An article published by The Intercept this week revealed that the government has conducted surveillance of several prominent American Muslims—including a former official in the Department of Homeland Security, a professor at Rutgers University, and the executive director of the largest Muslim civil rights organization in the country.
The surveillance—apparently conducted under the Foreign Intelligence Surveillance Act (FISA)—is troubling for many reasons. It is also a reminder that even targeted surveillance authorities like FISA can be abused.
(Read our first reaction to The Intercept story here.)
Ordinarily, we rely upon checks and balances to prevent lawful powers from being put to illegal ends. But with surveillance conducted in the name of national security, we have for far too long given the government a free pass on the most important of safeguards: the right to “notice”—which entitles surveillance victims inside the country to learn, at some point, about the government’s monitoring of them.
Without notice, the government’s surveillance activities rarely get challenged, and without the prospect of pushback, those powers are all too likely to be misused.
Imagine if the NSA had known it would have to at some point notify the head of a large civil rights organization that the government had monitored his emails. Would the NSA have initiated the surveillance?
The Foreign Intelligence Surveillance Act
Typically, when the government wants to monitor the communications of someone inside the United States, it must obtain a warrant from a court based upon probable cause to believe that the individual has committed or is about to commit a crime.
What’s more, if your communications are monitored in this way, you are generally entitled to learn about it—if not right away, then at least once the need for secrecy has subsided. In the language of the law, you are entitled to “notice.” This is generally true even if you are not the intended target.
In the 1970s, however, Congress enacted FISA, which carved out an exception to both of these constitutional rules for cases in which the government is trying to gather “foreign intelligence information.”
FISA permits the government to obtain a surveillance order from a secretive court—known as the Foreign Intelligence Surveillance Court (FISC)—if it can demonstrate probable cause to believe that its target is “an agent of a foreign power.”
The definition of “an agent of a foreign power” is somewhat complicated, and it is different for U.S. citizens or legal residents than it is for foreigners abroad. Roughly speaking, though, it refers to individuals working at the behest of foreign powers, which are broadly defined to include foreign governments, terrorist groups, and “foreign-based political organizations.” A foreign-based political organization could be anything from the Muslim Brotherhood to perhaps even Amnesty International.
For U.S. citizens or residents to qualify as agents of a foreign power, there must be some tie to criminal activity, but that requirement is lower than probable cause, which is the traditional standard the government must satisfy before spying on Americans.
Why notice matters
As mentioned above, FISA surveillance differs from traditional law-enforcement wiretaps in another significant way: The government does not have to give you notice of FISA surveillance unless it intends to use the fruits of the surveillance against you.
There is a long tradition in our constitutional system of requiring the government to notify you when it has searched your house or wiretapped your phone calls. Notice can sometimes be delayed—to protect an ongoing investigation, for example—but it has always been required at some point, because notice is essential to accountability.
If the government illegally monitors your calls, there must be a mechanism for accountability. Otherwise the government has little incentive to resist its impulse—understandable as it may be—to do everything possible to advance its investigations. It will have little incentive to avoid the kinds of abuses that were common in the 1960s and 1970s, including the monitoring of civil rights groups and activists for political purposes.
How can we trust that the surveillance was proper if the victim of it never has a chance to challenge the government’s case? If we have learned anything from the Snowden files, it is that secret rulings on our constitutional rights generally do not produce results we should trust.
Meaningful transparency is essential to our system of checks and balances. And when it comes to surveillance inside the country, one of the most important forms of transparency is notice—so that those affected by government overreach can push back when necessary.
N.B.: The government apparently claims that it did not have a FISA order targeting one of the men profiled in The Intercept’s story. It is possible, for example, that the individual was targeted without a warrant under the Bush Administration’s warrantless wiretapping programs. Even if so, the rules concerning notice would have been the same as under FISA. That is, no notice would have been provided.