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FIRST TIME UNLUCKY:
THE JURISPRUDENTIAL MISADVENTURES OF THE FOREIGN INTELLIGENCE SURVEILLANCE COURT OF REVIEW

Professor Raneta Lawson Mack
Creighton University School of Law
JURIST Guest Columnist

First times are often momentous occasions. First steps, first words, first day of school, first kiss, first utterings of a secret wiretap review court.

On November 18th, 2002, the Foreign Intelligence Surveillance Court of Review emerged from nearly a quarter century of silence. Perhaps itself impressed with the momentousness of that occasion, the court delivered a convoluted 56-page opinion in which it:

  • chided the lower FISA court for adhering to minimization procedures governing the sharing of information developed by the Department of Justice and followed by the FBI and the DOJ in all physical searches of U.S. persons since their promulgation in 1995. (典he FISA court asserted authority to govern the internal organization and investigative procedures of the Department of Justice which are the province of the Executive Branch (Article II) and Congress (Article I));

  • gratuitously insulted the amici curiae participants, whose contributions lent the process a scintilla of adversariness. (典he ACLU relies on Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. ァァ 2510-2522, to interpret FISA, passed 10 years later. That technique, to put it gently, is hardly an orthodox method of statutory interpretation.)

  • raised the question of whether FISA, as amended by the USA Patriot Act, is constitutional, concluding that the question has no 電efinitive jurisprudential answer, further concluding that even if the standards do not comport with the Fourth Amendment, they 田ertainly come close, and finally concluding that 擢ISA as amended is constitutional because the surveillances it authorizes are reasonable.

  • repeatedly asserted that the lower FISA court痴 opinion 電oes not clearly set forth a basis for its decision," apparently ignoring the lower FISA court痴 statement that its analysis and findings are 澱ased upon traditional statutory construction[involving] straightforward application of the FISA as it pertains to minimization procedures, and [raising] no constitutional questions that need to be decided."

  • rigidly relied upon legislative statements made during the hasty passage of the Patriot Act as conclusive proof of congressional intent, while blithely dismissing more recent statements concerning congressional intent, categorizing them as 斗egislative future not entitled to authoritative weight.

  • described the Government痴 efforts to challenge the long-standing dichotomy between foreign intelligence and law enforcement purposes as 塗eroic even though the history of FISA, senatorial statements, a letter from the Justice Department, and the Patriot Act clearly accept and legitimize such a dichotomy.

  • apparently accepted at face value the government痴 uncontested assertion that false, misleading or inaccurate FBI affidavits in numerous FISA applications may have been a result of 田onfusion within the Department of Justice over implementation of the wall procedures that the DOJ itself drafted and implemented.
In addition, the court did not consider one crucial question, which, if carefully and objectively analyzed, would easily have laid bare the Executive Branch痴 thinly-veiled quest for unconstrained authority to invade the privacy of U.S. citizens with minimal oversight. That is, why would the government need to alter procedures for obtaining FISA warrants when the lower FISA court had never rejected an application? Indeed, according to the lower FISA court opinion the court had 途eviewed and approved several thousand FISA applications, including many hundreds of surveillances and searches of U.S. persons[and had] long accepted and approved minimization procedures authorizing in-depth information sharing and coordination with criminal prosecutors. In fact, the language of the lower FISA court痴 opinion expressly provided that:
The FBI, the Criminal Division, and OIPR may consult with each other to coordinate their efforts to investigate or protect against foreign attack or other grave hostile acts, sabotage, international terrorism, or clandestine intelligence activities by foreign powers or their agents. Such consultations and coordination may address, among other things, exchanging information already acquired, identifying categories of information needed and being sought, preventing either investigation or interest from obstructing or hindering the other, compromise of either investigation, and long term objectives and overall strategy of both investigations in order to insure that the overlapping intelligence and criminal interests of the United States are both are achieved. (emphasis added)
In light of the lower FISA court痴 holding regarding the exchange of information, can the government seriously contend that the minimization procedures that it drafted in 1995, which the lower FISA court dutifully adopted, were too restrictive, warranting a still more lenient approach?

Moreover, as recently revealed, even with the DOJ minimization procedures in place, the government on numerous occasions failed to strictly adhere to them as evidenced by the disturbing number of inaccurate FBI affidavits accompanying FISA applications in which the government痴 杜isstatements and omissions involved information sharing and unauthorized disseminations to criminal investigators and prosecutors.

The ruling is legally unsound. At various points throughout the opinion, the FISA review court conflates the ultimate use of criminal information gleaned from a legitimate FISA investigations with the methods used to obtain such information. The court relies upon several opinions in which the courts recognized that criminal investigation, arrest and prosecution may be a part of FISA surveillance as long as foreign intelligence gathering remains the primary purpose. The FISA review court criticizes these opinions, however, for not linking the primary purpose test to actual statutory language and for interpreting foreign intelligence information to 兎xclude evidence of crimes

The FISA review court inexplicably treats these cases as if they somehow impeded full implementation of FISA surveillance when, in fact, the opinions upheld the FISA warrants at issue, concluding that the primary purpose of each investigation was foreign intelligence gathering. Indeed, there is no evidence that those courts were interpreting 吐oreign intelligence information to exclude evidence of crimes, and, in fact, they expressly acknowledged that criminal prosecutions may ensue in the wake of FISA investigations.

