Secret Court's Redefinition of 'Relevant' Empowered Vast NSA Data-Gathering
online.wsj.com
online.wsj.com
> The history of the word 'relevant' is key to understanding that passage. The Supreme Court in 1991 said things are 'relevant' if there is a 'reasonable possibility' that they will produce information related to the subject of the investigation. In criminal cases, courts previously have found that very large sets of information didn't meet the relevance standard because significant portions—innocent people's information—wouldn't be pertinent.
As a general rule, words have to be interpreted in the context of the laws that use them, because the same word can have different connotations in different laws. To use a programming analogy, talking about what "relevant" means in the law is like talking about what "num_files" means in programming. You can get a very general idea from the text, but you don't really know what the term means without looking at the rest of the source.
"Relevant" means different things in the law. The article cites the narrow definition used in criminal search cases, but the Patriot Act is about foreign intelligence, not criminal prosecutions. In the law of evidence, for example, "relevant" is extremely broad: anything that could change whether some material fact is more or less likely to be true. You can't take the Supreme Court's interpretation of "relevant" in one case and apply it to the interpretation of the Patriot Act, just as you can't take a variable name in one program and assume it means the same thing in another program.
Specifically: the notion of "relevance" we seem to be working from comes from Terry, which is confusing, because Terry determines when the police can briefly detain people and frisk them to ensure the safety of the police officers. Terry isn't (at least as I understand it) doctrinally fundamental in any way.
That's a highly permissive interpretation, though one that does allow for the gutting and redefinition of the word. I'm not sure I'd go so far as to say legal terms are as fundamentally meaningless as variables, mere containers for whatever the practitioner desires, though.
Can "relevant" be defined as null?
In this context "relevant" preserves its meaning as an adjective describing a thing's bearing on another thing. It's the nouns connected to it that have changed. The nouns are what's at issue here: whether surveillance even needs to be connected to anything (the other thing that something has bearing on, connected by the word "relevant [to]").
Of course that's not at all what happens. To see why, you merely need to look at the different ways the word "relevant" are routinely used in law; relevance is germane to hiring decisions, to college admissions, to admissibility of evidence in civil cases, and to the commerce powers of the federal government. Clearly all these concepts aren't regulated by Terry v Ohio!
(It is, as Kerr points out, very possible that the courts are relying on Terry in this case. But if they are, what's notable is the application of Terry at all, not a change in the meaning of Terry.)
The word "relevant" is used in so many different ways because it's an adjective. You don't say "look at how many different meanings there are for the word, 'green': green cars, green makeup, green grass." The word, "relevant" is the same way, except that it takes two nouns or noun phrases, necessarily, because the only meaning of the word is to describe that they are connected, that they are germane to each other.
"[R]elevance is germane to college admissions" is a meaningless phrase because "relevant" and "germane" are somewhat synonyms. "Relevance is relevant to evidentiary rules." OK.
The context here is an argument of what the terms of relationship are and whether and what those have been changed to. The Terry test speaks to what the surveillance is relevant to. It's not a change in the meaning of Terry, it's a change in the relationship of the surveillance to a particular standard. It could be Terry, it could be something else, but at the end of the day, in the equation "X is relevant to Y," Y is the thing that's changing (or missing, if you follow emptywheel).
You indulge the nitty-gritty detail of the topic I'm discussing anyways, in order to dismiss what I said. But your dismissal doesn't make any sense; you appear incapable of comprehending that there's a second order of relevance at play in cases determining what "relevant" means to different circumstances. Is the color of someone's hair relevant to predicting their performance on a job? Objection! Requires court to recursively evaluate concept of relevance! Overruled.
I don't know who you're referring to when you point to "self-styled intellectuals", but if it's a participant on this thread, I'd note that nobody here has taken to calling you names.
And that's a pretty funny implication: "I only called other people names." I guess I should apologize if my first paragraph broke your brain, it was the last part I wrote and I almost didn't include it.
Have you read legal code, by any chance? Often modern laws include at the beginning of each section a wordy definition of what each term actually means, despite each of those terms having perfectly good and reasonable meanings in the common vernacular. It is later in accordance with those terms that the court interprets the law (assuming, of course, that the law is not deemed unconstitutional).
