August 09, 2014

Post-Snowden era could present more surprises ahead

A top legal counsel for U.S. national intelligence warned Friday that recent U.S. Supreme Court decisions could greatly affect collection of national security intelligence moving forward.

Robert Litt, general counsel of the Office of the Director of National Intelligence, pointed to decisions by the high court related to limiting GPS tracking and the searches of cell phones as potentially affecting national security law and information collection. Litt discussed these issues Friday at the ABA Annual Meeting in Boston. 

“I am not so confident of what the law will be tomorrow,” he said, after providing a strong defense that national security secrets disclosed by contractor Edward Snowden were collected legally by national security agencies.

In 2012, the Supreme Court held that installing a Global Positioning System tracking device on a vehicle and using the device to monitor the vehicle's movements constitutes a search under the Fourth Amendment. This past term, the high court unanimously ruled that the police need warrants to search the cellphones of people they arrest.

The latter decision was hailed as a sweeping victory for privacy rights in the digital age. Some legal observers said it likely covers searches of tablet and laptop computers, and the legal reasoning may even apply to information held by third parties like phone companies that participated in the National Security Agency’s metadata collection program.

Litt appeared on a panel, “National Security Surveillance after Snowden,” sponsored by the ABA Standing Committee on Law and National Security. He said he found “it really galling” that the intelligence gathering — which he said was all legal — was being compared to the activities of the CIA and other agencies that led to the congressional Church and Pike committees in the mid-1970s, and the establishment of the 1978 Foreign Intelligence Surveillance Act, also known as FISA.

“The people who suggest rampant lawlessness … are participating in reckless hyperbole,” Litt said.

Carrie Cordero, director of National Security Studies at Georgetown Law in Washington, D.C., outlined the evolution of FISA over four decades as well as executive orders that relate to national security collection issues. While the law exempts many U.S. rights and laws in foreign intelligence gathering, such as Fourth Amendment protections, she said intelligence gathering “activities still have to be reasonable” 

Panelist Alasdair Roberts, a law professor at Suffolk University Law School in Boston, has studied attitudes of the public in the wake of Snowden’s leaks. He has concluded that the “radical shift in government policy” and transparency that many expected have not occurred.

He said those advocating change underestimated the government’s capacity to punish leakers, and overestimated that the public would absorb disclosures from direct sources such as WikiLeaks rather than traditional media, which typically is more fair and balanced. “There is pretty strong evidence of the durability of the status quo,” he said.

One key issue ahead is legislative changes in light of Snowden’s leaks. In late July, U.S. Senate Judiciary Committee Chairman Patrick Leahy unveiled his version of an NSA reform bill to seek some middle ground between the competing interests of stakeholders such as the intelligence community, the administration and civil liberties groups. The New York Times commended the bill as “a breakthrough in the struggle against the growth of government surveillance power.”

One provision in Leahy’s bill would install an advocate for the target, something like a public defender, to challenge the government’s case. In FISA court proceedings now, the target has no representation although judges have the authority to aggressively examine the requests.

Cordero, who appeared frequently before the Foreign Intelligence Surveillance Court in her role at the Justice Department from 2003-07, cautioned against this approach. She said the government attorneys now feel an obligation to present their arguments with candor. If another party appeared on behalf of a target, she said, that “could potentially reduce the burden on the government to have a heightened degree of candor.”