Curiously, the FISA review court also expends a great deal of energy demonstrating that the traditional dichotomy between foreign intelligence gathering and criminal investigations was 吐alse, only to conclude that the Patriot Act now requires such a dichotomy. The court apparently assumes that, despite the Patriot Act痴 swift enactment and sparse legislative history, Congress actually took the time to construct this dichotomy out of whole cloth, rather than accepting the more logical conclusion that Congress simply modified the long-standing dichotomy that existed. Indeed, Senator Leahy noted at the time of the Patriot Act passage that 渡o matter what statutory change is madethe court may impose a constitutional requirement of 叢rimary purpose based on the appellate court decisions upholding FISA against constitutional challenges over the past 20 years.

As evidence of the need for expanded information exchange, the FISA review court points to recent testimony before the Joint Intelligence Committee that 甜suggests] that the FISA court requirementsmay well have contributed, whether correctly understood or not, to the FBI missing opportunities to anticipate the September 11th attacks. What the court fails to point out, however, is that the Joint Committee also determined that prior to September 11th, 鍍he intelligence community possessed no intelligence or law-enforcement information that would have linked 16 of the 19 hijackers to terrorism or terrorist groups.

Additionally, the Joint Committee concluded that, with respect to the three remaining hijackers, regardless of any information exchange hurdles, the 鼎IA should have acted to add these individuals to the State Department's watch list in March 2000 [but failed to do so because], CIA personnel received no formal training on watch-listing[and] learned about the watch-listing process through on-the-job training."

By utilizing the failure to discover and prevent the September 11th hijackings as a basis for now permitting the unfettered exchange of information, the FISA review court minimized the ineptitude that apparently prevailed throughout various law enforcement agencies prior to September 11th, and ignored the potential for self-serving after-the-fact rationalizations by the government designed to mask such incompetence and shift responsibility for institutional mismanagement and chaos.

Ironically, the minimization procedures that the government now challenges as unduly burdensome would certainly not hinder its ability to investigate non-U.S. citizens entering the U.S. on multiple entry visas (as the hijackers did) because the lower FISA court makes clear that its 吐indings regarding minimization apply only to communications of or concerning U.S. persons [meaning] U.S. citizens and permanent resident aliensand does not apply to communications of foreign powers[or] to non-U.S. persons.

Essentially, the FISA review court痴 opinion would have the American public believe that the government has been obstructed at every twist and turn in its pursuit, investigation, and prosecution of terrorist activity, when, in fact, history reveals that just the opposite is true. The courts have been extraordinarily solicitous of the government痴 efforts, providing them with broad latitude to pursue counterterrorism objectives. It bears repeating that the lower FISA court has never denied a request for a FISA warrant. (The lower FISA court did not technically deny the request in the case at bar, and instead issued the order with certain modifications).

What the lower FISA court recognized and, indeed, what all Americans should legitimately fear is that the Executive branch is disingenuously using its September 11th failures in conjunction with the hastily drafted and poorly crafted Patriot Act to 堵ive the government a powerful engine for the collection of foreign intelligence information targeting U.S. persons.

By adhering to the minimization procedures, the lower FISA court merely sought to assure that the balance between legitimate national security concerns and individual privacy was not disturbed by seemingly unconstrained executive power. Thus, rather than overstepping the bounds of an Article III court, the lower FISA court was, in fact, acting as Article III courts have throughout history, filling in the gaps when statutes, through their silence or ambiguity, threaten fundamental rights that inhere in a democratic society. One need only consider the U.S. Supreme Court痴 Fourth and Fifth Amendment jurisprudence to understand that Article III courts are not strangers to crafting and imposing standards necessary to animate the fundamental principles of a 田onstitutional democracy under the law.

There is no question that Congress bungled its legislative responsibility by hurriedly enacting a far-reaching statute without debate or analysis. There is also no question that the Executive Branch, which goaded Congress into its haste, now seeks to use this legislative failure as a means to specifically target U.S. citizens.

But perhaps most importantly, there is also no question that a secret FISA appellate court structure, with judges hand selected by the Chief Justice of the U.S. Supreme Court, that hears only the government痴 evidence, and grants only the government a right to appeal is a singularly inappropriate forum to resolve issues that threaten the fundamental rights and values of all U.S. citizens.

The only question that remains is how much further our justice system wll be derailed in pursuit of the war on terrorism.


Raneta Lawson Mack is Professor of Law at Creighton University School of Law in Omaha, Nebraska. Her book Equal Justice in the Balance: Assessing America's Legal Responses to the Emerging Terrorist Threat (with Michael Kelly) will be published by University of Michigan Press in 2003.

November 26, 2002

GUEST COLUMNIST

JURIST Guest Columnist Raneta Lawson Mack is Professor of Law at Creighton University School of Law in Omaha, Nebraska, where she teaches Criminal Law, Criminal Procedure, White Collar Crime, and Computer Technology and the Law. She received her Bachelor of Arts degree, cum laude, in 1985, and her Juris Doctor degree, cum laude, in 1988, from the University of Toledo. She joined Creighton after serving as an associate with Davis, Graham & Stubbs in Denver, Colorado. Professor Mack is the author of two books: A Layperson's Guide to Criminal Law, published by Greenwood Press in 1999 and The Digital Divide: Standing at the Intersection of Race and Technology, published by Carolina Academic Press in 2001.

Professor Mack has published articles in the John Marshall Journal of Computer and Information Law, Indiana International and Comparative Law Review, Creighton Law Review, Arizona State Law Journal, St. Thomas Law Review, Thurgood Marshall Law Review, and the Creighton Lawyer. In 1994, Professor Mack received the Alumni Excellence in Law award from the University of Toledo Black Law Students Association. During the Summer of 1997, she was a USWest Fellow in the USWEST Computer Technology Fellowship Program at Creighton University.