A War Like No Other (42 page)

11
. Ibid., 33–39.

12
. Ibid., 25–26.

13
. Harry Kalven Jr.,
A Worthy Tradition: Freedom of Speech in America,
ed. Jamie Kalven (New York: Harper & Row, 1988), 120.

14
. 395 U.S. 444 (1969).

15
.
Confirmation Hearing on the Nomination of John G. Roberts, Jr. to Be Chief Justice of the United States: Hearing Before the S. Comm. on the Judiciary,
109th Cong. 144–45 (2005) (statement of Senator Arlen Specter, chairman, Senate Committee on the Judiciary) (asking Judge Roberts whether
Roe v. Wade
qualified as a “super-duper precedent in light . . . of 38 occasions to overrule it”).

16
.
Brandenburg,
395 U.S. at 447.

17
. See Kalven, chap. 8, n13, 119–236.

18
. 376 U.S. 254 (1964).

19
.
Sullivan,
376 U.S. at 270–71.

20
.
Humanitarian Law Project,
561 U.S. at 39.

21
. See generally Lloyd Corp., Ltd. v. Tanner, 407 U.S. 551 (1972) (holding that protesters dispersing handbills within a shopping center did not have First Amendment right to do so when alternative means—the sidewalks outside—were available).

22
.
Humanitarian Law Project,
561 U.S. at 38.

23
. Ibid., 28.

24
. Ibid., 36.

25
. Ibid., 37 (internal quotation marks omitted).

26
. Ibid. (internal quotation marks omitted).

27
. Ibid., 15.

28
. Ibid. (internal quotation marks omitted).

29
. Ibid., 24.

30
. Ibid., 36.

31
. Ibid., 37–38.

32
. Ibid., 37.

33
. Dombrowski v. Pfister, 380 U.S. 479, 489 (1965). See also Owen Fiss, “Dombrowski,”
Yale Law Journal
86 (1977): 1103–64.

34
.
Humanitarian Law Project,
561 U.S. at 26–27.

35
. 391 U.S. 367 (1968).

36
. 403 U.S. 15 (1971).

37
.
Humanitarian Law Project,
561 U.S. at 42 (Breyer, J., dissenting).

38
. Ibid., 2740.

39
. The citation was introduced by the signal “
Cf
.”
Humanitarian Law Project,
561 U.S. at 57. This signal expresses an equivocation likely to be missed by the ordinary reader of the
United States Reports. The Bluebook
says that “
cf
.” supports a “proposition different from the main proposition but sufficiently analogous to lend support.”
The Bluebook
continues that “[l]iterally, ‘
cf
.’ means ‘compare.’”
The Bluebook: A Uniform System of Citation,
19th ed. (Cambridge, MA: Harvard Law Review Association, 2010), R. 1.2(a), 55.

40
.
Humanitarian Law Project,
561 U.S. 38 (majority opinion).

41
. Ibid.

42
. Ibid.

43
. Ibid.

44
. See generally Geoffrey R. Stone,
Perilous Times: Free Speech in Wartime
(New York: W.W. Norton, 2004); Harry Kalven Jr., “Foreword: Even When a Nation Is at War,”
Harvard Law Review
85 (1971): 3–37.

45
.
Humanitarian Law Project,
561 U.S. at 40.

46
. Ibid., 38.

47
. See Bruce Ackerman,
Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism
(New Haven, CT: Yale University Press, 2006), 171 (providing chart defining types of conflicts).

48
. See chapter 6, “Imprisonment Without Trial.”

Chapter 9: Warrantless Wiretapping

This chapter is based on Owen Fiss, “Even in a Time of Terror,”
Yale Law & Policy Review
1 (2012): 1–31.

1
. Communications Act of 1934, Pub. L. No. 73-416, § 605, 48 Stat. 1064, 1103–4 (codified as amended at 47 U.S.C. § 605 [2012]).

2
. Compare Nardone v. United States, 302 U.S. 379, 381–83 (1937) with
To Authorize Wire Tapping: Hearings on H.R. 2266 and H.R. 3099 Before Subcomm. No. 1 of the H. Comm. on the Judiciary,
77th Cong. 17–18 (1941).

3
. Katz v. United States, 389 U.S. 347 (1967).

