Posted by Orin Kerr:
Is the FISA Court Issuing Anticipatory Warrants?:
http://volokh.com/archives/archive_2007_01_14-2007_01_20.shtml#1169093067
Justice Department officials gave a background briefing on the new
FISA Court/NSA arrangement that provides lots of clues about what is
happening. Here are the [1]key excerpts from the transcript of the
briefing:
I really can't get into the particulars of the orders, but just
like any orders from the FISA court, they're for a period of time.
These are orders for 90 days. There's more than one order. . . .
I will say that these are not -- these orders are not some sort
of advisory opinion ruling on the program as a whole. These are
orders that comply with the terms and requirements of the FISA
statute, just like other orders issued by the FISA court.
I will say, however, that the orders we're talking about here are
not some cookie cutter order where you can just take a book down
off the shelf with a model application and slap it together and
file it with the court.
These orders are complex. It took a long time to work on them.
People have been working very hard on this for almost two years
actually, and it has just now been approved a week ago by the judge
of the FISA court. . . .
I will say that these are complex orders, that the approach taken
in the orders is innovative, as indicated in the Attorney General's
letter. And I think beyond that, I'm not going to get into
specifics.
These orders, however, are orders that have taken a long time to
put together, to work on. They're orders that take advantage of use
of the use of the FISA statute and developments in the law. I can't
really get into developments in the law before the FISA court.
[The speed of the new process] certainly was a critical and
necessary in determining whether this was an alternative that was
available that continued to protect national security and achieve
the objectives that we're achieving. So, regardless of what
happened, that was a critical requirement, and the President and
the DNI needed to be satisfied that there wouldn't be any
significant operational impact, continue to do everything we needed
to do.
[L]et me just say that when a FISA judge approves a FISA
application, at the time he approves the FISA application, he needs
to make the determination of probable cause as provided for in the
statute. That determination is made, and that's, like any FISA
application, those requirements need to be made.
I'm not going to discuss precise modifications. Obviously the
details of the program were never publicly discussed. The general
contours of the program were, and as the letter from the Attorney
General explains, the general contours under these orders allow us
to do the same thing and to target the same types of
communications. And critically the determination was made that
operating under the orders that we've obtained here provides the
speed and agility necessary to effectively conduct that
surveillance in a way that will protect -- there's no compromise in
national security.
[The recent change in the law that helped facilitate this change
is not] a [FISA] Court of review decision. . . . [W]e take full
advantage of all the relevant case law. That includes our own
approach to the statute. That includes rulings from the FISA Court.
That includes significant precedents from the FISA Court, other
related things. But I'm obviously not in a position to discuss
every significant ruling that deals with FISA.
What's going on? As with everything about this program, we can't be
sure; we don't know the facts, so we're stuck with making
barely-educated guesses. But it sounds to me like the FISA Court
judges have agreed to issue anticipatory warrants. The traditional
warrant process requires the government to write up the facts in an
application and let the judge decide whether those facts amount to
probable cause. If you were looking for a way to speed up that process
-- and both sides were in a mood to be "innovative" -- one fairly
straightfoward alternative would be to use anticipatory warrants.
An anticipatory warrant lets the government conduct surveillance
when a specific set of triggering facts occurs. The judge agrees ahead
of time that if those facts occur, probable cause will exist and the
monitoring can occur under the warrant. The idea is that there isn't
enough time to get a warrant right at that second, so the warrant can
be "pre-approved" by the Judge and used by the government when the
triggering event happens.
I don't know if this theory is right, of course. But it seems to be
consistent with the clues in the DOJ briefing. Why are these orders
taking a lot of time to obtain? If my theory is right, it's because
the triggering facts that amount to probable cause in a terrorism
investigation presumably are complicated. There are cookie-cutter drug
cases, but I gather there aren't any cookie-cutter terrorism cases. It
probably takes a lot of negotiation with the FISA court judges to
figure out what different sets of facts they'll accept as triggering
events that satisfy probable cause. Plus, the Court might have
required review every 90 days instead of the one-year max allowed
under FISA because the FISA court judges would want to know if their
trigger is working out in its application.
What's the mystery legal development that helped make this possible?
If my guesses are on the right track, it's probably the Supreme
Court's decision in [2]United States v. Grubbs, which was handed down
on March 21, 2006. The Grubbs case is the first Supreme Court decision
approving the use of anticipatory warrants.
Anyway, that's my best guess right now. It's not a perfect fit with
all of the clues, but seems pretty close. Your thoughts?
References
1. http://www.tpmmuckraker.com/archives/002361.php
2.
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&invol=04-1414
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