Published by Thomson West (2012)
Reviewed by Sara Aronchick Solow
David S. Kris and J. Douglas Wilson’s second edition of National Security Investigations & Prosecutions is a necessary read, or at least necessary to have in your library, for just about anyone who practices, teaches, or writes about national security law. Kris and Wilson offer what appears to be the country’s sole comprehensive treatise on the law and procedures governing national security investigations. There are at least three audiences who benefit from this work: (1) practicing attorneys in the DOJ and elsewhere in government, who can use the treatise as an operating manual of sorts; (2) law professors, who can use the treatise as a course textbook or to design curricula in national security law courses; and (3) policymakers and legislators, who can use the treatise to explore contemporary issues such as whether the government overreaches in national security investigations and prosecutions, or whether the statutory guidance provided by the Foreign Intelligence Surveillance Act (FISA) and Classified Information Protection Act (CIPA) is sufficient to protect civil liberties and criminal defendants’ rights. It is a testament to Kris and Wilson’s expertise and knowledge that they have assembled a work that will simultaneously appeal and provide significant value to all three audiences.
The treatise consists of thirty three chapters that are organized in two volumes. Chapters one through three describe the make-up of the United States intelligence community and the history of U.S. national security investigations (NSIs), from World War II through the present. These background sections will appeal most to the lay reader, but even more experienced policymakers and practitioners will appreciate Kris and Wilson’s review of how the intelligence community came to assume its current shape and how much our present system is a product of 9/11.
Chapters four through nine, twelve through fourteen, and twenty eight through thirty three, dive into deep technical detail about the FISA statute. They describe the work of the Foreign Intelligence Surveillance Court (FISC), including the procedures governing FISA applications, the meaning of “electronic surveillance” and “physical searches” under FISA, and the “minimization procedures” required of government agents under FISA, among other topics. Chapters eighteen through twenty two review other investigation techniques authorized by federal law, such as pen registers, trap and trace, and national security letters. Altogether, these chapters will find the most use in the practitioner community, as they offer a gold-mine of citations not only to statutory and regulatory provisions, but also to case law interpreting those provisions.
Chapters ten and eleven, fifteen through seventeen, and twenty two through twenty three discuss more controversial aspects of the FISA regime. They question whether the dismantling of the “FISA wall” – which once separated government officials responsible for NSIs from those responsible for law enforcement – poses constitutional problems; whether FISA’s probable cause standard complies with the Fourth Amendment; whether the statute is too restrictive of government surveillance and needs to be modernized; and whether overseas investigations under the FISA Amendment Act of 2008 are too dismissive of privacy and other federal rights. These are the chapters that will appeal most to policymakers, legislators, and legal academics.
Chapter twenty four is arguably the most provocative of the treatise, and it discusses whether law enforcement is a legitimate or productive counterterrorism tool. Kris and Wilson offer pragmatic and normative arguments for why law enforcement should be used in the service of national security, and they provide extensive anecdotal evidence to support their points. The chapter also assesses the relative benefits of the civilian justice and military commissions/law-of-war detention systems, in prosecuting terrorists. The authors demonstrate that each system has unique advantages, but they suggest that ultimately, the civilian law enforcement system has had greater success in eliciting cooperation from terrorists, as well as in obtaining convictions. This chapter appears to be an elaboration of a speech given by Kris at the Brookings Institution in 2010, which he expanded into a law review article in 2011.
Finally, chapters twenty five through twenty seven review CIPA, the federal statute that provides a procedural mechanism for determining, ahead of trial, whether a criminal defendant will make a demand for disclosure of classified information and whether that information will be deemed admissible and relevant.
The treatise is so rich with information on NSIs – from their historical development, to their technical details, to their normative and constitutional dimensions – that it is hard to do the volumes justice in a brief book review. Nonetheless, the remainder of this review will focus on three interesting themes that emerge from Kris and Wilson’s work, and it will offer a few observations regarding Kris and Wilson’s apparent stances on these topics.
First, there is a fascinating discussion in the treatise about the rise and fall of the FISA wall in the years before and after 9/11. Kris and Wilson explain that in the 1970s and 80s, the prevailing philosophy in government and in the country at large was that NSIs under FISA should be limited to those investigations whose true, essential purpose was the gathering of foreign-intelligence information. This sentiment traced back to the National Security Act of 1947, which had prescribed separate jurisdictions for the FBI and the CIA out of a fear that if the CIA were to exercise combined internal security and external intelligence functions, the United States could become like the “police” states it opposed on the international stage. Courts during the 1980s were wary of FISA applications that appeared to be driven by a prosecutorial motive, and they consistently held that while prosecutions were a permissible secondary purpose of a FISA surveillance, they could not be the primary purpose. The DOJ’s Criminal Division also worried about appearing too closely connected to the FBI. It drew up strict internal rules about when discussions with the FBI were allowed.