4
. James Risen and Eric Lichtblau, “Bush Lets U.S. Spy on Callers Without Courts,”
New York Times,
December 16, 2005,
www.nytimes.com/2005/12/16/politics/16program.html
(correction appended).

5
. Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95-511, 92 Stat. 1783 (codified as amended in scattered sections of 8, 18, and 50 U.S.C. [2012]).

6
. Provision was also made for review of the decisions of individual judges by a specially designated three-judge appellate court. Given the secretive nature of the FISA proceedings, this right of review is available only to the government.
Id
.§ 1803(b).

7
. Ibid., § 1801(e).

8
. See
Wartime Executive Power and the National Security Agency’s Surveillance Authority: Hearing Before the S. Comm. on the Judiciary,
109th Cong. 10–15 (2006),
www.gpo.gov/fdsys/search/pagedetails.action?granuleId=CHRG-109shrg27443&packageId=CHRG-109shrg27443
.

9
. President George W. Bush, “Statement on Signing the Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006,” December 30, 2005, available at
www.presidency.ucsb.edu/ws/index.php?%20pid=65259
.

10
. 153 Cong. Rec. 1380–81 (2007).

11
. “Your World with Neil Cavuto,” Fox News television broadcast, July 31, 2007, transcript available at
www.foxnews.com/story/2007/08/01/house-minority-leader-john-boehner-on-dow-jonesnews-corp/
(quoting John Boehner’s understanding that, according to a judge, FISA “prohibit[ed] the ability of our intelligence services and our counterintelligence people from listening in to two terrorists in other parts of the world where the communication could come through the United States”); see also Mark Hosenball, “An ‘Intel Gap’: What We’re Missing,”
Newsweek,
August 6,
2007, 9 (“[I]ntel-collection officials concluded that FISA court authorizations should be obtained to eavesdrop not just on messages where at least one party is inside the country, but also for eavesdropping on messages between two parties overseas that pass through U.S. communications gear.”).

12
. Greg Miller, “New Limits Put on Overseas Surveillance,”
Los Angeles Times,
August 2, 2007,
articles.latimes.com/2007/aug/02/nation/na-spying2
(quoting officials confirming that FISA affected cases “ ‘where one end is foreign and you don’t know where the other is’—meaning warrants would be required even when it was unclear whether communications were crossing the United States or involved a person in the United States”).

13
. Joby Warrick and Walter Pincus, “How the Fight for Vast New Spying Powers Was Won,”
Washington Post,
August 12, 2007,
www.washingtonpost.com/wp-dyn/content/article/2007/08/11/AR2007081101349.html
(“The decisions had the immediate practical effect of forcing the NSA to laboriously ask judges on the Foreign Intelligence Surveillance Court each time it wanted to capture such foreign communications from a wire or fiber on U.S. soil.”).

14
. See U.S. Department of Justice, “Fact Sheet: Title IV of the Fiscal Year 2008, Intelligence Authorization Act, Matters Related to the Foreign Intelligence Surveillance Act,” news release, April 13, 2007,
www.justice.gov/opa/pr/2007/April/07_nsd_247.html
.

15
. Protect America Act of 2007, Pub. L. No. 110-155, 121 Stat. 552 (codified at 50 U.S.C. §§ 1801, 1803, 1805 [2012]).

16
. FISA Amendments Act of 2008, Pub. L. No. 110-261, 122 Stat. 2436 (codified at 50 U.S.C. § 1881a [2012]).

17
. FISA Amendments Act Reauthorization Act of 2012, Pub. L. No. 112-238, 126 Stat. 1631 (codified in scattered section of 18 and 50 U.S.C.).

18
.
Nomination of Eric H. Holder, Jr., Nominee to Be Attorney General of the United States: Hearing Before the S. Comm. on the Judiciary,
111th Cong. 104 (2009).

19
. Amnesty Int’l USA v. Clapper, 638 F.3d 118 (2d Cir. 2011).

20
. Clapper v. Amnesty Intl. USA, 133 S. Ct. 1138 (2013).

21
. 389 U.S. 347 (1967).

22
. 277 U.S. 438 (1928).

23
. 389 U.S. at 361 (Harlan, J., concurring).

24
. Ibid., 358 (majority opinion).

25
. Ibid., 356–57.

26
. Ibid., 358n23.

27
. Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, 82 Stat. 197 (codified in scattered sections of 5, 18, and 42 U.S.C. [2012]).

