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The Privacy Advisor | Who is who, and what do they do? Executive powers over surveillance, part two Related reading: OPC, OIPC find Facebook violated Canadian privacy laws

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There are any number of discussions on the news about intelligence gathering, the intelligence community, the Foreign Intelligence Surveillance Court, as well as many other agencies with three-letter acronyms. One of the problems is many people don’t know what these entities are or what they actually do, particularly in connection with cybersecurity. 

The “Who is who, and what do they do?” series examines a number of intelligence, law enforcement and other agencies and entities in an attempt to explain, based upon open-source material, who the agencies are and what they do.

One of the issues that courts have examined is the distinction between domestic criminal activity and national security issues that can also be crimes. The more important cases to consider are United States v. Brown and United States v. Butenko, which hold that the executive branch has inherent power to conduct warrantless surveillance in the foreign intelligence space. 

In Brown, the court observed that “As the Keith case teaches, in the area of domestic security, the President may not authorize electronic surveillance without some form of prior judicial approval.  However, because of the President’s constitutional duty to act for the United States in the field of foreign relations, and his inherent power to protect national security in the context of foreign affairs, we reaffirm what we held in United States v. Clay, that the President may constitutionally authorize warrantless wiretaps for the purpose of gathering foreign intelligence.” 

In United States v. Butenko, 494 F.2d 593, (3rd Cir. 1974) the 3rd Circuit, in a case involving activities of a foreign power, held “…that, in the circumstances of this case, prior judicial authorization was not required since the district court found that the surveillances of Ivanov were ‘conducted and maintained solely for the purpose of gathering foreign intelligence information.’”

As noted below, many other courts, including the Supreme Court, have noted the power of the executive branch to conduct surveillance, though the holdings are not as clear as these two cases. 

In making the case to support certain of the activities of the National Security Agency post-9/11, the Department of Justice made its case quite directly — that the foreign intelligence activities of the NSA were supported “by the well-recognized inherent constitutional authority as Commander in Chief and sole organ for the Nation in foreign affairs to conduct warrantless surveillance for intelligence purposes to detect and disrupt armed attacks on the United States.” Nevertheless, as noted above, the precise contours of this power are unclear, particularly in the domestic surveillance context or when United States citizens or residents are involved.

It is also important to note that there are statutory authorizations of executive branch foreign intelligence authority. Following the end of World War II, President Harry Truman sought the authority to reorganize certain military departments, as well as create a full-time intelligence capability. The National Security Act of 1947 did just that, and it is also an important source of authority for certain executive branch agencies in the foreign intelligence space. The law has been amended by the USA Patriot Act of 2001 and by the Intelligence Reform and Terrorism Prevention Act of 2004, creating the position of the director of national intelligence by the National Security Intelligence Reform Act of 2004.

The National Security Act of 1947 affected wholesale changes to the United States national security apparatus, including:

  • Reorganizing the intelligence community.
  • Reorganizing and creating the Department of Defense.
  • Establishing the National Security Council.
  • Establishing the Central Intelligence Agency.
  • Establishing the position of director of national intelligence who serves as the head of the intelligence community, overseeing and directing the implementation of the National Intelligence Program and acting as the principal advisor to the president, the National Security Council, and the Homeland Security Council for intelligence matters related to the national security.
  • Establishing the National Counterterrorism Center to serve as a multiagency center analyzing and integrating all intelligence pertaining to terrorism, including threats to U.S. interests at home and abroad (implementing a key 9/11 Commission recommendation).
  • Mandating the development of procedures for the disclosure of foreign intelligence information acquired in criminal investigations and for notice of criminal investigations of foreign intelligence sources.
  • Mandating the development of procedures for access to classified information.
  • Providing for presidential and congressional oversight of intelligence activities.

