A few of us just asked him to explain the memo ( “these procedures, which go beyond what is legally required”–we’re layman, translate!). Here’s his translation:
Part of the reason that this is such a mess is that nothing DOJ assumed was required (and then proceeded to “go beyond”) really was legally required. The Fourth Amendment to the Constitution prohibits unreasonable searches and seizures. A wiretap is a “search and seizure” — it captures conversations. So what the Fourth Amendment minimally proscribes is unreasonable recording of conversations. If someone is plotting against national security (by terrorism or espionage), it is perfectly reasonable to record such a conversation, whether or not you have a court order permitting it.
The Constitution only sets the threshold of what the government may do or not do; Congress is empowered in many areas to pass laws that create further restrictions. In the criminal law, that was done by Title III (18 USC 2510 et seq), which generally forbids the government in an ordinary criminal investigations to tape record conversations unless the government has first gotten a wiretap order based on a showing of probable cause to believe a crime is being committed. That, however, did not affect national security wiretapping. National security wiretapping is part of the executive branch’s defense powers, not its law enforcement powers (which are heavily regulated by the courts). Under the Constitution, courts do not have much if anything to do with national defense — under separation of powers principles, that is ceded to the executive branch.
In the Vietnam era and in Watergate, however, it emerged that presidents (most infamously, Nixon) had abused national defense powers. That is, under the guise of national security, he had intelligence agents spy on political enemies. In order to crack down on this abuse, Congress thought it would be prudent to subject to Court review the President’s national defense power to tape record potential foreign enemy spies and terrorists. It passed a law called the Foreign Intelligence Surveillance Act (FISA) in 1978, which required intelligence agents to establish to the satisfaction of a special FISA Court that there was probable cause their target was an agent of a foreign power before recording could take place. There was probably a good argument that this was an unconstitutional intrusion on the President’s national security power, but the political climate post-Watergate was not a good time to be making such arguments.
FISA, in addition to the probable cause showing, also required the executive branch to certify that it was seeking to use FISA for national security intelligence gathering purposes. The fear behind that requirement is that the government might use abuse its FISA authority. That is, in an ordinary criminal case where it did not have enough evidence to show probable cause that a crime was being committed, the government might pretend that it was doing a national security investigation under FISA just so it could get permission to record. This was a hypothetical and very silly fear: if an agent was inclined to be corrupt, it would be much easier and smarter just to make up evidence needed to establish probable cause for a regular criminal wiretap than to pretend the subject of his investigation was an agent of a foreign power; and, internally, the FBI and DOJ require a more rigorous approval process for a FISA wiretap than a criminal wiretap, so the chances of being caught would be greater.
No matter. The certification requirement was put in the statute. Soon, the government began to interpret as if it were not only a requirement to declare that the FISA wiretap was sought for intelligence (rather than criminal) purposes, but as if it actually prohibited the government from USING FISA recordings in criminal cases. It says no such thing — indeed, nothing in FISA prevents the government from using FISA recordings in criminal trials — which is important because terrorists commit lots of ordinary crimes, and prosecuting them is sometimes a very good way to stop them from blowing things up and to induce them to cooperate.
When the government started to act like there was something wrong with obtaining evidence of ordinary crimes by FISA, the federal courts naturally reacted by not only seeming to agree, but by going one better: they developed a “primary purpose” test — requiring the government to prove that its real reason for using FISA had been to conduct a national security investigation, not to build a criminal case. If the government could not prove this, the FISA intercepts could not be used as evidence.
Although it never actually happened that intercepts were suppressed, the “primary purpose” test is the law the Gorelick memo referred to when it talked about what was “legally required”. “Primary purpose” put the government in a bind: The government started to be afraid to investigate terrorists for criminal violations, because if you then also used FISA, the mere fact that you had done some criminal investigation would theoretically leave you vulnerable to the charge that you were using FISA to build the criminal case – not for the “primary purpose” of intelligence collection.
Government lawyers are usually cautious. By nature, they avoid going to the ultimate margins of what they are allowed to do. This helps them later on, when defendants claim that evidence should be suppressed, to impress the court that what they did must have been reasonable and permissible because it was less than the law would have allowed them to do. So the government put in safeguards, described in the memo, that were more hamstringing even than the primary purpose test. As the memo describes, the intelligence agents were basically not allowed to communicate with the criminal agents – they were supposed to investigate on totally separate tracks; that way, it was thought, there could be no suggestion that the FISA wiretaps had been used to build a criminal case.
In the end, this is all tragic. As the FISA Court of Review held in 2002, there was no problem with FISA intercepts being used to help criminal cases, the certification requirement was never meant to be a restriction on the use of FISA evidence, the “primary purpose” test was something that should never have been imposed by the courts, and the restrictive Justice Department safeguards – “the Wall” between criminal and intelligence agents – designed to avoid running afoul of primary purpose were utterly unnecessary. All the safeguards succeeded in doing is stopping agents from pooling information and connecting dots about people who were trying to kill us all.
Sorry this is so long and complicated, but something that takes 25 years to get this screwed up is bound to be long and complicated.