28
. Ibid., § 2511.

29
. United States v. U.S. District Court (Keith), 407 U.S. 297 (1972).

30
. Ibid., 319.

31
. Ibid., 321–22.

32
. Ibid., 309n8.

33
. Ibid., 308.

34
. See, e.g., United States v. Duggan, 743 F.2d 59 (2d Cir. 1984); United States v. Nicholson, 955 F. Supp. 588 (E.D. Va. 1997).

35
. See, e.g., United States v. Pelton, 835 F.2d 1067, 1075–76 (4th Cir. 1987).

36
. Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act) of 2001, Pub. L. No. 107-56, 115 Stat. 272 (codified in scattered sections of 8, 12, 15, 18, 20, 31, 42, 47, 49, and 50 U.S.C. [2012]).

37
. See FISA Amendments Act of 2008, 122 Stat. at 2437).

38
. 50 U.S.C. § 1802(a)(1) (2012).

39
. Ibid., § 1881a(a)–(g).

40
. See William C. Banks, “Programmatic Surveillance and FISA: Of Needles in Haystacks,”
Texas Law Review
18 (2010): 1633, 1635 (“The [2008 statute] codified a procedure to permit broad, programmatic surveillance focused on patterns of suspicious activities and not on a specific individual or the contents of their communications through changes in FISA that overcame the case-specific orientation of the original statute.”).

41
. 50 U.S.C. § 1881a(a)–(g).

42
. Intelligence Reform and Terrorism Protection Act of 2004, Pub. L. No. 108-458, 118 Stat. 3638 (codified in scattered sections of 42 and 50 U.S.C. [2012]).

43
. Ibid., § 1071(e).

44
. 50 U.S.C. § 1881a(a).

45
. Ibid., § 1881a(a)–(g).

46
. Ibid., § 1881a(i)(3).

47
. Ibid., § 1881a(i)(1)(B).

48
. Inspector General Act of 1978, 5 U.S.C.A. App. 3 (2010).

49
. 50 U.S.C. § 1881a(l)(2).

50
. Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring).

51
. For example, in
Berger v. New York,
388 U.S. 41 (1967), the Supreme Court overturned a bribery conviction based on evidence obtained without a warrant that met the Fourth Amendment standards of particularity. The Court also declared unconstitutional on its face the New York statute that established the scheme governing electronic surveillance under which the warrant was issued for failing to include a sufficient particularity requirement.

52
. Some have suggested that FISA’s qualification of the probable cause requirement does not go far enough, and that further qualification or even elimination of that requirement would improve the statute (or replacement legislation). See, e.g., Stephanie Cooper Blum, “What Really Is at Stake with the FISA Amendments Act of 2008 and Ideas for Future Surveillance Reform,”
Boston University Public Interest Law Journal
18 (2009): 269, 291–94, 308–12.

53
. Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2088, n. 3 (2011) (Ginsburg, J., concurring
in the judgment). In response to Justice Ginsburg’s observation, Justice Antonin Scalia indicated that he had a looser conception of probable cause, one that required “individualized suspicion,” but not tied to criminality. The case involved the arrest and imprisonment of an individual as a material witness. Scalia said: “No usage of the word is more common and idiomatic than a statement such as ‘I have a suspicion he knows something about the crime,’ or even, ‘I have a suspicion she is throwing me a birthday party.’” Ibid., 2082n2. Scalia did not offer any evidence, as might be expected from an Originalist, indicating that this contemporary or idiomatic usage was intended by the framers of the Fourth Amendment. In any event, Justice Scalia’s understanding of probable cause should not be read as an authoritative gloss on the Fourth Amendment. Speaking for a majority, he held that when an individual is arrested and imprisoned as a material witness and the arrest warrant is based on a showing of probable cause, the motivation of the government in obtaining the warrant is irrelevant. The lawyers representing the individual arrested conceded that the warrant was valid and they did not object to the validity of the statute under which it was issued. For that reason, Justice Scalia did not rule on the validity under the Fourth Amendment of the warrant or of the statute authorizing it. This limitation on Scalia’s opinion was emphasized by Justice Kennedy in a concurrence, which was joined by Justice Ginsburg as well as Justices Breyer and Sotomayor. Justice Kagan did not participate in the case.