Chapter Two

LESSONS OF HISTORY

A. The Continuing Challenge

FOR REASONS THAT WE HAVE OUTLINED, it is always challenging to strike the right balance between the often competing values of national security and individual liberty, but as history teaches, it is particularly difficult to reconcile these values in times of real or perceived national crisis. Human nature being what it is, there is inevitably a risk of overreaction when we act out of fear. At such moments, those charged with the responsibility for keeping our nation safe, supported by an anxious public, have too often gone beyond programs and policies that were in fact necessary and appropriate to protect the nation and taken steps that unnecessarily and sometimes dangerously jeopardized individual freedom.

This phenomenon is evident throughout American history. Too often, we have overreacted in periods of national crisis and then later, with the benefit of hindsight, recognized our failures, reevaluated our judgments, and attempted to correct our policies going forward. We must learn the lessons of history.

As early as 1798, Congress enacted the Sedition Act, now widely regarded as a violation of the most fundamental principles of freedom of expression. Nor is the historical verdict kind to a wide range of liberty-restricting measures undertaken in other periods of great national anxiety, including the repeated suspensions of the writ of habeas corpus during the Civil War, the suppression of dissent during World War I, the internment of Japanese-Americans during World War II, the campaign to expose and harass persons suspected of “disloyalty” during the McCarthy era, and the widespread and unlawful spying on critics of the government’s policies during the Vietnam War.³

It is true that when the nation is at risk, or engaged in some kind of military conflict, the argument for new restrictions may seem, and even be, plausible. Serious threats may tip preexisting balances. But it is also true that in such periods there is a temptation to ignore the fact that risks are on all sides of the equation, and to compromise liberty at the expense of security. One of our central goals in this Report is to provide secure foundations for future decisions, when public fears may heighten those dangers.

With respect to surveillance in particular, the nation’s history is lengthy and elaborate, but the issues in the modern era can be traced back directly to the Vietnam War. Presidents Lyndon Johnson and Richard Nixon encouraged government intelligence agencies to investigate alleged “subversives” in the antiwar movement. The Federal Bureau of Investigation (FBI) engaged in extensive infiltration and electronic surveillance of individuals and organizations opposed to the war; the Central Intelligence Agency (CIA) monitored a broad array of antiwar organizations and activities, accumulating information on more than 300,000 people; and Army intelligence initiated its own domestic spying operation, gathering information on more than 100,000 opponents of the Vietnam War, including Members of Congress, civil rights leaders, and journalists. The government sought not only to investigate its critics on a massive scale, but also to expose, disrupt, and neutralize their efforts to affect public opinion.⁴

As some of this information came to light, Congress authorized investigating committees to probe more deeply. One Senate committee made the following findings:

The Government has often undertaken the secret surveillance of citizens on the basis of their political beliefs, even when those beliefs posed no threat of violence or illegal acts. … The Government, operating primarily through secret informants, … has swept in vast amounts of information about the personal lives, views, and associations of American citizens. Investigations of groups deemed potentially dangerous—and even of groups suspected of associating with potentially dangerous organizations—have continued for decades, despite the fact that those groups did not engage in unlawful activity. …⁵

In 1976, President Gerald Ford formally prohibited the CIA from using electronic or physical surveillance to collect information about the domestic activities of Americans and banned the National Security Agency from intercepting any communication made within, from, or to the United States, except lawful electronic surveillance under procedures approved by the Attorney General.⁶ That same year, Attorney General Edward Levi imposed new restrictions on the investigative activities of the FBI. In these guidelines, the Attorney General prohibited the FBI from investigating any group or individual on the basis of protected First Amendment activity in the absence of “specific and articulable facts” justifying a criminal investigation. Attorney General Levi adopted these guidelines without regard to whether such investigations violated the Constitution. He justified them as sound public policy and contended that the protection of civil liberties demands not only compliance with the Constitution, but also a restrained use of government power, undertaking what we would describe as a form of risk management.⁷

