Posted by Orin Kerr:
My Analysis of the Oregon FISA Decision:
http://volokh.com/archives/archive_2007_09_23-2007_09_29.shtml#1190858591
Yesterday, Judge Aiken of the U.S. District Court in Oregon handed
down [1]a decision that strikes down Foreign Intelligence Surveillance
Act's provisions for granting warrants. In this post, I wanted to
explain the issue in the case and the decision's reasoning, and then I
wanted to offer some commentary on the decision. My bottom line: I
found Judge Aiken's decision unpersuasive on the question of Article
III standing. On the merits of the Fourth Amendment issue, I think the
law is just too murky to call this one way or the other: Judge Aiken's
view is plausible, although so is the contrary view embraced in 2002
by the Foreign Intelligence Court of Review.
1. Statutory Background
First, some background. The Foreign Intelligence Surveillance Act is
the law the government uses to get warrants to monitor suspects
terrorists and spies inside the United States. Before the Patriot Act,
the government could obtain a FISA warrant to search or monitor
someone based on a probable cause showing that the person "is a
foreign power or an agent of a foreign power and that the primary
purpose of the surveillance is to obtain foreign intelligence
information." The basic idea was that the government had to believe
the person was a spy or terrorist (an agent of a foreign power) and
that the real reason behind the evidence collection had to be to to
protect national security by having the information (that is, so the
government can know what the spies and terrorists are doing).
The Patriot Act changed that standard, and it's those changes that
are the issue in the new case. The Patriot Act changed the language so
that the standard for obtaining a evidence is probable cause showing
that the person "is a foreign power or an agent of a foreign power and
that a significant purpose of the surveillance is to obtain foreign
intelligence information." The difference is subtle: the change from
"the primary" to "a significant."
Why the change? The basic idea is to allow the government can get a
warrant to monitor spies and terrorists without knowing ahead of time
whether it wants to just collect information and keep it or whether it
wants to bring a criminal prosecution. Before the Patriot Act, the
government had to choose at the beginning whether to take the criminal
law route with traditional warrants (based on probable cause that the
search would reveal evidence of a crime) or whether to take the FISA
route and collect evidence to learn of terrorist plans without
thinking about a possible criminal prosecution.
After the Patriot Act, the government can get a FISA warrant in a
terrorism investigation and keep open whether it wants to treat the
case as a crimal case or an intelligence case. The intelligence
information can go to the intelligence agencies, and the evidence of
crime can go to the criminal investigators.
The Fourth Amendment issue raised in the Mayfield case is whether a
warrant issued under the amended Patriot Act standard is good enough
for Fourth Amendment purposes or whether it is too "loose" a standard
to make FISA searches constitutionally reasonable.
2. The Mayfield Case
This case is a civil lawsuit by [2]Brandon Mayfield, an Oregon
attorney who was surveilled and lated arrested and detained for two
weeks as part of an investigation into the 2004 Madrid train bombings.
It turned out that Mayfield had nothing whatsoever to do with the
bombings, and he was released. After he was released, he sued the
government on a range of claims. The only issue left at this stage of
the game is Mayfield's Fourth Amendment claim.
Mayfield's Fourth Amendment claim is somewhat unusual. He does not
argue that the government violated FISA when it obtained orders to
monitor him and search his home. Nor does he argued that his
particular Fourth Amendment rights were violated in an as applied
manner, the usual argument in Fourth Amendment cases. Rather, he
argues that the Patriot Act amendments to the Foreign Intelligence
Surveillance Act made FISA warrants constitutionally inadequate as
facial matter, such that the FISA warrants that were used to authorize
surveillance of him were unlawful. This particular opinion concerns
Mayfield's request for declaratory judgment that the Patriot Act
amendments to FISA are constitutionally inadequate under the Fourth
Amendment.
Judge Aiken granted the request, and struck down what is really the
heart of FISA -- the provisions allowing the FISA court to issue
search warrants both for physical searches and for electronic
surveillance. There were two main issues in the opinion: First, did
Mayfield have standing under Article III to bring the case, and
second, did the FISA law actually violate the Fourth Amendment.
a) Standing
Judge Aiken ruled that Mayfield did have standing to challenge the
facial constitutionality of FISA because the government retained
derivative evidence from the wiretapping against him. That is, the
government still had in its files records of items that had been
collected from him. According to Judge Aiken, this continuing
possession of information in their files established an ongoing injury
in fact. Further, the injury in fact would be cured if Mayfield won
the case, Judge Aiken ruled: "it is reasonable to assume that [if
Mayfield wins,] the Executive Branch of the government will act
lawfully and make all reasonable efforts to destroy the derivative
materials when a final declaration of the unconstitutionality of the
challenged provisions is issued." According to Judge Aiken, the
government's possession of derivative evidence and the possibility
they would be destroyed if Mayfield won conferred Article III
standing.
b) The Fourth Amendment
Judge Aiken then reaches the merits, and concludes that the Fourth
Amendment does not permit the government to obtain warrants based on
probable cause to believe that a person is an agent of a foreign power
if foreign intelligence collection is only a significant purpose of
the monitoring. This standard lets the government search the homes and
listen in on the calls of terrorist suspects and spies when the
government is planning on bringing a criminal prosecution in the case.