Given that plethora of examples of this in the law (and case law) I don't see how pointing out that legal principles are being misapplied is somehow subservient to authority. The journalists have tried to explain things in the context of legal principles and not reason, so they should be evaluated on legal principles. Otherwise we risk people trying to rely on that flawed logic in the courts in good faith, with nothing to show for it, when they should have been taking action that had a shot at success.
So PRISM and all the rest may very well be bullshit, but it will be because it's actually bullshit and not because (in this case) some reporters have spotted some glaring bright-line change instituted by a panel of 12 judges.
The risk with these types of arguments is that the technically skilled opponent points out the flaw in your reasoning and derails the whole thing, even though your overall point may have actually been valid.
In this case, the government can go 'No conspiracy here, the reporters didn't understand that the definition of relevance for these cases comes from <whatever case law>, so all hunky-dory now, eh. Oh look, Egypt!'
It was congress who created FISC and FISA, and congress who can end it.
The point you want to be making is about transparency, and about general citizen oversight. The distinction is extremely important; for instance, random citizens of the US have no direct oversight over military operations, never have, and never will. If you make the argument about civilian oversight, you've already lost, because the intelligence system does in fact have civilian oversight; it's just not the oversight you want.
Similarly, if word never filters back, they can't exercise indirect oversight through elected officials, because they're incapable of even knowing that they should be electing officials based on how they will resolve those issues.
Again the problem isn't oversight, but rather (in this instance) that you realize that most of the population doesn't agree with you, and won't vote a representative out of office solely because of their position on FISA.
Mostly conservative republicans, appointed by a conservative supreme Justice. But civilians, sure.
>the DNI is a civilian position,
Every DNI there has ever been has either been a spook or a former high-ranking military officer; except Negroponte, who was, weak sauce.
>There is no truth to the idea that NSA lacks civilian oversight.
There is no truth to the fact that the NSA lacks civilian oversight.
As to the idea that the NSA/FISC lacks civilian oversight? There's no reason to believe that any meaningful oversight exists at all. For one example, consider these recent comments by U.S. District Judge Nancy Gertner
"As a former Article III judge, I can tell you that your faith in the FISA Court is dramatically misplaced."
I'm glad we have some common ground there.
Given that the activities of the DOJ and the NSA do in fact have a direct and immediate impact on individuals that the public law is written, ostensibly, to protect, how can it be argued that these organizations should be allowed to interpret the law in a secret manner?
My point is, that a law which as written to govern the activities of the DOJ and the NSA, does in fact apply to the public.
Consider: there are many laws which govern the activities of the police. These laws are public laws, and effect the public directly. When the police violate these laws (as they often do), a public court interprets the public law with which said police failed to comply, and thus violated your, the public's, rights. The secret FISC courts make it impossible for you to have any recourse in the manner in which your rights are being violated.
This is the stuff of communist China.
Congress has the authority to do that, just like Congress doesn't have to pass individual acts determining each line item NOAA spends money on, or how exactly EPA will monitor industrial emissions.
I'm not saying Congress was smart to concede this authority to NSA and FISA; in fact, I think doing so was a dereliction of their duty. But what it wasn't was a power grab by the surveillance state. Rather, it was Congress being too short-sighted and bored of surveillance issue to properly regulate it.
My point is that even if the law applied specifically to the NSA/DOJ/FISC, it still applies to each individual, because the laws in question specifically govern how that NSA/DOJ interacts with individuals.
No one here is saying that the NSA is acting outside the law. That's the travesty of the thing. They are not. They are doing what congress allowed them to do. But the fact is, congress intentionally setup a system which has, in essence, unbridled power. When you tell a group of enforcers "the law means what you think it means", this is what the inevitable result will be.
Hmm. To me it looks like the supporters of a surveillance state did something clearly illegal for a few years, and once it started to come out they got the laws changed to legalize it, grant retroactive immunity, and prevent any meaningful oversight -- doing their best to prevent any real debate on it.
