The Secret NSA-Program and 2006 Patriot Act Reauthorization
In December 2005, details of a secret wiretapping program President Bush had ordered per presidential directive soon after the 9/11 attacks became public. As part of the program, the NSA had monitored large volumes of phone and email transactions between U.S. nationals and foreign individuals abroad and without FISA Court approval.279 Facing significant public outcry, the Bush administration argued that the program did not violate the rules governing foreign intelligence-related surveillance within the United States but instead provided security services with the speed and flexibility needed to detect patterns of domestic terrorist activities.280 According to the White House, the president’s power to authorize the program derived from an assortment of different constitutional, statutory, and judicial authorities: the inherent authority vested in him under Article II of the Constitution, including the commander in chief clause, was reinforced by the September 18, 2001, Authorization for the Use of Military Force (better known as AUMF), which authorized the president to “use all necessary … force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001 … in order to prevent any future acts of international terrorism against the United States.”281 In addition, Justice Department officials pointed to Katz v. United States (1967), in which the Supreme Court recognized the long-exercised right of presidents to order warrantless surveillance for national security purposes, and the FISA Court’s 2002 opinion that cited “the president’s inherent constitutional authority to conduct warrantless foreign intelligence surveillance.”282 Subsequent reports confirmed that NSA data-mining programs had sifted through large volumes of phone records and email data, but also indicated that the data were voluntarily provided by companies and remained anonymous until patterns and links had been identified.283 To be sure, in contrast to the reactive FISA system based on concrete leads and probable terrorist connections of individual suspects, the network-centric search program was a much broader but also more preventive approach.
Yet, despite this array of justifications, during the program’s initial stages, the Justice Department seemed to have considered ways to establish a legal foundation for FISA-free surveillance.284 Parts of the 2003 Patriot II draft sought to strengthen unilateral executive powers for narrow circumstances that did not require FISA approval; it further included wartime authorities for “electronic surveillance, physical searches, or the use of pen registers” for all cases in which “Congress authorizes the use of military force, or after the United States has suffered an attack creating a national emergency.”285 Another section would have expanded the president’s authority to authorize surveillance of communications between foreign powers to include spoken content.
While the Patriot II bill was never introduced in Congress—Attorney General Alberto Gonzales conceded that the administration decided against introducing legislation because it “would be difficult, if not impossible”286 to pass—lawmakers did pass other legislation that went beyond the U.S.A. Patriot Act to broaden unilateral law enforcement powers. Part of the Intelligence Authorization Act of Fiscal Year 2004, for example, authorized the wider use of administrative subpoenas (aka National Security Letters) to facilitate FBI information collection from financial institutions.287
Discovery of the secret NSA program fueled the debate over Patriot Act sunset provisions that were set to expire at the end of December 2005. While the “Gang of Eight” (the House and Senate leaders from both parties, plus the chairmen and ranking members of the House and Senate Intelligence Committees) had been regularly briefed about the NSA program, most lawmakers were kept in the dark about its existence.288 After more than ten months of intense legislative debate and White House lobbying, during which the Patriot Act was extended twice per emergency resolution, Congress finally passed the U.S.A. Patriot Improvement and Reauthorization Act in March 2006, making 14 of its 16 sunset provisions permanent. These were kept in place for its two most controversial provisions, the FISA-granted “roving” wiretaps and “tangible records” orders, now set to expire in December 2009. Furthermore, the act made permanent the “material support” clause included in the Intelligence Reform Act and also extended the FISA Court’s authority to target “lone wolf” terrorists until December 2009.
The Patriot Reauthorization Act included several new checks: National Security Letters were now subject to judicial review, if challenged by their recipients, as well as annual audits by the DOJ Inspector General. In addition, Congress would strengthen its own oversight of “sneak and peek” searches through annual reporting requirements and time restrictions. The new restraints were mostly a result of the Senate’s insistence on adding additional safeguards. By contrast, House members had approved the main provisions of the 2001 act largely unchanged as early as July 2005 and even sought to broaden surveillance and law enforcement powers.289 Initially, compromise seemed likely in July, but a bipartisan group of senators resisted White House pressure to pass the bill quickly,290 defying various attempts to break the filibuster in December and forcing fellow lawmakers to extend the act, before its enhanced version was finally passed in March 2006.291
The debates and factions that emerged over the Patriot Act renewal also carried over into negotiations about legislation designed to sanction the NSA program; the latter had been ruled illegal by a federal judge in August 2006.292 After the Republican-run Congress failed to reach a compromise before the November midterm elections, the Bush administration abruptly changed its course—now facing a more hostile, Democrat majority in both houses—and in January 2007 announced its decision to disband the NSA program. All international communications, provided there was probable cause to believe that one of the parties was affiliated with a terrorist group, would again be overseen and sanctioned by the FISA Court. While the White House succeeded in evading more restrictive legislation, this arrangement likely allowed Bush administration officials to maintain significant control over the scope of the new warrants to be issued by the secret FISA Court. The details of the arrangement remained undisclosed.293
2007 and 2008 FISA Reforms
In April 2007, the White House changed direction once again. A White House draft submitted to Congress proposed broad revisions to FISA.294 Most important, the administration sought warrantless surveillance of foreign communications in the United States. Communications referred to foreign calls and emails merely routed through the country but would also include those directed toward U.S. citizens. Representing a major change to previous policy, the surveillance targets abroad no longer had to be associated with foreign terrorism suspects or groups. According to the 66-page proposal, it would be possible to delay FISA Court notification for a week. Even if denied, and contrary to previous practices, the FBI would be able to retain all the collected information. Another controversial provision would grant immunity to those telecommunication companies that had cooperated with the Bush administration and helped implement the secret NSA program.
The chances for success were bleak, as the White House faced a Democrat-led Congress. Over the past year or so, lawmakers had spent significant time debating FISA changes but had been unable to strike a consensus. Spearheaded by the Director of National Intelligence, Mike McConnell, the White House launched a massive lobbying campaign, featuring public appeals in the form of speeches, editorials, and public hearings before the Joint Intelligence Committee.295 In his May briefing, DNI McConnell warned that the technological changes since 1978, in particular the switch from satellite communication to fiber optic cables, had disastrous effects on a FISA system designed to protect domestic phone lines based on fixed cable wires. Because international calls in 2008 were almost exclusively relayed through fiber optic cables, FISA warrants were now required for all foreign communications, even those merely routed through the United States. The result, according to DNI McConnell, was a dangerously backlogged FISA system that threatened overseas data collection.
In what turned out to be a strategic blunder, Democrat lawmakers decided to hold out for a political trade. In exchange for the legislation, they wanted access to administration