But that's not good enough, Judge Aiken concludes: If the government
is really approaching an investigation of a terrorist suspect or spy
with an eye to charging them with a crime, they need to follow the
traditional criminal law standard for a warrant. That is, they need to
obtain a warrant under the standard of probable cause to believe a
crime was committed, not probable cause to believe the person is a
terrorist or a spy.
Judge Aiken notes that her conclusion is contrary to the legal
ruling of the Foreign Intelligence Surveillance Court of Review
decision in [3]In Re Sealed Case. She concludes that In re Sealed Case
is incorrect, and that the FISCR's analysis is unpersuasive. Because
the current version of FISA adopts the Patriot Act standard, the
provisions of FISA that authorize FISA warrants to be issued are
invalid.
To read my own analysis of the Mayfield decision, click here.
3. My Take
There are two issues here, standing and the Fourth Amendment. I am
no standing expert, but Judge Aiken's analysis of standing and ripness
seemed quite weak and unpersuasive to me. On the other hand, I thought
her Fourth Amendment analysis was plausible on existing precedents but
that the issue was too murky to call one way or the other.
a) Standing
I find myself puzzled by Judge Aiken's view that Mayfield has
standing to bring a facial challenge to FISA because the government
apparently coninues to possess "derivative evidence" of the earlier
FISA searches. As I understand it, the claim is that there are
government agencies that still have files on Mayfield that contain
information about the monitoring and searching of him. I'm not a
standing expert, but I don't understand why that could be a continuing
injury in fact: what is the "concrete" and "particularized" injury to
Mayfield if somewhere there is a file that has information about him?
Under Judge Aiken's approach, it would seem that everyone who was
investigated in the past has ongoing injury in fact: Investigators
keep files, and those files say what the investigators learned. Does
the fact that somewhere some government computer has a record create
an ongoing, concrete, and particularized injury in fact? I find this
unlikely. (As an aside, I wonder how this applies to human memory. If
an agent remembers what he saw inside Mayfield's house, does the
presence of that memory, stored as a network of neurons in the
"computer" of the agent's mind, create an ongoing injury in fact?)
I was particularly unpersuaded by Judge Aiken's conclusion that it
is "likely, as opposed to merely speculative, that the injury will be
redressed by a favorable decision," as required for standing by Lujan.
Judge Aiken's theory here is obviously speculative: she hypothesizes
that "it is reasonable to assume that [if Mayfield wins,] the
Executive Branch of the government will act lawfully and make all
reasonable efforts to destroy the derivative materials when a final
declaration of the unconstitutionality of the challenged provisions is
issued."
But why? I don't think I have ever heard of "purge of the files" as
a Fourth Amendment remedy. True, Rule 41 of the Federal Rules of
Criminal Procedure permits a suspect to file a motion for return of
property unlawfully seized by a warrant search; if granted, the remedy
is return of the property. But I don't think I have ever heard of the
government actually purging its files of all evidence or derivative
evidence from a search -- every report, every mention, etc. The
standard available remedies in Fourth Amendment cases are suppression
of evidence and civil damages: Is there now some kind of
Constitutional requirement that all data collected has to be deleted,
as well? Perhaps legislatures or courts should create such a
requirement -- very interesting question, I think -- but Judge Aiken's
speculation that the government would sort of "do the right thing" and
delete the files struck me as notably speculative.
b) The Fourth Amendment
The Fourth Amendment issues here are trickier, I think. My tentative
bottom line is that this issue is just really murky and there is no
clearly correct answer: reasonable minds can differ.
Why do I think that? The problem is the fundamental murkiness of the
U.S. Supreme Court's decision in [4]the Keith case in 1972. It's one
of these early 70s Powell opinions that leaves you scratching your
head as to what it means. (Powell had just become a Judge, and I think
his early opinions in particular reflect him struggling with the
craft.) In that case, the U.S. Supreme Court held that if the
government wants to wiretap members of a purely domestic group for
national security reasons -- that is, a group unrelated to any foreign
power -- it needs a warrant but the warrant doesn't need to be a
traditional criminal law warrant. Some kind of "reasonable" warrant
procedure was enough.