…

The United States has made great progress over time in its protection of “the Blessings of Liberty”—even in times of crisis. The major restrictions of civil liberties that have blackened our past would be unthinkable today. This is an important national achievement, and one we should not take for granted. But it is much easier to look back on past crises and find our predecessors wanting than it is to make wise judgments when we ourselves are in the eye of the storm. As time passes, new dangers, new technologies, and new threats to our freedom continually emerge. Knowing what we did right—and wrong—in the past is a useful, indeed indispensable, guide, but it does not tell us how to get it right in the future. One of the central goals of this Report is to suggest reforms that will reduce the risk of overreaction in the future.

B. The Legal Framework as of September 11, 2001

In the wake of the disclosures in the 1970s, several congressional committees examined the failures that led to the abuses. The most influential of those committees was the Senate’s Select Committee to Study Governmental Operations with Respect to Intelligence Activities, which issued its comprehensive Final Report in April of 1976. Known as the Church Committee, after its chairman, Senator Frank Church, this Report has shaped much of our nation’s thinking about foreign intelligence surveillance for the past 40 years.⁸

At the outset, the Committee stated unequivocally that espionage, sabotage, and terrorist acts “can seriously endanger” both the security of the nation and “the rights of Americans,” that “carefully focused intelligence investigations can help prevent such acts,” and that “properly controlled and lawful intelligence is vital to the nation’s interest.” At the same time, the Committee emphasized the dangers that “intelligence collection … may pose for a society grounded in democratic principles.” Echoing former Attorney General and Supreme Court Chief Justice Harlan Fiske Stone, the Committee warned that an intelligence agency operating in secret can “become a menace to a free government … because it carries with it the possibility of abuses of power which are not always quickly apprehended or understood.” The “critical question,” the Committee explained, is “to determine how the fundamental liberties of the people can be maintained in the course of the Government’s effort to protect their security.”⁹

Looking back over the preceding decades, the Committee noted that “too often … intelligence activities have invaded individual privacy and violated the rights of lawful assembly and political expression.”¹⁰ This danger, the Committee observed, is inherent in the very essence of government intelligence programs, because the “natural tendency of Government is toward abuse of power” and because “men entrusted with power, even those aware of its dangers, tend, particularly when pressured, to slight liberty.”¹¹ Moreover, because abuse thrives on secrecy, there is a natural “tendency of intelligence activities to expand beyond their initial scope” and to “generate ever-increasing demands for new data.”¹² And to make matters worse, “once intelligence has been collected there are strong pressures to use it.”¹³

In reviewing “the overwhelming … excesses” of the past, the Church Committee found not only that those excesses violated the rights of Americans by invading their privacy and “undermining the democratic process,” but also that their “usefulness” in “serving the legitimate goal of protecting society” was often “questionable.”¹⁴ Those abuses, the Committee reasoned, “were due in large measure to the fact that the system of checks and balances—created in our Constitution to limit abuse of Governmental power—was seldom applied to the Intelligence Community.”¹⁵

The absence of checks and balances occurred both because government officials failed to exercise appropriate oversight and because intelligence agencies systematically concealed “improper activities from their superiors in the Executive branch and from the Congress.”¹⁶ Although recognizing that “the excesses of the past do not … justify depriving the United States” of the capacity to “anticipate” and prevent “terrorist violence,” the Committee made clear that “clear legal standards and effective oversight are necessary to ensure” that “intelligence activity does not itself undermine the democratic system it is intended to protect.”¹⁷

In looking to the future, the Committee was especially concerned with the impact of new and emerging technologies. The Committee expressly invoked Justice Louis Brandeis’s famous dissenting opinion in Olmstead v. United States,¹⁸ in which the Supreme Court held in 1928, over the objections of Justices Brandeis and Oliver Wendell Holmes, that wiretapping was not a “search” within the meaning of the Fourth Amendment. In his dissenting opinion, Justice Brandeis cautioned that, since the adoption of the Constitution, “subtler and more far-reaching means of invading privacy have become available to the government … [and] the progress of science in furnishing the Government with means of espionage is not likely to stop with wiretapping.”¹⁹ The Committee observed that Brandeis’s warning applied “with obvious force to the technological developments that allow NSA to monitor an enormous number of communications each year.”²⁰

