The Oregon FISA Ruling
Unfortunately, my real work has been severely encroaching on my blogging time this week. Tonight is no exception. In the meantime, I thought I'd point you toward some good analysis of the federal district court ruling in Oregon in the Brandon Mayfield case. The judge in that case rule that a provision of FISA--specifically an amendment to FISA contained in the Patriot Act--violated the Fourth Amendment.
Here's some quick background. Under the pre-Patriot Act version of FISA, the government was only allowed to seek a FISA warrant--as opposed to a standard criminal warrant--when "the purpose" of the surveillance was to obtain foreign intelligence information. This language tracked the language of various cases which applied different Fourth Amendment standards to searches done for law enforcement purposes and searches done for foreign intelligence collection purposes.
One of the key provisions of the Patriot Act amended FISA so as to require only a showing that "a purpose" of the search was to collect foreign intelligence information. If another purpose (or even the primary purpose) of the search was to collect evidence for criminal prosecution, the government could still utilize FISA. This was a controversial provision when passed and a number of members of Congress pointed out at the time that the courts would have to weigh in on its constitutionality at some point.
Initially, the FISC ignored the language and read the statute to require that a "primary purpose" of the search be to collect foreign intelligence. The government appealed and the FISA Court of Review, in its first and only meeting, held that the "a purpose" language did not violate the Fourth Amendment. This is the oft-cited In re Sealed Case opinion.
Now a federal district court has weighed in on the issue and has come out the opposite way of the FISA Court of Review.
I've skimmed through the opinion briefly and it seems to be pretty well-reasoned. Both Marty Lederman and Orin Kerr, who often disagree on these kind of issues, find the court's reading of the Fourth Amendment case law plausibleeven persuasive [see update]. Both of their posts are worth reading in full if this issue interests you.
It's difficult to predict how a case like this will play out. While the judge's reasoning is solid and defensible given existing case law, most of that case law is pretty old. It's mostly from the pre-FISA era. The composition of the Supreme Court is very different now, and a lot has happened since the late 70s.
Orin thinks the court stretched a little to find standing in this case and that the Ninth Circuit or Supreme Court might reverse it on that ground, thereby avoiding the merits of the Fourth Amendment issue. That's always a possibility, though I personally found the court's standing analysis to be pretty convincing, a point we discussed back and forth a bit in his comment section (1, 2, 3, 4, 5). I think this issue needs to be addressed by the Supreme Court sooner or later and that this case provides as good a vehicle for that as any.
My hunch is that, at the end the day, the Supreme Court is going to be reluctant to hold that a statute passed by Congress and signed by the President violates the Fourth Amendment. It's one thing to rule that an executive program violates a statute (as the Court did in Hamdan). In that case, Congress is always free to authorize the activity in question through proper legislation. But if you rule that a statute violates the Fourth Amendment, you effectively tie the government's hands in a way that only a constitutional amendment can overcome. In the age of terrorism, it would take a lot of courage for the Court to make such a ruling.
UPDATE: Just to clarify. Orin Kerr, as he notes in the comments, found the court's reasoning plausible, but he finds the FISA Court of Review's reasoning more persuasive.
Here's some quick background. Under the pre-Patriot Act version of FISA, the government was only allowed to seek a FISA warrant--as opposed to a standard criminal warrant--when "the purpose" of the surveillance was to obtain foreign intelligence information. This language tracked the language of various cases which applied different Fourth Amendment standards to searches done for law enforcement purposes and searches done for foreign intelligence collection purposes.
One of the key provisions of the Patriot Act amended FISA so as to require only a showing that "a purpose" of the search was to collect foreign intelligence information. If another purpose (or even the primary purpose) of the search was to collect evidence for criminal prosecution, the government could still utilize FISA. This was a controversial provision when passed and a number of members of Congress pointed out at the time that the courts would have to weigh in on its constitutionality at some point.
Initially, the FISC ignored the language and read the statute to require that a "primary purpose" of the search be to collect foreign intelligence. The government appealed and the FISA Court of Review, in its first and only meeting, held that the "a purpose" language did not violate the Fourth Amendment. This is the oft-cited In re Sealed Case opinion.
