9/11 war hysteria came, “the crackdowns on Muslims and the wars abroad in Muslim countries” drove al-Aulaqi to leave for England in 2002.21 Specifically, he was personally being stalked and interrogated by the FBI over his possible involvement in 9/11.22 He left London for Yemen permanently in 2003, meeting up with his uncle Saleh bin Fareed.23 With no publicly revealed evidence of criminal behavior, the United States branded him a terrorist in 2010 and began its CIA assassination plans.24
The CIA went through all manner of plans to kill Anwar al-Aulaqi, stretching from drones to the absurd. One plan to kill him used a Danish double agent who had his trust. That agent was supposed to set him up with a Croatian wife whose luggage would be bugged with a tracer and then blown up by drone missiles.25 That plot failed, but “the United States got its man when, on September 30, 2011, a drone fired a ‘barrage of Hellfire missiles’ at his car.”26
His car also carried Samir Khan, a “proud” traitor from Queens and fellow ex-patriot jihadist who was killed as collateral damage in that strike.27 Khan was an incredibly popular, teenage, radical Islamic jihadist blogger by 2005.28 He was subjected to FBI surveillance and eventually left the United States to join AQAP, lying to his parents about attending a university in Yemen.29 Khan became editor of the AQAP publication Inspire and worked mostly as an online facilitator and translator.30
A few weeks after the missiles took out Anwar and Samir, the third American citizen was killed. Abdulrahman al-Aulaqi, Anwar’s sixteen-year-old son, was killed in Yemen.31 He had sneaked out of his safe home in northern Yemen for the purpose of “see[ing] his father.”32 “When Obama was briefed on Awlaki’s location in Jawf and was told that children were in the home, he was explicit that he did not want any options ruled out.”33 Anwar was killed before Abdulrahman was able to see him.34 Shortly after his father’s death, Abdulrahman went out with some cousins to join other families barbecuing outdoors. There he was “cut up to pieces” and killed by a drone.35 The victims of that strike were buried in a single grave. Why? “[T]hey were blown up to pieces by the drone . . . [such that] they could not [sort] them into separate graves.”36 “The people who were there could recognize only the back of Abdulrahman’s hair.”37 After initially feigning ignorance, the government accepted responsibility for Abdulrahman’s murder.38
The fourth and final citizen, twenty-three-year-old Jude Mohammed from Raleigh, North Carolina, was wanted by the FBI for his jihadist activities and was “killed with about 12 other insurgents in what the C.I.A. calls a ‘signature strike’ ” in May 2013.39
The Targeting “Due” Process: CIA Adjudication
How exactly did Obama arrive at the conclusion he could kill these Americans, including a child? It certainly wasn’t done in compliance with a trial court decision or some similar operation of law. Tara McKelvey wrote an article on the process for Newsweek in 2011 entitled, “Inside the Killing Machine.”40 Relying on that work, a law student summarized the process succinctly:
An individual must meet the CIA’s legal standard in order to be classified as a terrorist that is subject to targeted killing. Pursuant to a secret fifty-page Department of Justice white paper outlining the terrorist classification process, approximately ten CIA Counterterrorism Center attorneys receive a “ ‘two page document,’ along with ‘an appendix with supporting information, if anybody want[s] to read all of it.’ ” The attorneys then prepare a “cable” that “often run[s] up to five pages.” Senior attorneys will review the cable for errors, such as if “ ‘the justification [in approving a person for lethal operation] would be that the person was thought to be at a meeting [but was not].’ ” The cable is then sent to the CIA’s General Counsel, who approves it. At any given time, there are about thirty individuals approved for targeting.41
President Obama himself approves the final orders to kill.42
The issues are multifold and relate to basic, elementary Fifth Amendment rights. First, no one outside the administration knows what this White Paper says in full, so no one can legitimately argue the standard by which targets are to be judged. Second, there is so little attention paid to the adjudication of guilt before the assignment of a death sentence—the process described here isn’t even a tenth of what is due for the average capital offense trial. Third, there are no adversarial lawyers or notice in this system: The bomb is the notice.