“Personal privacy,” the Committee added, is “essential to liberty and the pursuit of happiness” and is necessary to ensure “that all our citizens may live in a free and decent society.”²¹ Indeed, “when Government infringes the right of privacy, the injury spreads far beyond the particular citizens targeted to untold numbers of other Americans who may be intimidated.” The Committee added that, in the words of former Attorney General and Supreme Court Justice Robert H. Jackson, without clear legal limitations, “a federal investigative agency would ‘have enough on enough people’ so that ‘even if it does not elect to prosecute them’ the Government would … still ‘find no opposition to its policies.’”²² Indeed, Jackson added, “even those who are supposed to supervise [our intelligence agencies] are likely to fear [them].’”²³

With this warning in mind, the Committee cautioned that, “in an era where the technological capability of Government relentlessly increases, we must be wary about the drift toward ‘big brother government.’” Because “the potential for abuse is awesome,” it demands “special attention to fashioning restraints which not only cure past problems but anticipate and prevent the future misuse of technology.” To this end, “those within the Executive Branch and the Congress … must be fully informed” if they are to “exercise their responsibilities wisely.” Moreover, “the American public … should know enough about intelligence activities to be able to apply its good sense to the underlying issues of policy and morality.” “Knowledge,” the Committee insisted, “is the key to control.” Thus, “secrecy should no longer be allowed to shield the existence of constitutional, legal, and moral problems from the scrutiny of the three branches of government or from the American people themselves.”²⁴

The Committee called for “a comprehensive legislative charter defining and controlling the intelligence activities of the Federal Government.”²⁵ The Committee set forth a series of specific principles and recommendations, including the following:

…

In 1978, Congress enacted the Foreign Intelligence Surveillance Act (FISA) to implement the recommendations of the Church Committee and other congressional committees.²⁷ A central issue concerned the legality of electronic surveillance for the purpose of foreign intelligence. In 1928, the Supreme Court had held in Olmstead²⁸ that a wiretap is not a “search” within the meaning of the Fourth Amendment because it does not involve a physical intrusion into an individual’s personal property. Despite the holding in Olmstead, in the 1934 Communications Act Congress limited the circumstances in which government officials could lawfully engage in wiretaps in the context of criminal investigations.²⁹

In 1967, in Katz v. United States,³⁰ the Court overruled Olmstead, noting that the Fourth Amendment “protects people not places.” The Court reasoned that, in light of the realities of modern technology, the Fourth Amendment must be understood to protect the individual’s and society’s “reasonable expectations of privacy.” It was this holding that led to the conclusion that the Fourth Amendment prohibits the government from using wiretapping unless it first obtains a search warrant from a neutral and detached magistrate based on a finding of probable cause to believe that the interception will produce evidence of criminal conduct.

It remained unclear, however, whether that same rule would apply when the government investigates “the activities of foreign powers, within or without this country.”³¹ The general assumption was that the President has broad constitutional authority to protect the nation in the realm of foreign intelligence surveillance without complying with the usual requirements of the Fourth Amendment. It was against this background that Congress considered FISA.

FISA attempted to safeguard the nation against the kinds of abuses that had been documented by the Church Committee, while at the same time preserving the nation’s ability to protect itself against external threats. FISA was a carefully designed compromise between those who wanted to preserve maximum flexibility for the intelligence agencies and those who wanted to place foreign intelligence surveillance under essentially the same restrictions as ordinary surveillance activities (at least insofar as the rights of Americans were concerned).