As part of changing the laws, intelligence officials have repeatedly failed to disclose key information, inflated the successes of these programs, and on at least some occasions lied to Congress. The chairs of the House and Senate Intelligence committees are strong supporters of the surveillance regimen, and have worked closely with the administrations throughout the years.
Would the 2008 FAA debate (which was pretty close -- 40+ votes for the Bingaman amendment) have come down differently if people knew the breadth of the phone and internet metadata tracking and definition of "relevant"?
So it looks like a power grab to me ...
I personally am in the camp that believes congress washed their hands of this matter long ago
FISC was created as part of a mechanism to reign in potential legal and illegal activity by the intelligence apparatus: http://en.wikipedia.org/wiki/Church_Committee.
Do we know where the pressure/lobbying for passing rule-making authority was sourced?
I'm not on the 'power grab by the surveillance state' wagon, but I am keenly interested in where the sources lie and what arguments convinced Congress to pass off rule-making authority.
It's not that foreign signals intelligence is too technical a topic to regulate, but rather that FISA necessarily deals in the whole sweep of the most sensitive secrets the USG handles. One imagines that virtually any sensible bright-line rule a legislature could come up with would immediately compromise some prima facie legitimate objective that NSA might already have. Worse still, the process of sorting out these conflicts between pragmatism and principle involves a sort of survey of the whole landscape of secrecy --- which, suffice it to say, is not a terrain Congress is comfortable wandering around.
That's not to say that all, or even most, of what NSA does is prima facie legitimate! It's just to point out that there are probably a diversity of legitimate programs that need to be accounted for, but somehow accounted for without betraying them to the world.
Okay, so it almost sounds like the problem here is Congress is reticent to dig into surveillance issues, not because they can't keep the proceedings secret during a hearing on classified matters, but because passing legislation that responds to issues uncovered during such a hearing would have the undesirable effect of promulgating exactly what potentially problematic issues are at play in the text of laws (which would then have the undesired effect of notifying legitimate enemies/adversaries/targets as to what the specific technical capabilities of NSA, et al., are). So, if this is somewhat accurate as assessment, the congressional response is to then create a legal gatekeeper that can adequately assess the sensitive nature of the issues and (hopefully) provide sane guidance and oversight without codifying problems in laws. Hence, the prevalence of rules and policies that allegedly safeguard citizens, but no specifically detailed laws on the matter?
Now, the task appears to be interrogating whether or not this is a valid protection of the citizens' rights without violating or unintentionally weakening the Executive powers we depend on for national security, right? Given that the leaks have publicized an alleged extent of sigint activities and capabilities, at what point does Congress act to legislate legitimate safeguards?
[edit: a bit more clarity]
A separate issue is the process by which executive discretion is exercised. Take a simple, less politically charged example: drilling on federal lands. The President has the legal authority to set policies for drilling on federal land. It is not illegal for the President to conduct this policy-making in secret. I don't think it's good government, but it's not illegal.
FISC is similar. The most important thing to understand about FISC is that it was a Congressional response to executive surveillance activity that was previously happening without any judicial oversight. Three Constitutional principles give the executive substantial latitude in engaging in surveillance activity: 1) records held by third parties are generally not protected by the 4th amendment; 2) non-citizen and non-residents generally don't have 4th amendment protections; 3) the executive has supremacy when it comes to matters of national security and war.
These three principles give the executive a lot of latitude in conducting surveillance. It can tap the phones of foreign agents. It can collect information like phone numbers dialed by citizens. It can do that all Constitutionally without getting warrants. FISC was an attempt to insert at least some judicial accountability for things that would otherwise be entirely within the executive discretion. That's not "the stuff of communist China." That is a compromise intended to get around the fact that the Constitution really doesn't look favorably upon the courts' second-guessing the executive when it comes to war and foreign affairs.
There is also the underlying question of whether all Constitutional violations can be remedied in the public courts. This is not clear that this was intended to be the case. Many people think that in some cases, especially when national security is concerned, the executive is empowered to interpret the Constitution in good faith, and while it is obliged to act within its bounds, its interpretations cannot be second-guesesd by the courts.
