The following is the first in a series of posts discussing the NSA wiretap program. The notes will appear as footnotes at the end of each portion rather than at the end. There will be four or five posts in total, spread out over the next week or so. David Kirschner is a good friend whose bio is in the second footnote.
THE NSA’s TERRORIST SURVEILLANCE PROGRAM: IS IT WORTH THE RISK?
David J. Kirschner
For years, the United States Government has engaged in covert surveillance and intelligence gathering. Among the most effective methods of conducting such surveillance is through electronic eavesdropping, which is the wiretapping of a telephone or “bugging” of a geographical location. Historically, the government has used electronic surveillance to spy on the former Soviet Union, China and a host of other countries presenting a threat or a perceived threat to our national security. However, the government has also used it against domestic political opponents who posed no national security threat. Administrations from Franklin D. Roosevelt to Richard Nixon permitted, and sometimes encouraged, government agencies to engage in gathering political intelligence. Electronic surveillance methods have also been used on members Congress, numerous non-mainstream and some mainstream political figures, and even Supreme Court Justices. In fact, in the 1960’s, the FBI created a counterintelligence program known as “COINTELPRO,” which was intended to disrupt groups and neutralize individuals deemed to be threats to national security. Targets included the Klu Klux Klan, the Black Panthers and Martin Luther King, Jr.
Obviously, such use, or rather misuse, is categorically unacceptable and unjustifiable. Traditionally, there exists a clear distinction between domestic criminal investigations and matters of involving issues of national security. The former guarantee’s protection to citizens, lawful permanent residents, and even in many cases even illegal aliens, from having evidence obtained in violation of the Fourth, Fifth and Sixth Amendments used against them in domestic criminal prosecutions. Conversely, foreign intelligence gathering has had little, if anything, to do with criminal domestic matters.
With the advent of terrorism and terrorist-related activities, however, exclusive reliance on such a distinction became problematic. Domestic terrorist activities could easily appear to be little more than another criminal case while simultaneously emblematic of an ongoing terrorist campaign against the United States on its soil. The obvious question, then, is whether proscribed conduct is a matter of national security or within the purview of the criminal justice system. If a person, citizen, permanent resident or nonresident, is charged with having violated a domestic criminal statute, they would be entitled to all constitutionally protected rights. When that person and his activities threaten our national security, however, it is an entirely different matter. Arguably then, intrusion of any constitutional safeguards, otherwise taboo in the prosecution of domestic crimes, might well be justified and may even be absolutely necessary to thwart terrorism. And so the pressing question is to what extent, if any, must we afford a foreign power or its agent’s constitutional protections who intend to bring unimaginable death and destruction to us on our soil? Before analyzing this question, however, consider how we are to handle agents of those foreign powers who are also citizens or permanent residents? Should the Justice Department’s criminal justice system have jurisdiction or the National Security Agency?
This article is adapted from a lengthier work which, outlines the United States government’s historical and traditional use of electronic surveillance, analyzes the legal issues surrounding its use in matters of national security and examines some of the legal and practical issues presented by the Foreign Intelligence Surveillance Act (FISA) and its progeny, The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT) Act. I extend my sincerest appreciation to the following law school professors whose scholarly works on this topic provided me with a comprehensive review of these issues and greatly assisted me in preparing the background and foundation of this article: Orin S. Kerr, Associate Professor of Law at George Washington University Law School and former counsel with the Computer Crime and Intellectual Property Section of the U.S. Department of Justice’s Criminal Division. Internet Surveillance Law after the USA Patriot Act: The Big Brother That Isn’t, 97 Nw. U. L. Rev 607 (2003); Peter Swire, Professor, Moritz College of Law of the Ohio State University and John Glenn Scholar in Public Policy Research. Professor Swire also served as Chief Counselor for Privacy in the U.S. Office of Management and Budget during President Clinton’s Administration and was asked by Chief of Staff John Podesta to chair a fifteen-agency White House Working Group on how to update wiretap and other electronic surveillance law for the Internet age. The System of Foreign Intelligence Surveillance Law, 72 Geo. Wash. L. Rev. (2004). Lastly, I wish to express appreciation to my former student, Desiree Cameron, for her research assistance. The views expressed herein are exclusively those of the author and do not represent or reflect the views of the Bronx County District Attorney.
David J. Kirschner is an Assistant District Attorney in Bronx County, New York, where he supervises covert investigations involving the use of electronic surveillance. As a senior member of the Investigations Division’s Rackets Bureau, Mr. Kirschner has successfully litigated cases relying upon evidence obtained through electronic eavesdropping and regularly prosecutes white collar crimes including racketeering, enterprise corruption, extortion, usury, gambling, fraud and public corruption. In addition, he frequently oversees the office’s arrest, intake and arraignment process. Mr. Kirschner also teaches trial advocacy at Hofstra Law School’s National Institute for Trial Advocacy, Cardozo Law School’s Intensive Trial Advocacy Program, and is an Adjunct Assistant Professor of Business Law with the City University of New York at Queens College and Touro College.