A funny thing to come out of Snowden’s recent interview with NBC News was his claim that he raised concerns about the National Security Agency’s (NSA) surveillance of US citizens through channels at the NSA, well before he began disclosing classified documents to journalists like Glenn Greenwald.
For almost a year, the NSA denied any record of Snowden speaking up, though located a single such email only following the recent television interview. It gets complicated, and very interesting, from that point.
Snowden’s Email to the NSA
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The email the NSA disclosed showed Snowden asked a fairly simple legal question arising from an NSA training session that outlined various legal authorities, from the US Constitution on down.
“I’m not entirely certain, but this does not seem correct, as it seems to imply Executive Orders have the same precedence as law,” Snowden wrote, citing a hierarchy of governing authorities referenced during the training. “My understanding is that E.O.s [Executive Orders] may be superseded by federal statute, but E.O.s may not override statute. Am I incorrect in this? Between E.O.s and laws, which have precedence?”
“Hello Ed,” came the reply from an NSA lawyer. “Executive orders . . . have the ‘force and effect of law.’ That said, you are correct that E.O.s cannot override a statute.”
What the Email Means
Based on the NSA training he was given, Snowden was questioning which carries more weight within the NSA – an actual law passed by Congress, or an order from the president (an E.O., or executive order). The answer was a bit curvy, saying that absent a specific law to the contrary, an order from the president has the force of a law.
By way of a trite illustration, if Congress passed a law requiring Snowden to eat tuna every day for lunch in the NSA canteen, he’d have to do that, even if the president ordered him to have the tomato soup instead. However, absent a law specifically telling him what to eat, the president’s order meant he would have to eat soup. Of course, if Congress did not even know of the president’s order, it could not pass a law countering it.
Back to 2006
Hold on to the Snowden question for a moment and let’s go back to 2006.
In 2006 we knew very, very little about what the NSA was doing, and knew even less about the scope and scale of their surveillance of Americans. That context is important.
General Michael Hayden, then head of the NSA, gave a talk in January 2006 at the National Press Club. Journalist Jonathan Landay started a back-and-forth with Hayden over the wording and meaning of the Fourth Amendment. Most media outlets played the story as a mockery of Hayden, claiming he did not even know what the Fourth said. MSNBC quipped, “Well, maybe they have a different Constitution over there at the NSA.”
Let’s take another look at the exchange, with a few parts highlighted:
LANDAY: I’m no lawyer, but my understanding is that the Fourth Amendment of the Constitution specifies that you must have probable cause to be able to do a search that does not violate an American’s right against unlawful searches and seizures. Do you use –
HAYDEN: No, actually – the Fourth Amendment actually protects all of us against unreasonable search and seizure.
LANDAY: But the –
HAYDEN: That’s what it says.
LANDAY: But the measure is probable cause, I believe.
HAYDEN: The amendment says unreasonable search and seizure.
LANDAY: But does it not say probable –
HAYDEN: No. The amendment says –
LANDAY: The court standard, the legal standard –
HAYDEN: – unreasonable search and seizure.
LANDAY: The legal standard is probable cause, General. You used the terms just a few minutes ago, “We reasonably believe.” And a FISA court, my understanding is, would not give you a warrant if you went before them and say “we reasonably believe”; you have to go to the FISA court, or the attorney general has to go to the FISA court and say, “we have probable cause.”
And so what many people believe – and I’d like you to respond to this – is that what you’ve actually done is crafted a detour around the FISA court by creating a new standard of “reasonably believe” in place of probable cause because the FISA court will not give you a warrant based on reasonable belief; you have to show probable cause. Could you respond to that, please?
HAYDEN: Sure. I didn’t craft the authorization. I am responding to a lawful order. All right? The attorney general has averred to the lawfulness of the order.
Just to be very clear – and believe me, if there’s any amendment to the Constitution that employees of the National Security Agency are familiar with, it’s the Fourth. And it is a reasonableness standard in the Fourth Amendment. And so what you’ve raised to me – and I’m not a lawyer, and don’t want to become one – what you’ve raised to me is, in terms of quoting the Fourth Amendment, is an issue of the Constitution. The constitutional standard is “reasonable.” And we believe – I am convinced that we are lawful because what it is we’re doing is reasonable.