The DOJ White Paper and State Secrets: The McMahon Betrayal
Obviously, organizations like the ACLU and the Center for Constitutional Rights (CCR) were up in arms about this issue. They had to litigate to get this “power” declared extra-constitutional. However, they didn’t even know over what they were suing: The legal justification itself, the infamous DOJ White Paper, was classified. In New York Times Co. v. U.S. Dep’t of Justice, the ACLU, CCR, and New York Times sued when their Freedom of Information Act request for the justification was denied.43
U.S. District Court Judge Colleen McMahon of the Southern District of New York wrote one of the most interesting and honest opinions of our time:
However, this Court is constrained by law, and under the law, I can only conclude that the Government has not violated FOIA by refusing to turn over the documents sought in the FOIA requests, and so cannot be compelled by this court of law to explain in detail the reasons why its actions do not violate the Constitution and laws of the United States. The Alice–in–Wonderland nature of this pronouncement is not lost on me; but after careful and extensive consideration, I find myself stuck in a paradoxical situation in which I cannot solve a problem because of contradictory constraints and rules—a veritable Catch-22. I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for its conclusion a secret. But under the law as I understand it to have developed, the Government’s motion for summary judgment must be granted, and the cross-motions by the ACLU and the Times denied.44
The ACLU and the New York Times argued that the government had disclosed so much information about the process that the White Paper described, it had waived the benefit of classified status.45 The court, while recognizing that there was some merit to the argument, turned it down because the government spoke about the justification in broad generalities, one of the tenets of the classified data waiver test.46
Then the government rebuffed and publicly humiliated the judge who had just given them a gift. One month after the Times opinion, the government declassified a redacted version of it and leaked that version to NBC News: It was too sensitive to share with a federal judge in secret, but politically potent enough to share with friends in the media. Other courts chimed in after the release of the redacted version of the White Paper, ordering it to be declassified.47 To this day, the full memo remains classified, as the Obama administration has yet to comply with the declassification orders.
Anwar al-Aulaqi’s father, Nasser al-Aulaqi, sued to enjoin the federal government from lethally targeting his son before Anwar was killed. In al-Aulaqi v. Obama, the judge dismissed the case on standing grounds, issuing no real decision on the merits.48 After their son was murdered, Nasser and Samir Khan’s family refiled under al-Aulaqi v. Panetta, which at the time of this writing is pending disposition.
Judge Bates Dismisses the Case
In dismissing the case, U.S. District Court Judge John Bates issued two holdings. First, that Nasser al-Aulaqi lacked standing to sue because he wasn’t Anwar or a properly interested third party.49 Second, that the case presented a non-justiciable “political question,”50 a doctrine under which the judiciary may decline to issue a ruling on the merits of a politically charged legal question where it prefers not to rule one way or the other.
The first holding makes sense and likely will be remedied in the ongoing Panetta legislation. However, the second holding, referencing that “courts are functionally ill-equipped to make the types of complex policy judgments that would be required to adjudicate the merits of plaintiff’s claims,” shows the aversion of judges to standing between the political branches during wartime.51 Think about it: A father asks a court to prevent the president from killing the father’s uncharged, untried, unconvicted, non-violent son, and an American federal judge who took an oath to uphold the Constitution declines to hear the case. How far we have come after these Bush-Obama years from even a hopeful expectation of rudimentary due process.
Wrongly Decided: The Due Process Clause and the Treason Clause
Judge Bates’s second ruling is seriously inconsistent with the Constitution. While the courts have a common law doctrine to avoid hearing cases that challenge their equality with the other two branches and avoid some cases they shouldn’t hear, the political question doctrine cannot be used as a shield against courts failing to discharge their constitutional obligations pursuant to Article III before patently unlawful, irreversible, and lethal action is taken by the government.