To that end, FISA brought foreign intelligence surveillance within a legal regime involving strict rules and structured oversight by all three branches of the government, but also granted the government greater freedom in the realm of foreign intelligence surveillance than it had in the context of other types of surveillance.³²

FISA restricted the government’s authority to use electronic surveillance inside the United States to obtain foreign intelligence from “foreign powers.” The term “foreign powers” was defined to include not only foreign nations, but also the agents of foreign nations and any “group engaged in international terrorism.”³³ FISA established the Foreign Intelligence Surveillance Court (FISC), consisting of seven (now eleven) federal judges appointed by the Chief Justice of the United States to serve staggered terms on the FISC. FISA provided that any government agency seeking to use electronic surveillance for foreign intelligence purposes inside the United States had to obtain a warrant from the FISC. For such a warrant to be issued, the government had to show “probable cause to believe that the target of the electronic surveillance” is an agent of a foreign power.³⁴

It is important to note several significant elements to this approach. First, by requiring the government to obtain a warrant from the FISC, FISA denied the President the previously assumed authority to engage in foreign intelligence surveillance inside the United States without judicial supervision. This was a major innovation.

Second, Congress created the FISC so it could deal with classified information and programs involved in foreign intelligence surveillance. Ordinary federal courts lacked the facilities and clearances to deal with such matters. A special court was therefore necessary if such classified matters were to be brought under the rule of law.

Third, FISA did not deal with the President’s authority to engage in foreign intelligence activities outside the United States. FISA did not require the government to obtain a FISA warrant from the FISC before it could legally wiretap a telephone conversation between two Russians in Moscow or between a US citizen in France and a US citizen in England. In such circumstances, FISA left the issue, as in the past, to the Executive Branch, operating under the National Security Act of 1947,³⁵ the National Security Agency Act of 1959,³⁶ and the US Constitution.

Fourth, FISA did not limit the government’s use of electronic surveillance in the foreign intelligence context to those situations in which the government has probable cause to believe that criminal activity is afoot. Rather, FISA permitted the government to engage in electronic surveillance in the United States to obtain foreign intelligence information as long as the government can establish to the satisfaction of the FISC that it has probable cause to believe that the “target” of the surveillance is an “agent of a foreign power.”

These features of the system established by FISA reflect Congress’s understanding at the time of the central differences between electronic surveillance for foreign intelligence purposes and electronic surveillance for traditional criminal investigation purposes. But in light of past abuses, the possibility of politicization, and the decision to authorize foreign intelligence surveillance of individuals, including American citizens, for whom there is no probable cause to suspect criminal conduct, FISA instituted a broad range of safeguards to prevent misuse of this authority.

For example, FISA requires the Attorney General to approve all applications for FISA warrants; it requires the Attorney General to report to the House and Senate Intelligence Committees every six months on the FISA process and the results of FISA-authorized surveillance; it requires the Attorney General to make an annual report to Congress and the public about the total number of applications made for FISA warrants and the total number of applications granted, modified, or denied; and it expressly provides that no United States citizen or legal resident of the United States may be targeted for surveillance under FISA “solely upon the basis of activities protected by the first amendment to the Constitution of the United States.” Finally, FISA requires the use of “minimization” procedures to protect the privacy rights of individuals who are not themselves “targets” of FISA surveillance but whose conversations or personal information are incidentally picked up in the course of electronic surveillance of legitimate targets under the Act.³⁷

FISA changed only modestly from 1978 until the events of September 11, 2001. Although FISA originally applied only to electronic surveillance, Congress gradually widened its scope to other methods of investigation. In 1995, it was extended to physical searches; in 1998, it was extended to pen register and trap-and-trace orders (which enable the government to obtain lists of the telephone numbers and e-mails contacted by an individual after the issuance of the order); and in that same year it was extended to permit access to limited forms of business records, including documents kept by common carriers, public accommodation facilities, storage facilities, and vehicle rental facilities.³⁸

From 1978 until 2001, FISA offered an important legal framework designed to maintain the balance between the nation’s commitment both to “provide for the common defence” and to “secure the Blessings of Liberty.”

