Warrantless Wiretapping, FISA Reform, and the Lessons of Public Liberty

Author(s): Paul M. Schwartz
Year: 2009

Abstract: The central metaphor of Stephen Holmes’s Jorde Lecture1 is a haunting one: it is of emergency room personnel taking time and care during a lifethreatening situation to follow rules. These rules are ones of medical procedure that the staff carefully learns before the emergency and then faithfully follows during it. Rules should be followed during a crisis situation, Holmes tells us, because “psychologically flustering pressures” will provoke errors without such a behavior structure in place.2
Law should play a similar role for our leaders, and it is one that becomes more, and not less, important in responding to the terrorist threat to the United States. Holmes astutely builds on his analogy to the relatively rigid protocols upon which emergency room personnel rely.3 He argues that rights embodied in law “demarcate provisional no-go zones into which government entry is prohibited unless and until an adequate justification can be given.”4 Thus, legal rights serve as “a trip-wire and a demand for government explanation.”5

This mandatory process forces the Executive to explain her behavior and to confront other views. As Holmes warns, “If a government no longer has to provide plausible reasons for its actions . . . it is very likely, in the relative short term, to stop having plausible reasons for its actions.”6 Beyond its steadying function then, law can help the Executive “to make appropriate midstream adjustments in a timely fashion” and help everyone discover mistakes.7 Legal rules help facilitate an “adaptation to reality.”8 In contrast, when executive behavior is shielded in secrecy, inordinate delays in correcting terrible mistakes may damage national security.
The Jorde Lecture by Holmes burns with the light of clear analysis and calm rationality. In this Essay, I wish to build on it by considering Holmes’s odel of “public liberty” in greater depth. Public liberty improves security by preventing policymakers from hiding errors under a veil of secrecy. It even opens up the process of debate within the executive branch itself. This Essay develops Holmes’s model by discussing how private liberty, and information privacy in particular, is a precondition for public liberty. For Holmes, private liberty is largely a negative right—a right to be free from governmental interference. In contrast, my view is that privacy is also an element of public liberty. Participation in a democracy requires individuals to have an underlying capacity for self-determination, which requires some personal privacy.
This Essay then analyzes a number of Holmesian concepts through the lens of the recent process of the amendment of the Foreign Intelligence Surveillance Act (FISA).9 Since information privacy stands at the intersection of private and public liberty, it is an ideal topic for evaluating Holmesian principles about the contribution of law during times of national emergency. This Essay considers, in particular, the Bush administration’s policies toward FISA and Congress’s amendment of this statute.
In Part I, I describe the background of FISA and the National Security Agency’s (NSA) warrantless surveillance in violation of this statute. I also discuss the amendments to FISA in the Protect America Act of 2007—a short term statutory “fix” that has expired—and the FISA Amendments Act of 2008, which remains in effect.10 In Part II, I turn to an analysis of the challenges to private and public liberty posed by the NSA’s surveillance. I organize this Part around three topics: (1) past wisdom as codified in law; (2) the impact of
secrecy on government behavior; and (3) institutional lessons. As we shall see, a Holmesian search for the wisdom previously collected in law proves quite difficult. FISA regulated some aspects of intelligence gathering and left the intelligence community entirely free to engage in others. Over time, moreover, technological innovations and altered national security concerns transformed the implications of the past policy landscape. As a result, the toughest questions, which concern surveillance of foreign-to-domestic communications, do not receive an easy answer from the past.
Regarding the impact of secrecy on government behavior, the analysis is, at least initially, more straightforward. As Holmes discusses, the Bush administration was adept at keeping secrets not only from the public and other branches of government, but from itself. Even then-Attorney General John Ashcroft faced restrictions on his ability to receive legal advice within the Department of Justice about NSA activities, the legality of which he was required to oversee. It is also striking how little Congress knew about NSA activities while amending FISA. The larger lessons, however, prove more complicated: strong structural and political factors are likely to limit the involvement of Congress and courts in this area. This Essay concludes by confronting these institutional lessons and evaluating elements of a response that would improve the government’s performance by crafting new informational and deliberative structures for it.

Keywords: privacy, NSA, FISA, wiretapping