12/12/12 – Michelle Richardson – The Scott Horton Show

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Okay, next guest is Michelle Richardson.
She is legislative counsel for the ACLU, and she's the author of this piece at thehill.com, at the Congress blog FISA Needs Oversight Amendment Before Reauthorization.
Welcome to the show, Michelle.
How are you doing?
Good.
Thank you for having me.
I'm very happy to be here.
Well, good.
Very happy to have you.
Very in-depth and informative article, and, of course, I agree with your slant, too.
First of all, could you please inform us on – well, jeez, I hate to have to go back, but I guess we have to go back to FISA in the first place and then the Amendments Act of 2008.
Anything else you want to fill in in the meantime of how this works so that people understand the background?
Sure.
FISA is a law that regulates foreign intelligence spying through a secret court.
It was passed in the late 70s after Congress discovered that the FBI and NSA were spying on Americans and not getting court orders.
And up until 9-11, it generally required that the government go to the secret court, show probable cause, and get a warrant to either wiretap someone's phone or get their very sensitive Internet records.
But when the Patriot Act came along, Congress started amending the law.
And the George Bush administration, in fact, decided to ignore it altogether and conduct a warrantless wiretapping program that ran for several years until The New York Times published a story explaining that they were picking up all of these American phone calls without warrants and without following FISA.
So Congress engaged in a two-year debate and ultimately, in 2008, passed a statute that made warrantless wiretapping legal.
It said that the administration can get generic, programmatic, year-long orders for all sorts of wiretapping of phone calls, emails, text messages, and records without alleging anyone's done anything wrong.
It had a sunset, and it is scheduled to expire at the end of this year, so just in two and a half short weeks.
And Congress has not passed a bill reauthorizing it or amending it in any way.
Okay, so questions.
First of all, this is basically, I think the way you described it, it's sort of a general warrant.
When you talked about text messages and phone calls, et cetera, I forgot the terminology you used, but it sounded like you were saying that they can authorize multiple taps of multiple targets all at the same time for a year at a time, maybe not even knowing who they're authorizing the targeting of.
Is that correct?
Correct.
The administration has described this as orders for categories of surveillance.
So even though the secret FISA court is reviewing applications, they don't actually say who's going to be wiretapped, what the phone number is, where the facility is.
It is a general description of the types of places or people who will eventually be tapped, and then it's left up to the administration without court oversight to decide who's going to get sucked up in these programs.
And we think, the way the law was drafted, that the point is not to even actually go after a specific bad guy overseas, but to do bulk collection and grab all the phone calls and emails, say, coming out of the Middle East or Southeast Asia or some of these other conflict zones.
Well, so now, from what I've read of it, and I sort of got this idea from your piece, too, and I read this in a couple of different places, it seemed like the only controversy was that the NSA would be wiretapping someone overseas or maybe any and all people overseas and that anyone on the American end of that conversation would then be being spied upon in violation of what used to be the Bill of Rights, that kind of thing, beyond what they're supposed to be able to do.
But I always thought, and correct me if I'm wrong, the NSA doesn't need any permission, certainly not from the FISA court, to tap overseas phone calls.
It's really all about, this whole thing is about being able to tap Americans.
That's why they would need to go to the FISA court in the first place, right?
So they're making it sound like this is an unintended side effect of the rest of their spying, but isn't it the whole point?
Correct.
Correct.
If they want to wiretap overseas people who are overseas, they never needed a FISA court warrant in the first place.
That is free game, and the NSA can collect whatever it wants.
And for decades, it has been in the business of pulling down all that information, and they continue to do so.
You really only need the court order when you actually want to be operating on U.S. networks and actually going to AT&T or Verizon or Comcast and asking for those records.
So there is an American nexus, and it does implicate the Fourth Amendment.
Otherwise, there's no need to get the court involved at all.
But then I guess the war party's excuse would be, the way the circuits are set up in the world is you could have an al-Qaeda guy in Yemen talking to an al-Qaeda guy in Somalia, and the electrons cross through Las Vegas on the way.
And so you're trying to take that out of their legitimate domain just because of the incidence of which way the phone call travels through the fiber optic networks on the planet and that kind of thing, right?
Right.
Right.
A lot of the Internet and phone structure has been built up in the United States, and a lot of nearly foreign communications are incidentally routed to the United States.
However, when the story broke and people originally started talking about exempting those foreign-to-foreign communications, members like then-Rep.
Jane Harmon or Adam Schiff actually introduced legislation to say, okay, those foreign-to-foreign communications, you can have them.
We never intended for the law to cover these.
But the administration at the time said, no, no.
We want the communications where we don't know where the other end is, and that means even if it's an American, we still want that information.
So they went into this fully intending to pick up those communications.
All right.
And now when it comes to, well, I don't know, how broad are these categories?
Because I guess my understanding back, if I'm trying to remember right from 2008, it was that these general warrants were written so broad to basically allow full-scale domestic spying as though we were all foreigners under the old rules.
Well, they're only limited by the purpose of collecting foreign intelligence information.
The problem is foreign intelligence is an incredibly broad category that includes catch-alls, undefined catch-alls, like for the protection of our national security and the defense of the United States and foreign relations.
