FORUM

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. (“The 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. (“The ACLU relies on Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 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 “definitive jurisprudential answer,” further concluding that even if the standards do not comport with the Fourth Amendment, they “certainly come close,” and finally concluding that “FISA as amended is constitutional because the surveillances it authorizes are reasonable.”

• repeatedly asserted that the lower FISA court’s opinion “does not clearly set forth a basis for its decision," apparently ignoring the lower FISA court’s statement that its analysis and findings are “based 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 “legislative future” not entitled to authoritative weight.

• described the Government’s efforts to challenge the long-standing dichotomy between foreign intelligence and law enforcement purposes as “heroic” 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’s uncontested assertion that false, misleading or inaccurate FBI affidavits in numerous FISA applications may have been a result of “confusion within the Department of Justice over implementation” of the wall procedures that the DOJ itself drafted and implemented.

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)

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’s “misstatements 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 “exclude 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 “foreign 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 “false,” only to conclude that the Patriot Act now requires such a dichotomy. The court apparently assumes that, despite the Patriot Act’s 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 “no matter what statutory change is made…the court may impose a constitutional requirement of ‘primary 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 “[suggests] that the FISA court requirements…may 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, “the 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 “CIA 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 “findings regarding minimization apply only to communications of or concerning U.S. persons [meaning] U.S. citizens and permanent resident aliens…and does not apply to communications of foreign powers…[or] to non-U.S. persons.”

Essentially, the FISA review court’s 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’s 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 “give 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’s 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 “constitutional 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’s 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.

November 26, 2002