Domestic Intelligence: New Powers, New Risks

Explains how, without sufficient oversight, the 2008 Attorney General's Guidelines expand the FBI's power in countering domestic terrorism threats, undermining civil liberties and law enforcement. Calls for accountability mechanisms and limited discretio

Quasi-Constitutional Protections and Government Surveillance

The post-Edward Snowden debate over government surveillance has been vigorous. One aspect of that debate has been widespread criticism of the Foreign Intelligence Surveillance Court (FISC), alleging that the FISC served as a rubber stamp for the government, consistently accepting implausible interpretations of existing law that served to expand government surveillance authority; engaging in tortured analyses of statutory language; and ignoring fundamental Fourth Amendment principles. This Article argues that these critiques have entirely overlooked critical aspects of the FISC’s jurisprudence. A close look at that jurisprudence reveals a court that did, in fact, vigorously defend the interests customarily protected by the Fourth Amendment—individual privacy and freedom from arbitrary government intrusions into the personal sphere. Faced with government surveillance requests that posed significant privacy concerns, but for which the government was unlikely to accept “no” as an answer, the FISC resourcefully employed a familiar tool—minimization procedures (rules designed to augment privacy protections in the context of electronic surveillance)—to champion constitutional principles and preserve for itself a role in surveillance oversight while simultaneously avoiding a no-win confrontation with the executive. This creative solution took the form of a bargain: the FISC permitted the government to implement its surveillance programs, but only after embedding in those programs a set of rules protecting what I have labeled “quasi-constitutional rights.

The Two Faces of the Foreign Intelligence Surveillance Court

When former National Security Agency contractor Edward Snowden leaked a massive trove of information about secret intelligence-collection programs implemented under the Foreign Intelligence Surveillance Act in the summer of 2013, U.S. surveillance activities were thrust to the forefront of public debate. This debate included the question of whether and how to reform the Foreign Intelligence Surveillance Court (“FISA Court”), the statutorily created secret court that reviews government applications to conduct surveillance in the United States. This discussion, however, has underemphasized a critical feature of the way the FISA Court works. As this Article will show, since the terrorist attacks of September 11, 2001 (“9/11”), the FISA Court has been playing not only its traditional role of “gatekeeper,” but also the additional—and entirely different—role of “rule maker.” This is the first scholarly examination of this dichotomy and its implications for reform. Further, the Article is particularly timely in providing an assessment of the recently enacted USA FREEDOM Act of 2015, Congress’s attempt to reform the court. I argue that, viewed through the lens of the court’s dual roles, the scholarly and public conversation has fallen short in two important respects. First, it has failed to give the court sufficient credit for its laudable performance as gatekeeper, and second, it has ignored the implications that the gatekeeper/rule-maker dichotomy has for reform. As a result, I conclude that the USA FREEDOM Act is not only woefully inadequate to remedy the problems that it targets but also fails entirely to address additional problems with the FISA Court. In light of these conclusions, the USA FREEDOM Act represents a missed opportunity. In not fully appreciating or accounting for the unique challenges that the court’s rule-making function poses, the Act does not go nearly far enough in bolstering the court’s rulemaking competence. Moreover, the Act neglects (as has the public debate) a critical area for reform: ensuring sufficient flow of information from the executive branch to the FISA Court. I therefore explore the nature of this challenge and offer some additional reform ideas for consideration

Digital Searches, the Fourth Amendment, and the Magistrates\u27 Revolt

Searches of electronically stored information present a Fourth Amendment challenge because it is often impossible for investigators to identify and collect, at the time a warrant is executed, only the specific data whose seizure is authorized. Instead, the government must seize the entire storage medium and extract responsive information later, thereby ensuring that they will encounter vast amounts of non-responsive (and often intensely personal) information contained on the device. In response, some magistrate judges have begun issuing warrants that place limits on how those searches may be carried out¿a development that some have referred to as a ¿magistrates¿ revolt.¿ This Article argues that rather than ¿revolt,¿ these judges simply adopted a time-honored privacy-protection tool from the foreign intelligence collection context¿minimization¿that will allow them to draw on lessons learned in that context to safeguard Fourth Amendment rights during digital searches