After 9/11, the national consensus around the need for a FISA wall began to erode. As counterterrorism became the country’s overriding priority, the public became more accepting of collaboration between the agents executing FISA and those enforcing the law. This shift was codified by the 2001 PATRIOT Act, which authorized new methods of coordination between FBI and law enforcement, as well as by a decision of the Foreign Intelligence Surveillance Court of Review in 2002, which upheld the new procedures. The FISA wall has slowly dissolved and, today, the U.S. criminal justice system is a centerpiece of the federal government’s efforts to apprehend terrorists.
The authors applaud these developments. Although they wait until chapter twenty four to fully show their hand, they make quite forceful arguments for why our civilian law-enforcement system should, in fact, be used to further counterterrorism. The authors contend that the concerns of civil libertarians, while well intentioned, turned out to be overblown. Meanwhile the terrorists we have channeled through our criminal-justice system have turned out to be essential cooperators and providers of national security information. Chapter twenty four concludes with fifteen pages of anecdotal evidence demonstrating the information that has been obtained from terrorism defendants.
A second theme that emerges in the treatise is that there is a clear distinction between criminal investigations conducted under Title III of the Omnibus Crime Control Act of 1968 (18 U.S.C. § 2510-2521) (Title III investigations), and national security investigations conducted under FISA. The latter investigations provide considerably more deference to the executive branch at every step. For instance, while both Title III and FISA require government officials to obtain ex ante permission for electronic surveillance from judicial officers, courts under Title III impose a far stricter standard of review before granting authorization. After the surveillance is complete, aggrieved parties under Title III have substantial rights to challenge the government’s conduct that are nonexistent in the FISA regime. As explained in chapter thirty one, Title III provides that the fruits of an electronic surveillance can be used in a prosecution only if the defendant is first given copies of the government’s application and the court order approving the surveillance. Additionally, the application may fall under the government’s mandatory disclosure obligations under Rule 16 of the Federal Rules of Criminal Procedure. FISA applications, meanwhile, are generally not disclosed or discoverable unless ordered so by the FISC, which is limited as to when it can order disclosure. As a practical matter, criminal defendants rarely have access to FISA applications.
Given the stark differences between the Title III and FISA regimes when it comes to the deference afforded to the executive branch, it is notable that Kris and Wilson show such unreserved support for the blurring of the FISA and law-enforcement regimes since the demise of the FISA wall.
A third theme apparent throughout the treatise is the cyclical nature of legislative and judicial branch regulation of executive branch national security activities, over the course of U.S. history. Periods marked by little oversight and regulation – during which the President and executive officials enjoy relatively free reign in conducting surveillance and searches – are often followed by periods of backlash, public critique, and the imposition of new controls. These periods, in turn, are often followed by the broadening of executive prerogative. For instance, the CIA, FBI, and NSA undertook extensive surveillance of Americans during the 1940s, 50s, and 60s, targeting everyone from KKK leaders, to members of the Communist Party, to journalists and members of Congress, to Martin Luther King, Jr. These activities were unregulated, and so the response by the legislative and judicial branches was to impose controls. First, Congress passed Title III, mandating judicial preapproval of electronic surveillance. Second, the Supreme Court decided the Keith case in 1972, interpreting Title III to extend to domestic security investigations. And third, Congress passed FISA in 1978, bringing surveillance activities aimed at foreign intelligence collection also under a system of judicial review. A similar cycle occurred after 9/11—the Bush Administration’s liberal use of the NSA to conduct warrantless surveillance was followed by public backlash and the Protect America Act and FISA Amendments Act of 2008 (FAA).
Kris and Wilson suggest that the amount of external control over executive branch activity in the national security space is just about right at present, but could perhaps use a bit of loosening. When discussing the Bush Administration’s arguments in support of “FISA modernization” – that is, modernizing the regime to free more activities from FISA’s restrictions– the authors are sympathetic. After 9/11, the Bush Administration argued that technological developments had inadvertently brought activities under FISA that were once exempted. For instance, the increasing use of cell phones instead satellite technology by foreigners to make overseas calls, or the increasing need of the federal government to work with communications providers (i.e., ISPs) located in the United States to obtain overseas communications, had meant a broadening of FISA’s scope in ways that Congress neither anticipated nor intended. The authors acknowledge the merit of these arguments and appear to support modernization efforts going forwards. Nevertheless, they point out caveats and note that the FAA of 2008 did carve out some areas of increased flexibility — for example, foreign-foreign emails no longer require FISA warrants.
There is much to applaud in Kris and Wilson’s treatise and little to criticize. The volumes are a tour de force. The authors leave the reader with not only a tremendous resource to consult when faced with questions about national security investigations, but also with a roadmap of future topics and questions to explore in greater depth, whether as legislators, policymakers, academics, and students of national security law.
(Sara Aronchick Solow is a graduate of Yale Law School and recently completed a clerkship on the Third Circuit Court of Appeals.)