So it could include not just suspected terrorist activity, which they often use as an example of why FISA is necessary, but also anything that can affect foreign relations anywhere in the world on any topic.
So it's incredibly broad and allows them to cast a wide net.
And we think that when you cast a net that wide, you're inevitably and routinely picking up American communications because they're either communicating with people overseas or you're getting a substantial number of purely domestic communications in the meantime.
Yeah.
I mean, it seems like with all the secrecy, they could basically just do whatever they want.
It doesn't matter if the FISA court is there just to make it sort of look legitimate, but really it's the same thing as it was during the Stellar Wind days or whatever, right?
They're just taking whatever they want.
Right, right.
They now just have the sheen of statutory authority to do so.
And this lack of information that you bring up, this has been one of our biggest problems trying to fight these sorts of programs.
They operate in complete secrecy out of the NSA.
Everything is classified and your everyday congressperson has no idea how it works.
There's only a very small handful of reps and senators who actually get the classified briefings that explain how these programs work.
And you can see that Senator Wyden and Senator Udall feel that they don't understand exactly how many Americans are being picked up and what is done with their information, even though they sit upon the Intelligence Committee that's tasked with conducting the oversight.
Yeah, they always complain about that, but it doesn't seem like they try very hard, those guys.
But now when you talk about that very small number of people, that's just the leaders of both parties in both houses and then the leaders of both parties on the Intelligence Committees and that's it?
Yes, yes.
It's the Intelligence Committees in the House and the Senate.
Sometimes they will have classified briefings for them, but their staff are not cleared to hear the information, so they can't even rely on their own staff to give them guidance about whether this program is a problem.
And while they do require some reports to be filed under the FISA statute, they aren't very substantive.
They don't include things like how many Americans are spied on, who can access their information once it's sucked up, what protections are there on the back end to make sure that it's not abused.
And those very simple questions have never been answered in four and a half years, yet Congress is on the verge of passing a reauthorization.
Yeah.
You know, I don't know how they define standing to sue so narrowly to make it impossible for even, I mean, this is the ACLU's role in our society is somebody's got to be able to sue and ask a judge to check the executive branch here, and then they deny your right to even ask the judge to check the executive branch.
It's crazy.
Correct.
The day that the FISA Amendments Act was signed, the ACLU filed suit on behalf of lawyers and journalists and advocates who work in conflict zones overseas and who had a very reasonable fear that their communications were going to be picked up in this dragnet spying program.
And four and a half years later, we're still on the standing question.
No court has actually decided on the merits of this case and whether this sort of broad surveillance is constitutional, but we did have arguments in the Supreme Court in October.
So hopefully a decision will come down next year and we'll be able to move forward.
But, you know, this is a very long process to work all the way through the courts, and that's why it's absolutely critical that Congress take action now, that during this reauthorization process, they force disclosure and amendment of the FISA Amendments Act.
All right.
Now, tell us about what the ACLU is doing.
Are you guys organizing a public email campaign or that kind of thing, phone calls to senators?
Because I think you already said, right, the House already passed it.
There's just a few senators standing in the way of the reauthorization here.
Yes.
The ACLU has an action up on its website.
If you go to ACLU.org, you can email your senator directly asking them to make changes to FISA before they reauthorize it.
There is still time to reach out and make a difference.
You know, they are being squished for time right now, and they need to hear from us that people still care about this issue, that even though it's been four and a half years, we're still watching them when it comes to FISA and surveillance, and we want our civil liberties protected.
Yeah, you know, that's the problem is this kind of thing.
There's just outrage a day, every day for a decade.
People get tired.
It's hard to focus on.
Oh, yeah, the warrantless spying on us all.
Well, that's nothing compared to torture, right?
But then torture is nothing compared to a war that they knew wouldn't work but waged anyway, and on and on.
You know what I mean?
I'm sure you're feeling the pain there where here's this most important issue in the whole wide world, and how do you get people's attention and lasso it and put it to use?
Right, right.
And that has always been a challenge when you're trying to organize for change.
The upside is that there are more and more ways to contact your congressperson and do things publicly with advent of the Internet.
You know, it's easy to tweet to your senator, for example, or send an email or write a letter to the editor and submit it online, and hopefully people will take the few minutes to take one of those actions so that the Hill and the administration hears that people still care about these issues.
On a related note, real quick, on the secrecy, there's been this new thing that as far as I understand it, this doctrine was invented during the Bush Jr. years there, is that the state secret's privilege, instead of being used by a judge to let the prosecutors, I guess it would mostly be the prosecutors, or no, I guess it could be defense attorneys too, anyway, exclude certain pieces of evidence, that they can now exclude entire suits at law, criminal, and civil.
On the basis of there's just too much secrecy involved, and so forget it.
And I was wondering, can you guys sue about that doctrine itself, or you could only try to get a court to agree with you on one specific case in order to change that?
Because that seems to me pretty obscene, when the executive branch on torture and spying and whatever else they want can just say, well, you know, there's state secrets at play there, and so your honor, you can't even hear this thing.
Right.