The Fifth Amendment to the Constitution provides that “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger . . . nor be deprived of life, liberty, or property, without due process of law.”52 The Supreme Court in Baldwin v. New York expressly set the only acceptable process of law for capital federal offenses: Full trial.53 Al-Aulaqi never even had a violent offense on his U.S. record,54 but the president decided that he should die. That is not due process under the substantial (fairness) or the procedural (a jury decides facts) requirements of the Fifth Amendment.
Moreover, people in al-Aulaqi’s position—that is, the government is essentially accusing them of treason—have even more protections. In Article III of the Constitution, the Founding Fathers ensconced a protection against this: “If nothing else, the Treason Clause—and its specific allocation of the responsibility for resolving treason cases to every branch other than the Executive—means that the President, and those who serve at his pleasure, should not act as prosecutor, defense counsel, judge, jury, and executioner, especially in secret.”55
The simple appearance of the Treason Clause within the Article concerning the judiciary and not the president makes abundantly clear that the president and military and intelligence community may not adjudicate treason cases. Taking it a step further, that means the CIA can’t then determine a citizen is levying war against his country (jihad) and then execute him without due process. It is unconstitutional on the face of the Fifth Amendment and Article III, and it is murder.*
Addressing a crowd at Northwestern University School of Law, Attorney General Eric Holder gave an astoundingly inarticulate retort to critics of the executive removing the judiciary from the killing selection process: “Some have argued that the President is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al Qaeda or associated forces. This is simply not accurate. ‘Due process’ and ‘judicial process’ are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.”56
Mr. Holder should take note of Article III of the Constitution, guaranteeing that anyone who levies war against his country, like an al Qaeda jihadist, can be ruled a traitor only by a federal court. Moreover, the Fifth Amendment would demand a full trial, not agency review.
Holder’s speech did have one bit of solace for due process. Within the executive, the alleged terrorist would receive the legal equivalent of due process: The accused would be killed only “after a thorough and careful review.” President Obama himself is the final arbiter of these decisions. This is such hogwash, it is astounding that the speaker is the federal attorney general.
While the jurisprudence of targeted killing is far from settled—one district court opinion not on point with another pending is hardly a body of law—the precedent set is rather dangerous. Does a president who murders care about privacy?
Drones aren’t weapons solely for the use of the federal government against the enemies of the state; they are coming into everyday American neighborhoods and cities. Congress passed and President Obama signed into law the FAA Modernization and Reform Act of 2012.57 The Act commanded that the secretary of transportation “develop a comprehensive plan to . . . accelerate [safely] the integration of civil unmanned aircraft systems into the national airspace system.”58 This has the effect of requiring “the FAA to expedite the process of authorizing both public and private use of drones in the national navigable airspace.”59 Pursuant to that Act, the FAA began issuing Certificates of Authorization to certify agencies and individuals who may operate drones in U.S. airspace.60 The FBI and several local law enforcement agencies have been issued certificates to use drones for domestic criminal operations.61
It is important to note that a drone is not simply a Reaper or a Predator drone, although the most commonly associated image of a drone is of the large, windowless airplane as either of those types appears. The current consumer choices in drones span “many shapes and sizes, ranging from as large as a commercial airplane to as small as a hummingbird, and many cost less than a helicopter.”62 In fact, some “drones’ small size and light weight enable them to fit in the trunk of a car, and many are designed to be hand-launched by one person.”63
Moreover, drones provide a broad array of spying tools to the domestic consumer: “[T]hey can be equipped with still and video cameras, infrared cameras, heat sensors, and radar. Drones can also carry tear gas or weapons. In addition to conducting visual surveillance, drones have the electronic surveillance capability of using sophisticated instruments to measure infrared radiation emanating from houses, eavesdrop on cell-phone conversations and text messages by impersonating cell-phone towers, and spy on Wi-Fi networks through automated password cracking.”64
Additionally, “stealth technology enables drones to hover above us, silently monitoring everything we do in areas exposed to the sky.”65