[W]e do not hold that the same type of standards and procedures
prescribed [in criminal cases under the Wiretap Act, known as
"Title III"] are necessarily applicable to this case. We recognize
that domestic security surveillance may involve different policy
and practical considerations from the surveillance of "ordinary
crime." The gathering of security intelligence is often long range
and involves the interrelation of various sources and types of
information. The exact targets of such surveillance may be more
difficult to identify than in surveillance operations against many
types of crime specified in Title III. Often, too, the emphasis of
domestic intelligence gathering is on the prevention of unlawful
activity or the enhancement of the Government's preparedness for
some possible future crisis or emergency. Thus, the focus of
domestic surveillance may be less precise than that directed
against more conventional types of crime.
Given these potential distinctions between Title III criminal
surveillances and those involving the domestic security, Congress
may wish to consider protective standards for the latter which
differ from those already prescribed for specified crimes in Title
III. Different standards may be compatible with the Fourth
Amendment if they are reasonable both in relation to the legitimate
need of Government for intelligence information and the protected
rights of our citizens. For the warrant application may vary
according to the governmental interest to be enforced and the
nature of citizen rights deserving protection.
. . . It may be that Congress, for example, would judge that the
application and affidavit showing probable cause need not follow
the exact requirements of § 2518, but should allege other
circumstances more appropriate to domestic security cases; that the
request for prior court authorization could, in sensitive cases, be
made to any member of a specially designated court (e.g., the
District Court for the District of Columbia or the Court of Appeals
for the District of Columbia Circuit); and that the time and
reporting requirements need not be so strict as those in § 2518.
The FISA statute is dealing with a slightly different issue: It is
dealing with warrants for "foreign" intelligence collection, not
"domestic" intelligence collection, the issue in the Keith case. The
U.S. Supreme Court has never decided whether some kind of warrant is
needed for the collection of foreign intelligence collection, and if
so, what kind of warrant is needed. There are some pre-FISA circuit
court precedents that allow totally warrantless monitoring in some
circumstances, but they don't address the constitutionality of the
FISA standard under Keith.
But you can see the murkiness of the issue: According to Justice
Powell's reasoning in Keith, the government needs to chose a legal
standard that is "reasonable both in relation to the legitimate need
of Government for intelligence information and the protected rights of
our citizens. For the warrant application may vary according to the
governmental interest to be enforced and the nature of citizen rights
deserving protection." That doesn't give us much guidance at all, so
it's not too surprising that you would have disagreement as to whether
the Patriot Act's standard is permitted. The Foreign Intelligence
Court of Review reached one conclusion; Judge Aiken reached another;
and I don't think the existing legal materials really give us very
firm guidance as to which of those decisions is more correct under
existing law.
I should say that as a matter of policy, I think the Patriot Act
amendment to FISA is a good idea. If the government can establish
probable cause to believe someone is a terrorist or a spy possessing
foreign intelligence information, that should be enough to monitor
them; allowing the government to then use the evidence to prosecute
the terrorist or spy in a criminal case seems sensible to me. Indeed,
there is an apparent irony in this entire topic: Here the government
actually wants to use the criminal court system in terrorism cases,
which is usually seen among civil libertarians as a positive thing.
Forcing the government to conduct monitoring entirely outside the
criminal court system seems unnecessary and unwise to me.
Nor am I particularly persuaded that this is "watering down" the
traditional Fourth Amendment warrant process. First, the government
still needs to establish probable cause to a federal judge that
someone is a terrorist or a spy with foreign intelligence information;
that's not exactly a low standard, as the FISCR properly recognized.
It seems unlikely to me that the government would seek to circumvent
the traditional Fourth Amendment standard of pc that a person
committed a crime (however minor) simply by establishing pc that a
person was a terrorist or a spy; if that's an easier threshold to
meet, it's not clear to me why.
Second, the Keith case that first held that there was a warrant
requirement at least in domestic intelligence cases was also quick to
say that it wasn't the same warrant requirement as applies in criminal
cases. So if there was a watering down, it was in the same Keith case
that first imposed warrant requirement in the first place. Anyway,
that's how I tend to approach the policy question (although I take it
as a given that my answer to the policy question isn't relevant to the
issue of whether Judge Aiken's decision is right or wrong as a matter
of Constitutional law).
The government will no doubt appeal, so we'll have to see what
happens next. I'm guessing the Ninth Circuit will reverse on standing,
but that prediction is heavily dependent on the panel this case
happens to draw.
([5]hide)
References
Visible links
1. http://www.ord.uscourts.gov/rulings/04-cv-1427Opinion.pdf
2. http://en.wikipedia.org/wiki/Brandon_Mayfield
3. http://news.findlaw.com/cnn/docs/terrorism/fisa111802opn.pdf
4. http://www.law.cornell.edu/supct/html/historics/USSC_CR_0407_0297_ZO.html
5. file://localhost/var/www/powerblogs/volokh/posts/1190858591.html
Hidden links:
6. file://localhost/var/www/powerblogs/volokh/posts/1190858591.html
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