Reasonable Searches Versus Warranted Searches
The full text of the Fourth Amendment is as follows, broken into two parts for our purposes here:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,
no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The reporter questioning Hayden, and most everyone else, wrongly conflates “unreasonable” with “unwarranted,” claiming that the only reasonable search is one done under a warrant. That is not true.
Cops search people and cars all the time, legally, without warrants. The same thing happens at the border with the Transportation Security Administration (TSA) and others. The New York Police Department has its infamous stop and frisk practice.
There are libraries of case law on this, and yes, courts have generally – but not always – claimed that the same probable cause required to obtain a search warrant is an implied part of a “reasonable” search.
One Supreme Court case of interest is Vernonia Sch. Dist. 47J v. Acton. The case involved a student’s refusal to submit to drug testing as a condition of playing high school sports. But take a look at the clarity of precedent in the court’s opinion (emphasis added):
Where a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing, this Court has said that reasonableness generally requires the obtaining of a judicial warrant. Warrants cannot be issued, of course, without the showing of probable cause required by the Warrant Clause. But a warrant is not required to establish the reasonableness of all government searches; and when a warrant is not required (and the Warrant Clause therefore not applicable), probable cause is not invariably required either. A search unsupported by probable cause can be constitutional, we have said, “when special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable.”
What Hayden Knew, Part I
As head of the NSA, Hayden was not an emotional man, one prone to off-the-cuff remarks, or an imprecision of language. Standing in front of the press in 2006, Hayden knew in great detail the vast scope and scale of surveillance of Americans his agency was carrying out at that very moment, even if his audience did not. Hayden had also been around Washington a long time, and knew political will fades, and winds change. He was not about to implicate himself in a violation of the constitution in front of a room full of journalists.
Hayden parsed the Fourth Amendment to maintain that under some legal opinions, a government search could be both “reasonable” and unwarranted and still be constitutional. Hayden also clearly referred to “the authorization,” said, “I am responding to a lawful order” and added that “the attorney general has averred to the lawfulness of the order.” He ended by saying “I am convinced that we are lawful because what it is we’re doing is reasonable.”
What Hayden Knew, Part II
The law, the statute Snowden asked about in his 2013 email to the NSA lawyer, as passed by Congress was clear: under the Foreign Intelligence Surveillance Act (FISA), government officials have to prove to the secret intelligence court that there was “probable cause” to believe that a person was tied to terrorism to obtain a search warrant. Warrants, FISA or otherwise, still require probable cause, precisely as the Fourth Amendment states.
But what if, standing there in 2006, guessing some or all of his NSA’s work would someday become public, Hayden knew he was covered for all the searches he was doing without warrants if he just chose his words very carefully. What if Hayden had an executive order from the president in his office safe, a secret legal memo, similar to the memos we now know of by John Yoo that explained how torture was not torture, or the one by David Barron explaining how the president ordering the drone killing of an American was not a violation of the Fifth Amendment’s guarantee of due process. Perhaps in that executive order, Hayden had laid out the legal argument that the NSA’s electronic surveillance of every American constituted a “reasonable” search under the Fourth Amendment. Reasonable searches do not require warrants. The Fourth prohibits only “unreasonable searches.” All the push and shove over unwarranted searches was just a smokescreen, a distraction for the public. It was all legal without a warrant anyway.
At that point everything Hayden said – that what the NSA was doing was lawful because it was reasonable – makes chilling sense.
What Snowden Knows
Edward Snowden and the journalists working with his materials are smart cats. Over the past year they have had a curious knack for releasing a document, watching the president lie about it (“we don’t read Americans’ emails”) and then releasing another document exposing the lie.
Does Snowden know of, or strongly suspect, there is a secret executive order legalizing everything the NSA is doing by claiming the searches are “reasonable,” and thus no warrant is needed to conduct them on a mass scale? Did something in his NSA training hint at that, and, through his email inquiry asking about the relative strength of an executive order versus a law (in the case, the FISA law requiring probable cause for warrants to be issued), was Snowden trying to tease that out of the NSA lawyer he wrote to?
Ask Obama This Question
So let’s make it simple: Journalists with access to the president, ask this question directly: Is there an executive order or other document stating that the NSA’s surveillance of US citizens is “reasonable,” and thus no warrant is required for the surveillance to continue and remain constitutional under the Fourth Amendment?
Yes or no, Mr. President. Edward Snowden and the rest of us would like to know.