Thus, when discussing drone technology, the reader ought to realize that the shock-and-awe sorts of weaponized drones used against foreign targets are not necessarily the same ones that will be used here in America. The presence of those weapons is much more detectable than the hummingbird-sized, FBI-owned ones which will be floating over neighborhoods and peeking into windows, or checking for speeders on highways—a much more invidious and clandestine circumstance. Making this picture even bleaker, the “ ‘government has predicted that as many as 30,000 drones will be flying over U.S. skies by the end of the [present] decade.’ ”66
Local law enforcement agencies have already begun to push the envelope: “The Montgomery County Sheriff’s Office in Texas has even considered arming a drone with rubber bullets and tear gas.”67 Imagine that: A peaceful protest broken up by a fleet of drones firing rubber bullets and tear gas. It reads like something right out of 1984—the only thing Orwell got wrong was that the Telescreen needed to be installed in the room for the government to control everything: Its agents could just turn on any computer camera without an indicator light.* President Obama and Congress signed an order expediting the process of letting law enforcement use this new, and often dangerous, technology, despite the fact that “[w]here aviation was in 1925, that’s where we are today with unmanned aerial vehicles.”68
The Right to Privacy: PRISM, FISA, and the Snowden Controversy
As a senator, Barack Obama was opposed to NSA terrorist surveillance programs unless authorized by the FISA Court, which he believed to have exclusive jurisdiction over foreign intelligence warrants.69 As a president, he would give full-throated endorsement to Bush’s police state–like domestic spying programs, picking up the torch of PRISM and using the Justice Department to continue litigation aimed at diminishing the advances made by district courts against the PATRIOT Act during the Bush years.
Hopelessly Without Change: Reauthorization and Expansion of the Worst Acts
President Obama, who championed transparency and ending the exigencies of the Bush era, ended up signing Bush’s signature piece of legislation back into law until 2015: The PATRIOT Act.70 What about the FISA Amendments Act? Reauthorized until 2017.71 The Protect America Act? It became part of the FISA Amendments Act so that will be around until 2017 as well. Obama picked up right where Bush’s pen left off, signing the same bills for more years. Since 2010, Obama’s NSA has been cataloguing Americans’ social networks, “exploiting its huge collections of data to create sophisticated graphs of . . . Americans’ social connections that can identify their associates, their locations at certain times, their traveling companions and other personal information . . . ‘without having to check foreignness.’ ”72
The Espionage Act of 1917: Reportergate, Edward Snowden, and PRISM
In the name of national security, more than any predecessor, Obama has fortified the Espionage Act of 1917 as a tool for domestic and political spying in contravention of constitutional constraints on the executive. As of May 2013, the Obama Justice Department had “used the Espionage Act of 1917 six times to bring cases against government officials for leaks to the media six times—twice as many as all their predecessors combined.”73 By June, that number had climbed to eight:
NSA whistleblower Thomas Drake was charged under the law in April 2010 for retaining classified information on secret surveillance programs. The government claimed it was for the purpose of disclosure.
For disclosing classified information on FBI wiretaps to a blogger, FBI translator named Shamai Leibowitz was charged under the Espionage Act.
Pfc. Bradley Manning was charged with multiple violations of the Espionage Act in July 2010 after disclosing US government information to WikiLeaks.
Stephen Kim, a former State Department contractor, was charged in August 2010 for revealing classified information on North Korea to Fox News reporter James Rosen. (Rosen was labeled an “aider, abettor and co-conspirator” in the leak.)
In December 2010, a former CIA officer, Jeffrey Sterling, was charged under the Espionage Act after he communicated with New York Times reporter James Risen about Iran’s nuclear program in the 1990s. (The Obama Justice Department has fought in the courts to have a judge require Risen to testify against Sterling.)
John Kiriakou, a former CIA officer, was charged under the Espionage Act in January 2012 after he shared information related to a rendition operation with reporter Matthew Cole.74
The eighth is Edward Snowden.
The Obama administration went a bridge too far when it began hunting down media leaks by hacking into a reporter’s e-mail accounts. When the Stephen Kim investigation reached into Fox News reporter James Rosen’s e-mails, it set off a chain of events that revealed how far Obama was willing to go in outdoing Nixon.