[edit: I am seriously asking about legal/constitutional concerns and interpretations. I just re-read my comment and worried that it sounded potentially dismissive or combative, which is not my intent.]
Furthermore, law making does not end when the President signs a bill. Courts regularly interpret and shape laws in a manner that far exceeds the intent of the writers or the limitations of the Constitution. However, in the light of day, we have a remedy for this. We can appeal, in a public manner, such bad decisions, and reverse the over-reach of the lower courts. By allowing secret courts, you are, in fact, allowing secret law-making, because lacking the oversight of the public courts, the over-reach of the secret courts is unchecked.
It most certainly has: citizens of the US have been required to give the intelligence communities their personal data. You may call this something other than "binding," but to imply it doesn't affect individuals (let alone citizens) is a bit imprecise. Surely you aren't saying, "Hey guys, it's only the DOJ."
In classified orders starting in the mid-2000s, the court accepted that "relevant" could be broadened to permit an entire database of records on millions of people, in contrast to a more conservative interpretation widely applied in criminal cases, in which only some of those records would likely be allowed, according to people familiar with the ruling....
Two senators on the Intelligence Committee, Ron Wyden (D., Ore.) and Mark Udall (D., Colo.), have argued repeatedly that there was a "secret interpretation" of the Patriot Act. The senators' offices tell the Journal that this new interpretation of the word "relevant" is what they meant.
EDIT: Orin Kerr speculated about Lichtblau's story:
I would guess that this leak coming from “current and former officials” is an authorized leak designed to see if revealing some information will take the pressure off to reveal more. If I’m right, we’ll see if it works, or if this leak only creates more pressure to release the opinions or at least reveal more about them.
http://www.volokh.com/2013/07/07/hints-and-questions-about-t...
Saying things like this only serves to validate the action. They are elected to serve the people, if they choose to be a terrible person and throw millions of people under the bus for personal gain, then lets call them on it. Call them a terrible person, don't let them off the hook with "they might lose their job".
Senators (and others) enjoy comfortable lives insulated from the consequences of their actions, especially after having retired from politics.
Politics in America may have descended to the point of "suicide elections" where they -- those who seek to subvert democracy to further their own means and ends -- use everything in their power to maximize public support for a particular candidate. The candidate knows that their political career will have been destroyed in the process, however they're promised protection, great wealth, and influence. This process, from recruitment to "execution," requires a great deal of planning but the reward greatly outweighs the risk.
Perhaps they're afraid they'd get kicked off of the Intelligence Committee and lose what little ability to provide oversight they already have?
It is completely absurd to suppose that even the most serious terror attacks in history (like the 9/11 attack) pose any threat to the continued existence and authority of the US government. But that is exactly what this line of reasoning assumes. That's what "national security threat" means.
We see this deliberate and erroneous conflation of "terrorism" and "national security" again and again in government statements and policies, and the media parrots it uncritically. Even if we believe that preventing terrorism is extremely important, terror plots and acts of terror do not generally rise to the level of "national security." Even if we accept the (extremely troubling) legal principle that the constitution may be weakened or ignored in the case of national security threats, that doesn't mean we should accept such weakening in the quest to prevent terrorism.
On the contrary, it has to do with, literally, the security of the nation itself. Nothing more or less.
We wouldn't wait to establish martial law if necessary during invasion until the government were about to fall, after all. The Confederate invasion of Pennsylvania that was stopped at Gettysburg is about as "national security" as it got for the U.S., but that never directly threatened the U.S. government itself.
"Nothing more or less" sounds so precise, but "the security of the nation" is (like "national security") so vague as to be virtually meaningless without elaboration. "National security" is often abused to mean pretty much whatever the speaker wants it to mean. But it has always been very much about the continued existence and authority of the government.
"National security" as a concept and term didn't exist in the Civil War, but the main threat to "national security" at the time was the attempted secession of several states, which, had it succeeded, would have dramatically altered the power, authority, and nature of the US government.
But it would not have altered the existence of that government. It would, on the other hand, have threatened the republican form of government which the Constitution requires the government to provide for its citizens in Article IV.
Of course, I was speaking of actual invasion anyways, not mere secession.
