The Aftermath of Judges Vinson’s and Howard’s Disagreement about Warrantless Surveillance

Judge Howard’s Order of April 5, 2007 Temporarily Extending the Foreign Content Order

Despite rejecting the government’s renewal application, Judge Vinson granted the government leave to apply for a single extension until May 31, 2007 of Judge Howard’s Foreign Content Order of January 2007. On April 4, 2007, Judge Howard ordered the extension. Order, In Re [Redacted], Docket Number [Redacted].

Judge Vinson’s Order of May 31, 2007 Allowing Warrantless Interception of Foreign Communications

In his April 3 Order and Memorandum Opinion, Judge Vinson granted the government leave to file for an extension of Judge Howard’s foreign content order so that it could “work in good faith toward the preparation and submission of a revised and supplemental application that would meet the requirements of FISA …..” Order and Memorandum Opinion, In Re [Redacted], Docket Number [Redacted] at 21.

On May 31, when the extension expired, Judge Vinson issued an Order allowing the interception of the contents of communications to or from specific foreign email addresses and phone numbers that he found probable cause to believe were being or about to be used by agents of a foreign power.

Surprisingly, in view of his Order and Memorandum Opinion of April 3, Judge Vinson now relied on the “roving wiretap” provisions, appended to FISA in 2001 and 2006, to allow NSA agents to intercept the contents of communications to and from additional email addresses and telephone numbers beyond those specified in his May 31 Order. For interception to be allowed, the additional email addresses and phone numbers must have been “unknown to the NSA as of May 24, 2007 (the date the application [for the May 31 Order] was filed. Order, [Redacted], Docket Number [Redacted] (FISC May 31, 2007) at 11. NSA agents must find probable cause to believe that an agent or member of a foreign power was using or about to use the additional phone numbers or email addresses. In addition, they must not reasonably believe that the phone numbers or email addresses emails were being or about to be used by a United States citizen or legal resident or within the United States.

Starting within three weeks of the Order, Judge Vinson required the government to submit weekly reports identifying each additional phone number or email address on which surveillance was conducted and explaining the basis for finding probable cause that it was being or about to be used by an agent of a foreign power. The continuation of surveillance was not conditioned, however, on independent judicial findings of probable cause. Instead, Judge Vinson stated that, “The Court may order the Government to immediately cease electronic surveillance of any facility as to which it deems the facts and circumstances relied upon the Government to be inadequate [to establish probable cause].” Id. at 18.

Judge Vinson’s Order and Memorandum Opinion of August 2, 2007 Clarifying When Warrantless Interception Would Be Allowed

In response to the government’s weekly reports, FISC Judges Kazen, Bates, Benson, Scullin, and Kollar-Kotelly ordered supplemental showings that the additional phone numbers and email addresses were “unknown” and therefore need not have been identified to Judge Vinson when the government applied for the May 31 Order.

In his Order and Memorandum Opinion of August 2, Judge Vinson ruled that an additional phone number or email address could count as “unknown” even if all the facts on which NSA agents’ findings of probable cause were based were known to the government when it applied for the May 31 Order. A failure to identify a phone number or email address would be excused if, at the time of applying for the Order, the government had not connected the facts to find probable cause that a foreign power was using or about to use the phone number or email address.

Judge Vinson acknowledged that his interpretation would give NSA agents broad discretion to decide which communications to intercept. He  “conclude[d] that, under the limited circumstances where this authority applies – only to facilities reasonably believed to be used by non-US persons outside of the United States, on behalf of one of the targeted foreign powers – it is appropriate to grant the government as much latitude in initiating surveillance as the statute can reasonably be construed to permit.” Id. at 3.

The judge did not go so far, however, as to accept the government’s position that any phone number or email address that the government had not previously identified in a FISA application or targeted under the Terrorist Screening Program could count as “unknown.” As Judge Vinson recognized, “These criteria, by their terms, would not preclude the strategic withholding from pre-surveillance judicial review of facilities that were already intended to be subjected to the FISA surveillance at the time the application was submitted.” Id. at 4.

The Road to the Protect America Act

In his August 2 Order, Judge Vinson remarked that legislation was needed to remedy the difficulty of applying FISA to surveillance of the contents of foreign communications.

This case has required, and continues to require, an extraordinary expenditure of time and effort by NSA, the Department of Justice, and this Court, notwithstanding that it concerns electronic surveillance that is overwhelmingly directed at non-U.S. persons operating outside of the United States. …[L]egislative action is urgently needed to refocus the FISA process on surveillances that – unlike this one – significantly involve interests protected by the Fourth Amendment.

Id. at 1.

An Inspector General’s Report released on January 9, 2015 in response to a FOIA lawsuit brought by the NY Times on May 28, 2014 shows that the Bush Administration shared the view that legislation was needed. There, a former senior Justice Department official is quoted to the effect that Judge Vinson’s requirement of probable cause for each selector email address and phone number “caused the NSA to place fewer foreign selectors under coverage than it wanted to.” This, together with “the comparatively laborious process [Judge Vinson imposed] for targeting selectors,” accelerated the Bush Administration’s efforts to gain legislative approval for warrantless surveillance, Id. Oversight and Review Division, Office of the Inspector General, “A Review of the Federal Bureau of Investigation’s Activities Under Section 702 of the Foreign Intelligence Surveillance Act Amendment’s Act of 2008” (September 2012) at 11.

On August 5, 2007, the Protect America Act was enacted.

 

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