Kim was passing classified information about North Korea’s nuclear program to Rosen.75 Holder recognized the leak after reading an article by Rosen about North Korea in 2009. Through a secret subpoena signed by Holder, they tracked Rosen’s movements, phone calls, and e-mails since 2009.76 After the Justice Department had built enough evidence against Kim by secretly stalking him, they needed to get admissible evidence, and after being turned down by two judges, they finally found a compliant judge to issue a secret search warrant.77 Then the scandal avalanched. Later reports revealed that the Obama spy machine’s phone record data acquisitions “included ‘thousands and thousands’ of calls in and out of the news organization [the Associated Press].”78
Meanwhile, what was the Obama administration’s legal theory for this chilling and deplorable attack on the freedom of the press? The Espionage Act of 1917. The Act, which, as discussed, was only used against publications as a perversion of its intent, criminalized leaking classified information and was written so opaquely as to allow reporters who receive such information to be listed as co-conspirators or aiders or abettors. In its application for the search warrant of Rosen’s e-mails, the government told a federal judge that Rosen had conspired to commit espionage when he received true information. This legal reasoning has supposedly been dead since the Pentagon Papers case.
Amid a growing post-September 11th intelligence network that relies heavily on private contractors to supplement government work, Edward Snowden singularly emerges as a contractor who posed an inherent bureaucratic risk to Obama’s spymasters: He had access to troves of classified files on the NSA’s warrantless spying programs, and the personal outrage at America’s secret intelligence gathering.79 In June 2013, after spending months having limited and encrypted communications with Glenn Greenwald of the Guardian and Laura Poitras, a documentary filmmaker, to build trust, Snowden released thousands of NSA files, many of which were marked Top Secret and had the most limited circulation among government documents within the federal government.80 The government brought out the tool of the 1917 Espionage Act to go after Snowden.
Greenwald wasted no time publishing the documents and a series of articles that analyzed the NSA’s unprecedented mass eavesdropping on roughly 113 million American persons (almost one-third of the U.S. population) without a warrant or probable cause.81 Big Brother was alive and well in the revelations as many learned that U.S. citizens and residents, without any connection to terrorism activity or persons linked thereto, but merely customers of Verizon, the telecom giant, were also swept up in the NSA’s program.82
PRISM, the NSA moniker for its mass surveillance program post-President’s Surveillance Program (PSP) and FISA Amendments Act, hardly enters our analysis without predecessors—government spying programs on a large scale were revealed through the 1970s Church Committee findings of illegal and unconstitutional domestic eavesdropping. Though long thought dead since the Church Committee, they existed, and PRISM follows in their footsteps. Almost immediately after the 9/11 attacks, George W. Bush authorized the PSP, code name STELLARWIND, to monitor without warrant and in secret the electronic communications of millions of American persons.83
In 2005, after withholding the story for a year, the New York Times ignited a scandal when it reported the existence of one subset of the PSP, the Terrorist Surveillance Program, surveying mere thousands.84* In February 2007, Bush did not renew his PSP amid public clamor over privacy concerns and serious blows to the Bush legal regime surrounding its secret eavesdropping program in the summer of 2006.85
After turning over the documents in Hong Kong, Snowden quickly hid himself until he could make an Aeroflot trip to Moscow and seek asylum from other nations.86 On June 23, Snowden left Hong Kong; the day before, the U.S. government unsealed a criminal complaint charging Snowden with, among other crimes, espionage.87 The very nature of Snowden’s leak, lifting the veil on a massive intelligence-gathering network that attacked constitutional limits, moved the caught-red-handed feds to charge him.
PRISM supplemented the NSA’s already robust collection of communications, gathering information at servers from several major U.S. providers, including Microsoft, Yahoo, Google, Facebook, PalTalk, AOL, Skype, YouTube, and Apple.88 The named service providers denied that the NSA via PRISM had “direct” access to their servers and later revised public statements on the matter specifically to note that access came only when specific orders were issued by the courts, a much clearer sign that information dissemination, if any, was involuntary.89 The criminal complaint against Snowden twice charged him under the Espionage Act of 1917 for illegally leaking national defense and classified intelligence communications.90
In other domestic courts, however, President Obama has fared more favorably than his predecessor in acquiring favorable judicial decisions and avoiding bad ones.