Regulating Domestic Intelligence Collection

Scholars have long recognized that a Federal Bureau of Investigation wielding robust domestic intelligence-collection powers poses a threat to civil liberties. Yet the FBI’s post-9/11 mandate to prevent terrorist attacks (not merely investigate completed attacks) demands that the agency engage in broad intelligence-collection activities within the United States— activities that can threaten fundamental freedoms. This Article argues that strategies derived from administrative law principles can help alleviate the tendency of threat-prevention efforts to erode civil liberties. The fundamental problem this Article tackles is that the traditional governance mechanisms we rely upon to protect individual rights are ineffective in the domestic intelligence collection realm. This failure of traditional checks stems from, first, the absence of practical constraints to channel the enormous discretion that the Justice Department and the FBI enjoy in determining the scope and nature of the FBI’s domestic intelligence-collection activities; second, the lack of judicial or political checks on these activities, resulting in a deficit of democratic legitimacy and accountability; and third, the risk that the FBI’s singular focus on terrorism prevention will overwhelm rights-protection concerns. Drawing on principles of administrative law, this Article explains how regulatory strategies can be employed to improve governance of domestic intelligence gathering. It recommends imposing procedural requirements on the exercise of discretion, facilitating meaningful pluralist input into relevant decision making processes, and augmenting the attention given to civil liberties concerns by requiring the Justice Department to prepare Civil Liberties Impact Statements and by including in the process an entity whose primary goal is the protection of civil liberties. These governance reforms will prompt domestic intelligence regulation to take account of civil liberties while preserving the ability of law enforcement to pursue security

Weaponizing the Office of Legal Counsel

This Article argues that the Office of Legal Counsel (OLC)—an office within the Justice Department that issues legal opinions that govern executive branch actors—arms the executive branch with a powerful weapon to deploy in its conflicts with Congress. Despite its reputation as a neutral arbiter of constitutional questions, OLC’s separation-of-powers opinions do not simply describe the executive’s view of the law; they actually augment executive powers vis-à-vis Congress. This novel argument emerges from two descriptive claims laid out in this Article. The first is that OLC’s institutional design guarantees that its separation-of-powers opinions will articulate a decidedly pro-executive view of the law. The second is that these executive-friendly legal analyses not only guide the actions of executive officials, but also shape the legal landscape outside the executive branch. In other words, OLC makes its own legal reality: its separation-of-powers opinions first envision a world that values executive branch prerogatives over congressional interests, and then, by their very existence, help realize that vision. The result is that OLC provides the executive with a powerful weapon in its inter-branch disputes with Congress—a phenomenon that to date has gone unremarked. After identifying the mechanisms through which OLC places a thumb on the executive’s side of the scale in inter-branch disputes, this Article suggests several ways that Congress could level the playing field

Quasi-Constitutional Protections and Government Surveillance

The post-Edward Snowden debate over government surveillance has been vigorous. One aspect of that debate has been widespread criticism of the Foreign Intelligence Surveillance Court (FISC), alleging that the FISC served as a rubber stamp for the government, consistently accepting implausible interpretations of existing law that served to expand government surveillance authority; engaging in tortured analyses of statutory language; and ignoring fundamental Fourth Amendment principles. This Article argues that these critiques have entirely overlooked critical aspects of the FISC’s jurisprudence. A close look at that jurisprudence reveals a court that did, in fact, vigorously defend the interests customarily protected by the Fourth Amendment—individual privacy and freedom from arbitrary government intrusions into the personal sphere. Faced with government surveillance requests that posed significant privacy concerns, but for which the government was unlikely to accept “no” as an answer, the FISC resourcefully employed a familiar tool—minimization procedures (rules designed to augment privacy protections in the context of electronic surveillance)—to champion constitutional principles and preserve for itself a role in surveillance oversight while simultaneously avoiding a no-win confrontation with the executive. This creative solution took the form of a bargain: the FISC permitted the government to implement its surveillance programs, but only after embedding in those programs a set of rules protecting what I have labeled “quasi-constitutional rights.