…

FISA is not the only legal authority governing foreign intelligence activities. Other statutes and Executive Orders address other facets of the operations of the Intelligence Community. The National Security Act³⁹ and other laws relating to specific agencies, such as the Central Intelligence Agency Act⁴⁰ and the National Security Agency Act,⁴¹ regulate what agencies can do, and the Intelligence Community is also governed by laws such as the Privacy Act⁴² and the Electronic Communications Privacy Act.⁴³

Executive Order 12333 is the principal Executive Branch authority for foreign intelligence activities not governed by FISA.⁴⁴ Executive Order 12333 specifies the missions and authorities of each element of the Intelligence Community; sets forth the principles designed to strike an appropriate balance between the acquisition of information and the protection of personal privacy; and governs the collection, retention, and dissemination of information about United States Persons (American citizens and non-citizens who are legal residents of the United States).

Executive Order 12333 authorizes the Attorney General to promulgate guidelines requiring each element of the Intelligence Community to have in place procedures prescribing how it can collect, retain, and disseminate information about US persons. The guidelines define each agency’s authorities and responsibilities. With respect to National Security Agency (NSA), for example, Executive Order 12333 designates NSA as the manager for Signals Intelligence (SIGINT) for the Intelligence Community, and the Attorney General’s Guidelines define how SIGINT may be conducted for collection activities not governed by FISA.⁴⁵

Section 2.4 of Executive Order 12333 prohibits specific elements of the Intelligence Community from engaging in certain types of activities inside the United States. The CIA, for example, is generally prohibited from engaging in electronic surveillance, and members of the Intelligence Community other than the FBI are generally prohibited from conducting non-consensual physical searches inside the United States.

As the principal governing authority for United States intelligence activities outside the United States, Executive Order 12333 requires that the collection of foreign intelligence information conform to established intelligence priorities. Under this authority, electronic surveillance of non-US Persons who are outside the United States must meet a separate set of standards. These standards and priorities are discussed in Chapter Four of this Report.

C. September 11 and Its Aftermath

The September 11 attacks were a vivid demonstration of the need for detailed information about the activities of potential terrorists. This was so for several reasons.

First, some information, which could have been useful, was not collected and other information, which could have helped to prevent the attacks, was not shared among departments.

Second, the scale of damage that 21st-century terrorists can inflict is far greater than anything that their predecessors could have imagined. We are no longer dealing with threats from firearms and conventional explosives, but with the possibility of weapons of mass destruction, including nuclear devices and biological and chemical agents. The damage that such attacks could inflict on the nation, measured in terms of loss of life, economic and social disruption, and the consequent sacrifice of civil liberties, is extraordinary. The events of September 11 brought this home with crystal clarity.

Third, 21st-century terrorists operate within a global communications network that enables them both to hide their existence from outsiders and to communicate with one another across continents at the speed of light. Effective safeguards against terrorist attacks require the technological capacity to ferret out such communications in an international communications grid.

Fourth, many of the international terrorists that the United States and other nations confront today cannot realistically be deterred by the fear of punishment. The conventional means of preventing criminal conduct—the fear of capture and subsequent punishment—has relatively little role to play in combating some contemporary terrorists. Unlike the situation during the Cold War, in which the Soviet Union was deterred from launching a nuclear strike against the United States in part by its fear of a retaliatory counterattack, the terrorist enemy in the 21st century is not a nation-state against which the United States and its allies can retaliate with the same effectiveness. In such circumstances, detection in advance is essential in any effort to “provide for the common defence.”