In the 2010 case Holder v. Humanitarian Law Project, Chief Justice Roberts opined for the Court that the material support statute, as amended by the Intelligence Reform and Terrorism Prevention Act of 2004, was not impermissibly vague as applied to a different organization than the Kurdish Workers’ Party.91 This decision effectively reversed the declaration of invalidity found in Humanitarian Law Project et al., v. Ashcroft because a facial challenge rests on the premise that there is no set of circumstances in which the law could be found valid based on the asserted claim. The Supreme Court’s holding is the equivalent of saying the First Amendment is all right for some groups but not for all.
All is not good news for statists, however. In the 2013 case In re National Security Letter, U.S. District Court Judge Susan Illston in the Northern District of California ruled that the NSL provision of the PATRIOT Act “suffer[s] from significant constitutional infirmities. Further, those infirmities cannot be avoided by ‘conforming’ the language of the statute to satisfy the Constitution’s demands, because the existing statutory language and the legislative history of the statutes block that result.”92 Accordingly, the court invalidated the entire review sections of the NSL part of the statute on First Amendment grounds, thus invalidating federal agent–written search warrants.93
Secret Laws Uncovered: Declassified FISA Court Opinions
Before Snowden’s massive intelligence leak, the federal courts had begun hearing suits aimed at forcing the Justice Department and NSA to disclose FISA Court cases where the government applied for access to information and the FISA Court granted the application.94 The Freedom of Information Act lawsuits came from civil liberties and digital rights groups—ACLU, NYCLU, Electronic Frontier Foundation (EFF)—and sought to shed sunlight on the lack of transparency in the Justice Department and NSA’s wiretapping procedures and results.95
The Justice Department announced in September 2013 it would declassify hundreds of documents on the broad array of the NSA’s domestic surveillance programs, all aimed at counterterrorism investigations and limited in scope to investigating terrorism or suspected terrorists, by releasing FISA Court opinions and orders and some government submissions and compliance reports to the FISA Court.96 The response came after a federal judge in Oakland ordered the Justice Department to disclose documents, not as a voluntary move by the Obama administration.97
Among the newly released documents were several FISA Court opinions that created a legal timeline of the NSA’s authorization for warrantless wiretapping after the Bush-era program was revealed. Beginning in 2006, the FISA Court authorized the NSA to gather telephony metadata (data on calls and callers that resembles the envelope of a letter—address and name only, not contents of the communication itself) information without a warrant based on the information’s “non-content” nature.98 The FISA Court created a framework to allow for non-content data collection and privacy protection within which the NSA could operate in its data collection efforts.99
The very nature of the FISA Court undermines much of its ability to oversee effectively the government’s actions taken in response to its orders and opinions, and never so clearly than in the subsequent opinions and orders also revealed in the Justice Department declassification of documents. By 2008, the FISA Court released a supplemental opinion, clarifying that the NSA had the authority to collect the telephony data sought under the PATRIOT Act’s revision to the original FISA statute.100
The reason for the clarification became known in the 2009 and 2011 opinions by the FISA Court. Compliance incidents were reported by the NSA; data that had no relation to counterterrorism investigations was caught in NSA’s dragnet; and analysts in the NSA were cross-referencing non-content data with other databases that never should legally mingle with the fruits of warrantless data gathering.101 The FISA Court found itself caught in a series of oversights, misrepresentations, and outright lies by the government as it tried to justify its actions to the court.
Finally, the FISA Court ordered a complete review of the NSA program, its oversight and compliance procedures, and any incidents where violations of the 2006 framework occurred. In 2011, just two years after that order, FISA Court declared the NSA’s upstream data collection (a sibling of PRISM as discussed, supra) a violation of the Fourth Amendment.102 The agency had overstepped its legal bounds severely, acquiring thousands upon thousands of communications of persons whose Fourth Amendment rights shielded their data from acquisition prior to a warrant.