The act in its original form also made an important distinction that we have seen carried through other statutes, including the Foreign Intelligence Surveillance Act, as well as in the activities of the IC — a distinction between foreign and domestic intelligence. Under the act, the newly created CIA had the authority to conduct clandestine activities for foreign intelligence gathering, but it would not have police, subpoena or law enforcement powers, and the FBI received the authority to conduct domestic intelligence operations. This distinction and the differences in the legal standards are discussed below.

This authority has been frequently used in the past, and this illustrates one of the common misconceptions in this area of law — that, when President Jimmy Carter signed FISA in 1978, it created the authority for the executive branch to conduct foreign surveillance. As is illustrated by the Senate Report that accompanied FISA, as well as the findings of the Church Committee, nothing could be further from the truth. 

The Church Committee was a Senate committee that examined and documented executive branch surveillance abuses resulting from warrantless surveillance, and its findings and recommendations produced FISA. The purpose of FISA was simple: to regulate the already-existing foreign intelligence practices for the first time in a systematic way by bringing them into the light within a regulatory framework. Indeed, the FISA Senate Report noted the testimony of Attorney General Griffin Bell regarding the importance of the law: 

As Bell stated in testifying in favor of the bill: "I believe this bill is remarkable not only in the way it has been developed, but also in the fact that for the first time in our society the clandestine intelligence activities of our government shall be subject to the regulation and receive the positive authority of a public law for all to inspect."

The Senate Report then identified several findings of the Church Committee that addressed prior executive branch conduct: 

"Since the 1930s, intelligence agencies have frequently wiretapped and bugged American citizens without the benefit of judicial warrant ... [P]ast subjects of these surveillances have included a United States Congressman, Congressional staff member, journalists and newsmen, and numerous individuals and groups who engaged in no criminal activity and who posed no genuine threat to the national security, such as two White House domestic affairs advisers and an anti-Vietnam War protest group."

The application of vague and elastic standards for wiretapping and bugging has resulted in electronic surveillance, which, by any objective measure, were improper and seriously infringed the Fourth Amendment rights of both the targets and those with whom the targets communicated. The inherently intrusive nature of electronic surveillance, moreover, has enabled the government to generate vast amounts of information — unrelated to any legitimate government interest — about the personal and political lives of American citizens. The collection of this type of information has, in turn, raised the danger of its use for partisan political and other improper ends by senior administration officials. 

Lest there be any doubt, the Senate Report noted that FISA was “designed, therefore, to curb the practice by which the Executive Branch may conduct warrantless electronic surveillance on its own unilateral determination that national security justifies it.  At the same time, however, this legislation does not prohibit the legitimate use of electronic surveillance to obtain foreign intelligence information.”  

It is also important to note that, despite the executive branch’s power here, Congress also had a role in regulating the conduct:

The basis for this legislation is the understanding — concurred in by the attorney general — that even if the president has an “inherent” constitutional power to authorize warrantless surveillance for foreign intelligence purposes, Congress has the power to regulate the exercise of this authority by legislating a reasonable warrant procedure governing intelligence surveillance. 

FISA thus made two important changes to national security surveillance by the executive: It validated it but at the same time limited and structured it in ways that were intended to provide legislative (and by extension) public oversight.

These points are important to understand when one examines FISA or executive orders regarding foreign intelligence, such as EO 12333. While EO 12333 may allocate executive authority regarding foreign intelligence and FISA may permit and regulate certain forms of foreign intelligence gathering, the authority of the executive branch is not truly derivative of EO 12333 or FISA, but rather results from both Constitutional powers of the executive, as well as the National Security Act, thus at some level falling in the broader presidential power scenario outlined in "Youngstown." In essence, a distinction can and probably should,be drawn between the president’s authority noted above, and the authority of an executive branch agency, which is typically drawn from some delegation or instruction by the president, such as an executive order, legislation or other similar sources. While these two concepts intersect and are related, they are not the same, and to conflate them reflects a misunderstanding of the true source(s) of the president’s authority. Thus, while the existence of some inherent presidential authority, as well as the constitutional and statutory sources of that authority might be clear, the determination of the precise scope of presidential authority in any particular case is much less likely to be clear.

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