Fifth, the threat of massive terrorist attacks involving nuclear, chemical, or biological weapons can generate a chilling and destructive environment of fear and anxiety among our nation’s citizens. If Americans came to believe that we are infiltrated by enemies we cannot identify and who have the power to bring death, destruction, and chaos to our lives on a massive scale, and that preventing such attacks is beyond the capacity of our government, the quality of national life would be greatly imperiled. Indeed, if a similar or even more devastating attack were to occur in the future, there would almost surely be an impulse to increase the use of surveillance technology to prevent further strikes, despite the potentially corrosive effects on individual freedom and self-governance.

In the years after the attacks of September 11, a former cabinet member suggested a vivid analogy. He compared “the task of stopping” the next terrorist attack “to a goalie in a soccer game who ‘must stop every shot,’” for if the enemy “scores a single goal,” the terrorists succeed. To make matters worse, “the goalie cannot see the ball—it is invisible. So are the players—he doesn’t know how many there are, or where they are, or what they look like.”⁴⁶ Indeed, the invisible players might shoot the ball “from the front of the goal, or from the back, or from some other direction—the goalie just doesn’t know.”⁴⁷

Although the analogy might be overstated, it is no surprise that after the September 11, 2001, terrorist attacks the government turned to a much more aggressive form of surveillance in an effort to locate and identify potential terrorists and prevent future attacks before they could occur. One thing seemed clear: If the government was overly cautious in its efforts to detect and prevent terrorist attacks, the consequences for the nation could be disastrous. The challenge was, and remains, how to obtain information without compromising other values, including the freedoms that Americans, and citizens of many other nations, hold most dear.

D. The Intelligence Community

Executive Order 12333 sets forth the central objective of the nation’s Intelligence Community: “Accurate and timely information about the capabilities, intentions and activities of foreign powers, organizations or persons and their agents is essential to informed decisionmaking in the areas of national defense and foreign relations. Collection of such information is a priority objective and will be pursued in a vigorous, innovative and responsible manner that is consistent with the Constitution and applicable law and respectful of the principles upon which the United States was founded.”⁴⁸ Although the Review Group was not charged with the task of undertaking a comprehensive evaluation of all of the many and varied elements and activities of the Intelligence Community, we can offer a few general observations.

First, the collection of foreign intelligence is a vital component of protecting the national security, including protection from terrorist threats. Indeed, foreign intelligence may be more important today than ever before in our history. This is so in part because the number of significant national security and foreign policy issues facing the United States in the 21st century is large and perhaps unprecedented. These issues include the threats of international terrorism, the proliferation of weapons of mass destruction, cyber espionage and warfare, the risk of mass atrocities, and the international elements of organized crime and narcotics and human trafficking. They include as well the challenges associated with winding down the war in Afghanistan, profound and revolutionary change in the Middle East, and successfully managing our critically important relationships with China and Russia.

Most of these challenges have a significant intelligence component. Policymakers cannot understand the issues, cannot make policy with regard to those issues, and cannot successfully implement that policy without reliable intelligence. Any expert with access to open sources can provide insight on questions such as the Eurozone crisis and Japanese politics, but insights on the plans, intentions, and capabilities of al-Qa’ida, on the status of the Iranian nuclear weapons program, and on the development of cyber warfare tools by other nations are simply not possible without reliable intelligence.

A wide range of intelligence collectors, including NSA, have made important contributions to protecting the nation’s security. Notwithstanding recent controversies, and the importance of significant reforms, the national security of the United States depends on the continued capacity of NSA and other agencies to collect essential information. In considering proposals for reform, now and for the future, policymakers should avoid the risk of overreaction and take care in making changes that could undermine the capabilities of the Intelligence Community.

Second, although recent disclosures and commentary have created the impression in some quarters that NSA surveillance is indiscriminate and pervasive across the globe, that is not the case. NSA focuses on collecting foreign intelligence information that is relevant to protecting the national security of the United States and its allies. Moreover, much of what NSA collects is shared with the governments of many other nations for the purpose of enhancing their national security and the personal security of their citizens.