The Lawfulness of the FISA Court Revisited
Under FISA’s watch, “the NSA has captured and stored the content of trillions of telephone conversations, texts and emails, and can access that content at the press of a few computer keys.”103 Since its inception, the FISA Court has been the prime example of a slippery slope. The very legal standard the FISA Act forces upon it has proven disastrously malleable: “In 30 years, from 1979 to 2009, the legal standard for searching and seizing private communications—the bar that the Constitution requires the government to meet—was lowered by Congress from probable cause of crime to probable cause of being an agent of a foreign power to probable cause of being a foreign person to probable cause of communicating with a foreign person.”104
The judges of the court can keep no record of proceedings before them and can use only NSA pens and phones during proceedings.105 The court is plagued with both systemic and constitutional problems that relate to a fundamental bedrock principle of American judicial process: The adversarial system.
Courts decide questions of law and fact. The source of those facts is determined by assessing the validity and credibility of witnesses and evidence presented by two or more opposing sides in order to arrive at a true, valid conclusion. The adversarial process, the process of competition between lawyers and parties in any case, allows for testing the veracity of facts in a case and scrutiny of claims. The problem with the FISA Court is that there is absolutely no adversarial process.
This issue is a double-edged sword. First, it corrupts the truth-seeking function of courts, and second, it violates the constitutional requirement of a case or controversy.
As to determinations of veracity or falsity, without adversity, assertions by the government go unchallenged, and a judge is left without any basis on which to contest the government’s assertions. The lack of factual adversity reduces the function of the court to determining matters of law. By being limited in this manner, the court is essentially reduced to applying the law to whatever factual hypothetical the NSA wishes to submit to the court as a government affidavit. As was pointed out by FISA Court Chief Judge Reggie B. Walton, a main problem is that the court can get facts only from the NSA.106 This is the same agency that, as discussed earlier, Judge Bates admonished in an opinion for lying in FISA Court submissions to an extent that is criminal. This lack of adversity corrupts the truth-seeking function of the courts of law—an ethical and legal duty assigned to judges.
Realizing the obvious issues of truth-seeking that come from a court blindly accepting the assertions of one party without even hearing from the other, not to mention the potential abuses of judicial power that could arise out of such a scheme, the Framers of the Constitution “wrote into Article III of the Constitution the absolute prerequisite of the existence of a case or controversy before the jurisdiction of any federal court could be invoked.”107
The Supreme Court has guarded this requirement consistently since the adoption of the Constitution, and the decisions of the Supreme Court have circumscribed what is a case or controversy. The Case or Controversy Clause typically relates to the constitutional requirement of proving injury-in-fact to demonstrate standing. However, the concern here is even more fundamental. The FISA Court doesn’t even hear controversies or cases. The “actual controversy” rule means that cases which are unripe (no controversy has yet arisen), moot (controversy is resolved), or in which the opinion would be tantamount to an advisory opinion may not be adjudicated. Advisory opinions are like those issued by the OLC of the Justice Department—they are untested by legal adversity and are positive statements meant to guide, not to resolve, a matter at hand.
Without even the contemplation of an adverse party, matters brought before the FISA Court (it would be insincere to refer to them as cases) are advisory. Think about it: There is no criminal defendant or ex parte proceeding with the party in an adverse state; there is no civil suit with a plaintiff or a defendant with an amount in controversy. There is the government, submitting uncontestable facts, and receiving an opinion which rubber-stamps its findings.
This reasoning works in reverse as well: If the FISA Court doesn’t rubber-stamp the government’s submissions, then “those court orders are non-binding and the government has ignored them.”108 As I have previously argued: “Unenforceable rulings that may be disregarded by another branch of the government are not judicial decisions at all, but impermissible advisory opinions prohibited by the Framers.”109 A nonbinding opinion, issued in secret to one party, based solely on its version of the facts, with no test of credibility, is mere advice and an opinion in the literal sense of the word, not the legal sense of a disposition of a valid claim.