Now a federal district court has weighed in on the issue and has come out the opposite way of the FISA Court of Review.
I've skimmed through the opinion briefly and it seems to be pretty well-reasoned. Both Marty Lederman and Orin Kerr, who often disagree on these kind of issues, find the court's reading of the Fourth Amendment case law plausible
It's difficult to predict how a case like this will play out. While the judge's reasoning is solid and defensible given existing case law, most of that case law is pretty old. It's mostly from the pre-FISA era. The composition of the Supreme Court is very different now, and a lot has happened since the late 70s.
Orin thinks the court stretched a little to find standing in this case and that the Ninth Circuit or Supreme Court might reverse it on that ground, thereby avoiding the merits of the Fourth Amendment issue. That's always a possibility, though I personally found the court's standing analysis to be pretty convincing, a point we discussed back and forth a bit in his comment section (1, 2, 3, 4, 5). I think this issue needs to be addressed by the Supreme Court sooner or later and that this case provides as good a vehicle for that as any.
My hunch is that, at the end the day, the Supreme Court is going to be reluctant to hold that a statute passed by Congress and signed by the President violates the Fourth Amendment. It's one thing to rule that an executive program violates a statute (as the Court did in Hamdan). In that case, Congress is always free to authorize the activity in question through proper legislation. But if you rule that a statute violates the Fourth Amendment, you effectively tie the government's hands in a way that only a constitutional amendment can overcome. In the age of terrorism, it would take a lot of courage for the Court to make such a ruling.
UPDATE: Just to clarify. Orin Kerr, as he notes in the comments, found the court's reasoning plausible, but he finds the FISA Court of Review's reasoning more persuasive.
posted by A.L. at 11:56 PM
7 Comments:
from your piece:
"But if you rule that a statute violates the Fourth Amendment, you effectively tie the government's hands in a way that only a constitutional amendment can overcome."
True, but I thought this was the reason the fourth amendment existed. To tie the hands of govt. in that specific area.
True, but I thought this was the reason the fourth amendment existed. To tie the hands of govt. in that specific area.
This is true, but the Fourth Amendment is also very vague. Essentially it requires that searches and seizures be "reasonable." Courts are often, and for good reasons in some cases, loathe to step in an declare that something authorized by statute is unreasonable, particularly when doing so would have a pretty significant impact on issues of national security.
I'm not saying this timidity is always justified, but it's very real.
AL,
I found Judge Aiken's 4th Amendment argument plausible, but I didn't find it persuasive. I'm personally more persuaded with the opposite view, but candor requires me to say that Aiken's view is plausible.
Orin Kerr
Given the mentality exhibited by this Administration toward greater and greater power, I'd hope that impacts on civil liberties would outweigh national security, especially in an environment when what defines 'national security' is becoming broader and broader at the same time that what defines 'unreasonable' is becoming narrower and narrower with respect to the term 'vague.'
I don't understand your statement that the Supreme Court would by tying Congress' hands short of a constitutional ammendment if they ruled the law unconstitutional. Congress would be free to pass a new FISA ammendment returning it to "the purpose" wouldn't they?
I don't understand your statement that the Supreme Court would by tying Congress' hands short of a constitutional ammendment if they ruled the law unconstitutional. Congress would be free to pass a new FISA ammendment returning it to "the purpose" wouldn't they?
Of course, but that's a very different law, one under which the government is more restricted in what it can do.
I'm not saying the Court would be wrong to strike down the law, but it would tie the government's hands. Whenever the court strikes down a law as unconstitutional, it's telling Congress that it can't do something.
It's going to be a 4-4-1 split, and it's all going to come down to Justice Kennedy.
My crystal ball says he side with his conservative buddies, because Mayfield got his damages settled, this was a particularly "rare" case, and because the court defers matters of national security to the Congress and the President when they agree (and this is how they've treated FISA before). He might leave the proverbial window open somehow, but he won't rule it unconstitutional altogether.
Oh, I miss the good ole days, when we could party like it's 1999...
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