Third, FISA put in place a system of oversight, review, and checks-and-balances to reduce the risk that elements of the Intelligence Community would operate outside of the law. We offer many recommendations to improve the existing procedures, but it is important to note that they now include a wide range of inspectors general, privacy oversight boards, minimization procedures,⁴⁹ intensive training requirements, mandatory reviews by the Attorney General and the Director of National Intelligence, judicial oversight by the FISA Court, and regular reporting to Congress. Appendix C provides information on these oversight mechanisms.

Significantly, and in stark contrast to the pre-FISA era, the Review Group found no evidence of illegality or other abuse of authority for the purpose of targeting domestic political activity. This is of central importance, because one of the greatest dangers of government surveillance is the potential to use what is learned to undermine democratic governance. On the other hand, as discussed later in this Report, there have been serious and persistent instances of noncompliance in the Intelligence Community’s implementation of its authorities. Even if unintentional, these instances of noncompliance raise serious concerns about the Intelligence Community’s capacity to manage its authorities in an effective and lawful manner.

Fourth, many of the rules governing the actions of the Intelligence Community were amended in the wake of the attacks of September 11. Predictably, and quite properly, they were amended to give the Intelligence Community much broader authority to take action to ensure that the United States could prevent similar attacks in the future. But because we were acting in a moment of crisis, there was always the risk that the new rules—and the new authorities granted to the Intelligence Community—might have gone too far.

It is now time to step back and take stock. With the benefit of experience, and as detailed below, we conclude that some of the authorities that were expanded or created in the aftermath of September 11 unduly sacrifice fundamental interests in individual liberty, personal privacy, and democratic governance. We believe that our recommended modifications of those authorities strike a better balance between the competing interests in providing for the common defense and securing “the Blessings of Liberty to ourselves and our Posterity.”

We make these recommendations with a profound sense of caution, humility, and respect, and with full awareness that they will require careful deliberation and close attention to consequences. There is no doubt that the degree of safety and security our nation has enjoyed in the years since September 11 has been made possible in no small part by the energetic, determined, and effective actions of the Intelligence Community. For that, all Americans should be both proud and grateful. But even that degree of success does not mean that we cannot strike a better balance for the future.

 

 

³ See Frank J. Donner, The Age of Surveillance: The Aims and Methods of America’s Political Intelligence System (Knopf 1980); Peter Irons, Justice at War (Oxford 1983); William H. Rehnquist, All the Laws But One: Civil Liberties in Wartime (Knopf 1998); James Morton Smith, Freedom’s Fetters: The Alien and Sedition Laws and American Civil Liberties (Cornell 1956); Geoffrey R. Stone, Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism (W.W. Norton 2004).

⁴ See Detailed Staff Reports of the Intelligence Activities and the Rights of Americans: Book III, Final Report of the Select Committee to Study Governmental Operations with Respect to Intelligence Activities, United States Senate, 94th (Apr. 29, 1976); Robert Justin Goldstein, Political Repression in Modern America: From 1870 to the Present (Schenckman 1978); Geoffrey R. Stone, Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism, 487–500 (W.W. Norton 2004); Athan Theoharis, Spying on Americans: Political Surveillance from Hoover to the Huston Plan (Temple 1978).

⁵ See Final Report of the United States Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities. S. Rep. No. 755, 94th Cong., 2d Sess., at 5 (April 29, 1976) (Church Committee Report).

⁶ See Executive Order 11905, United States Foreign Intelligence Activities, 41 Fed. Reg. 7703 (Feb. 18, 1976).

⁷ The Attorney General’s Guidelines on Domestic Security Investigations are reprinted in FBI Domestic Security Guidelines: Oversight Hearing Before the Committee on the Judiciary, H.R., 98th Cong., 1st Sess. 67 (Apr. 27, 1983); see also Office of the Inspector General, Special Report: The Federal Bureau of Investigation’s Compliance with the Attorney General’s Investigative Guidelines ch. 2 (Sept. 2005); Geoffrey R. Stone, Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism, pp. 496–497 (W.W. Norton 2004).