The FISA Court suffers from irreconcilable issues and is inculcated with Defense Department bureaucrats and administration officials who care nothing for civil liberties or oaths to uphold the Constitution or to tell the truth in court submissions. Obama’s track record on privacy is even worse than his predecessor’s. Overall, the United States has become the dreaded Orwellian world of Oceania:
So fierce was the anger in Berlin over suspicions that American intelligence had tapped into [German Prime Minister Angela] Merkel’s cellphone that Elmar Brok of Germany, the chairman of the European Parliament’s foreign affairs committee and a pillar of trans-Atlantic exchanges since 1984, spoke Friday of America’s security establishment as a creepy “state within a state.”
Since Sept. 11, 2001, he said, “the balance between freedom and security has been lost.”110
He was mostly right: The constitutional bias in favor of freedom, at the expense of even the state’s police power, has been eroded over the past century and has culminated in the current, creepy super-state.
* George Orwell, 1984 (New York: Signet Classics, 1950), 3.
* President Ford signed Executive Order 11,905 in 1976, banning political assassinations, which President Carter expanded on in Exec. Order No. 12,036, 43 Fed. Reg. 3674 (1978); see Exec. Order No. 11,905, 41 Fed. Reg. 7703 (1976).
* There was a large, remarkable piece written on the topic in 2012, Under the Drones. Shahzad Bashir and Robert D. Crews, eds., Under the Drones: Modern Lives in the Afghanistan-Pakistan Borderlands (Cambridge, MA: Harvard University Press, 2012).
* “Thus, the President may not invoke the laws of war regarding legal combatants to justify his actions domestically, which creates an unavoidable tug-of-war between the AUMF and the foreign-murder statute. And because the AUMF cannot reasonably be interpreted to repeal the foreign-murder statute, it is difficult to avoid the conclusion that any C.I.A. operative that executed President Obama’s order to kill al-Awlaki is guilty of murder under the foreign-murder statute. An equally unavoidable conclusion is that certain high-ranking executive officials, including the President, would share in that criminal culpability.” Philip Dore, “Greenlighting American Citizens: Proceed with Caution,” Louisiana Law Review 72, no. 1 (2011): 286.
* “This statutory mandate will inevitably reduce our privacy through increased aerial surveillance of neighborhoods and public places by law enforcement drones, bringing us ever closer to an Orwellian state.” Robert Molko, “The Drones Are Coming: Will the Fourth Amendment Stop Their Threat to Our Privacy?” Brooklyn Law Review 78, no. 4 (2013): 1283. The FBI (and by virtue of that, presumably the military, NSA, and CIA) can activate a laptop camera or desktop plugged-in camera and watch what it sees in real time, or record what it sees. See Craig Timberg and Ellen Nakashima, “FBI’s Search for ‘Mo,’ Suspect In Bomb Threats, Highlights Use of Malware for Surveillance,” Washington Post, December 6, 2013, http://www.washingtonpost.com/business/technology/fbis-search-for-mo-suspect-in-bomb-threats-highlights-use-of-malware-sophisticated graphs of. . .for-surveillance/2013/12/06/352ba174-5397-11e3-9e2c-e1d01116fd98_story.html.
* Interestingly, Snowden cites the Times’s decision to withhold the story as a reason he approached the Guardian instead of the Gray Lady: He felt that withholding from the public such information for so long a time undermined the journalistic integrity and values behind traditional press and sought out a contemporary to which he could leak the documents. See Ewen MacAskill, “Edward Snowden: How the Spy Story of the Age Leaked Out,” Guardian (UK), June 11, 2013, http://www.theguardian.com/world/2013/jun/11/edward-snowden-nsa-whistleblower-profile; Peter Maass, “Q. & A.: Edward Snowden Speaks to Peter Maass,” New York Times, August 13, 2010, http://www.nytimes.com/2013/08/18/magazine/snowden-maass-transcript.html.