That has been an increasing problem over the last decade, that the executive branch uses it as an immunity doctrine, instead of something to shield specific pieces of evidence.
Because even we admit that there are going to be documents or information out there that they need to protect, but they instead now use it to dismiss entire cases, and rule entire subject matters out of bounds for our own federal judges to hear.
You cannot just challenge it.
You do have to wait for it to be asserted in a specific case, and then you can litigate the constitutionality, for example, of state secrets.
And we have done that in some of our cases, for example, our torture cases.
And it's been a mixed bag, and there is no definitive ruling in the U.S. right now about whether or not courts can dismiss these cases outright.
So it's going to be a long-term battle on that, too.
And it's also an area, like FISA, that probably is best dealt with by legislation, and hopefully Congress will get around to passing something that directs judges to look at individual pieces of evidence and make rulings on whether they can be disclosed instead of dismissing cases from the outset.
Right.
Yeah, well, I sure wish that – I sure would like to see some progress along those lines, because as you said, that was the word I was looking for, of course, turning it into a doctrine of immunity and impunity, rather than anything like a legitimate excuse to protect the identity of a covert agent or something like that, or how a satellite works.
And judges have been making these decisions in criminal cases and other terrorism-related prosecutions and things like that for decades.
They're fully capable of handling this information, and there's no evidence that a judge or a court has ever leaked classified information in all the years that they've been doing this.
And we need to trust them to look at these national security cases also.
This is where some of our civil liberties questions of our time are arising, and we can't even have our third branch of government look at it and make constitutional rulings to protect our rights.
Yep.
All right, and by the way, I'm glad I asked you that, because I had a chance to remember this piece from – I guess it's almost a couple of months ago now.
It's at aclu.org/blog.
New Justice Department documents show huge increase in warrantless electronic surveillance.
Can you tell us about those documents?
Yes.
Those documents were not necessarily on wiretaps, but record requests.
And this is a problem not just in the foreign intelligence area, but also in the criminal investigation realm.
And that's what those documents are about.
With the advent of the internet and digital phone calls and all of the things that we do that leave a paper trail, an electronic trail of what we buy and what we read and where we go, it makes it easier for the government to track that information and make those requests.
The problem is that the laws that govern those requests haven't been updated for decades.
They were written way before anyone could even imagine the type of information that would be available on people in an electronic format.
And so they're horribly out of date, and they allow the government to collect that information without a warrant and just on a mere subpoena.
Right.
Or even just a request, right?
Because any business owner who knows what's good for them is going to go ahead and hand over whatever the cops are asking for.
Right?
Well, you know, it depends on the information.
A lot of these pieces of sensitive information like banking records or phone records at least have a presumption of privacy.
And the government would have to either issue a subpoena or claim there's an emergency or some other sort of process to have access to the information.
In general, these companies should not be willy-nilly turning it over in response to just an everyday request.
That being said, the standard for the government to get a subpoena is so incredibly low.
You know, they just have to allege that the information is relevant to their investigation.
A very low hurdle, and it doesn't even have to allege that anybody's done anything wrong.
So we think that these are going out regularly and more often and are collecting vast amounts of data.
And can you comment real quickly on the, well it doesn't even have to be that real quickly, on the Ninth Circuit Court decision about the undercover surveillance, warrantless undercover video surveillance?
You know, I'm not familiar with that case.
Oh, okay.
But you heard of the one?
Yeah, yeah.
And video surveillance is another way that technology is outpacing the law.
And there are very few protections on when the government can do video recording, especially when you're out in public.
And in fact, you are filmed by hundreds of cameras every day as you drive by banks and grocery stores and through traffic lights.
And if that information is recorded, the government may have access to it through those things too.
Well, yeah, and you know, I wouldn't want to ask you, I guess I did, but I'll back off asking about that specific case.
But in general, like hypothetically speaking, if an undercover cop had no warrant, no court order, and had a secret microphone or a secret video camera recording of the inside of somebody's house, typically would they be able to use that in court or that's exclusionary rule time?
You know, that's a good question.
I'm not familiar with those line of cases.
You might have issues with whether the person consented to have that officer come into their home or if they're out in public.
And it also probably varies by state.
Different states have different laws on whether you need both parties to consent or just one.
I see.
Right.
Okay.
Yeah.
We even see in some cases people are being prosecuted for videotaping a cop on the job out in public.
So because they didn't consent.
Right.
Right.
Under that theory anyway.
Yeah.
And this is an area where there's not a lot of definitive law and it will have to develop over time as these cases go to court.
All right.
Well, keep up the good work.
I don't know what in the world we would do without the ACLU.
And I think everybody disagrees with you guys about something or another.
But I think we can all also agree that we would be in deep, deep trouble without you guys suing the government all day and organizing actions against bad legislation and attempts to try to limit its horror.
So thank you.
Thank you, Scott, for having me.
And for everybody who's listening, it's not too late to call your senator and let them know that you want to see changes to the FISA Amendments Act.
Right on.
Okay.
Thank you very much.
Appreciate it, Michelle.
Take care.
That's Michelle Richardson.
She is legislative counsel at the American Civil Liberties Union.
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