⁸ Church Committee Report (April 26, 1976).

⁹ Id., at v, vii, 1, 3.

¹⁰ Id.

¹¹ Id.

¹² Id.

¹³ Id., at 4, 291–292.

¹⁴ Id.

¹⁵ Id.

¹⁶ Id.

¹⁷ Id., at 14–15, 18, 20.

¹⁸ Olmstead v. United States, 277 US 438, at 473 and 478 (1928) (Brandeis, J., dissenting).

¹⁹ Id., at 473–474 (Brandeis, J., dissenting).

²⁰ Id., at 202.

²¹ Id.

²² Id.

²³ Church Committee Report (April 1976) pp. at 290–291, quoting Robert H. Jackson, The Supreme Court in the American System of Government, 70–71 (New York: Harper Torchbook 1955).

²⁴ Id., at 289 and 292.

²⁵ Id., at 293.

²⁶ Id., at 295–339.

²⁷ 50 U.S.C. ch. 36.

²⁸ 277 US 438 (1928).

²⁹ 47 U.S.C. § 151 et seq.

³⁰ 389 US 347, 351 (1967).

³¹ United States v. United States District Court for the Eastern District of Michigan, 407 US 297, 308 (1972).

³² 124 Cong. Rev. 34,845 (1978).

³³ The Act defines “foreign power” as including, among other things, “a foreign government or any component thereof,” “a faction of a foreign nation,” “an entity that is openly acknowledged by a foreign government … to be directed and controlled by such foreign government,” “a group engaged in international terrorism,” “a foreign-based political organization,” and “an entity … that is engaged in the international proliferation of weapons of mass destruction.” 50 U.S.C. § 1801(a).

³⁴ 50 U.S.C. § 1805.

³⁵ 50 U.S.C. ch. 15.

³⁶ 50 U.S.C. § 3601.

³⁷ 50 U.S.C. § 1801.

³⁸ See 50 U.S.C. § 1842 (2008) (pen register and trap-and-trace); 50 U.S.C. § 1862(a) (2001) (business records).

³⁹ 50 U.S.C. ch. 15.

⁴⁰ 50 U.S.C. § 403a.

⁴¹ 50 U.S.C. § 3601.

⁴² 5 U.S.C. § 552(a).

⁴³ 18 U.S.C. §§ 2510–2522.

⁴⁴ Exec. Order No. 12333, 40 Fed. Reg. 235 (December 4, 1981), as amended by Executive Order 13284 (Jan. 23, 2003), and by Executive Order 13355 (Aug. 27, 2004), and further amended by Executive Order 13470 (July 30, 2008). Executive Order 12333 was first issued by President Gerald Ford as Executive Order 11905 and then replaced by President Jimmy Carter as Executive Order 12036; the current United States Intelligence Activities was signed on December 4, 1981 as Executive Order 12333 by President Ronald Reagan and updated by President George W. Bush in 2008.

⁴⁵ These Guidelines are captured in the Department of Defense Directive 5240.1-R entitled, “DOD Activities that May Affect US Persons,” including a classified appendix particularized for NSA. The guidelines are further enunciated within NSA through an internal directive, US Signals Intelligence Directive 18, commonly referred to as USSID-18.

⁴⁶ Jack Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration pp. 73–74 (W.W. Norton 2007).

⁴⁷ Id.

⁴⁸ Executive Order 12333 § 2.1.

⁴⁹ Minimization procedures govern the implementation of electronic surveillance to ensure that it conforms to its authorized purpose and scope. They require the government to “minimize” the retention and dissemination of US person information acquired by inadvertent collection. Under FISA, minimization procedures are adopted by the Attorney General and reviewed by the FISA Court. See 50 U.S.C.A. § 1801(h). See generally David S. Kris and J. Douglas Wilson, I, National Security Investigations and Prosecutions 2d pp. 321–353 (West 2012).