This point is, I think, frequently misinterpreted. It's not a defense of FISA. FISA is a terrible system and a dereliction of the duties of Congress. But it's not an intractable legal obstacle. The reason that it's difficult to engage FISA in the Supreme Court isn't that FISA is shadowy, but rather that the Constitution doesn't have much to say about foreign intelligence, and there aren't a lot of opportunities for citizens to get their hooks into FISA/NSA in order to get standing in court.
That would, of course, change rapidly if the FISA process started being used to make criminal cases in the US.
Courts of law established by the federal government must comply with Article III of the US Constitution (state courts, which is where the overwhelming majority of all controversies in the US are heard, don't need to be structured along the lines of Article III, because the US Constitution defines the federal government and not the state governments).
An Article III court is staffed with a federal judge appointed by the President (as specified in Article II) with a lifetime tenure. Article III courts "extend to all cases, in law and equity, arising under this Constitution".
FISC court judges are appointed from the federal bench (they're judges appointed by a President for a lifetime term on a federal court). But they have a limited tenure on FISC --- seven years. And unlike Article III appointments, FISC judges are appointed by the Chief Justice of the Supreme Court. And, most importantly, FISC judges do not have power that extends to all cases in law and equity under the Constitution. In fact, the only thing they're empowered to do is authorizing FISA certifications.
Things that the FISC does not appear to be able to do: hear criminal cases, sentence defendants, overturn laws, or establish precedents binding on any other court.
There are other federal courts that aren't Article III courts --- bankruptcy is one of them. Bankruptcy court judges have 14 year terms. Even though they function as part of the district court system, the Judiciary is clear that they aren't Article III judges. It's worth noting that Bankruptcy's bizarro status in the court system has also created stare decisis problems with the rest of the court system. There's little reason to believe that FISA courts, which are even further removed from Article III than Bankruptcy, would be more judicially potent.
One dispute about the Constitutional status of FISC judges arises from case law in the 1990s, wherein a defendant claimed that the FISC was a violation of separation of powers. The appellate decision ruled that FISC judges weren't violating Article III by serving on the FISC, but I dispute that the language in the decision dictates that those judges are in fact Article III judges; I think it says merely that a federal judge doesn't violate Article III by sitting on a body that is effectively an agent of Congress. If they are Article III courts, the FISC is unconstitutional (in a technical way, not a substantive way).
I'm a layperson summarizing independent research here, so I'd very much appreciate an expert's opinion on this analysis.
The FISA court has limited subject matter jurisdiction but I disagree that limited subject matter jurisdiction is impossible for an article III court. Article III says explicitly:"The judicial Power shall extend to all Cases, in Law and Equity.." not that every article III court must be empowered to hear an case whatsoever. I contend that this refers to the maximal subject matter that any article III court may consider, not that every article III court must be constitutionally empowered to consider any case that falls under Article III sec 2 requirements.
If this was the case temporary judicial courts convened for a specific purpose would be plainly unconstitutional. I am no aware of no one who considers the Court of International Trade to be an article I court because of its limited jurisdiction. It only hears customs cases by law(28 USC 255). This is exactly analogous to the FISA Court/FISCR in their limited jurisdiction.
EDIT: See Kevork 634 F.Supp. 1002 "The defendants also contend that FISA violates Article III of the Constitution because the Foreign Intelligence Surveillance Court is not a proper Article III court and because the Act delegates judicial power to the Executive Branch. In addition, the defendants argue that the structure of the FISA court denies its judges their judicial independence, making the Court a rubber stamp. These arguments were raised and rejected in... I also reject these contentions."
The court rejected the argument that the FISA court was not an article III court.
I think you and 'DannyBee have made it pretty clear that relying on the idea that the FISC isn't an Article III court is a perilous position, but I continue to be unclear on how FISC possibly could be an Article III court given its structure.
We're now in a position where the government is asking for forgiven instead of permission and that tends to result in the victim (us) being more permissive.
If they had publicly asked us (the people) to define "relevant" years ago when this question was originally on the table, then we would have struck a very different balance.
http://www.slate.com/articles/news_and_politics/chatterbox/1...
I am disgusted.