Sending Cases to FISA Court May Not Work. Law Professors raise doubts.

Bills to “modernize,” revamp, reform or preserve the Foreign Intelligence Surveillance Act of 1978 and its secret procedures are proliferating on Capitol Hill like, well, like wiretaps on phones and Internet traffic since the Sept. 11, 2001, terrorist attacks.

Last week’s much ballyhooed Specter/White House compromise legislation to test the legality of the controversial National Security Agency domestic spy program quickly morphed into the “Specter sellout,” as constitutional and legal analysts on the left and some on the right closely examined the legislation.

The bill by Senate Judiciary Chairman Arlen Specter, R-Pa., now appears to be at one end of a spectrum of legislative proposals dealing with revelations that the Bush administration has been conducting a secret electronic surveillance program outside of FISA, the governing law.

To Scott Silliman of Duke Law School, an expert in military and national security law, there are disturbing parallels between what Congress and the White House have been doing on both the surveillance program and military commission issues.

Noting that there is tremendous White House pressure on Congress to act in both situations, Silliman said: “In the rush to pass legislation, you take the risk of erring and creating a system that is going to go on for a long time that may not be adaptable to other circumstances. Whether you’re talking about military commissions or the question of giving the president legislative sanction of the NSA program, these are very, very difficult and complex issues.

“You’ve got folks on both ends of the spectrum and it’s hard to choose one or the other and go with it,” he added. “When dealing with military commissions only struck down three weeks ago by the Supreme Court or a domestic surveillance program only revealed fairly recently, we need to have a well-reasoned debate on where you strike the balance. Let’s get it right.”

But the need to get it right is bumping into the need to get it done before the August recess. On the Hill last week for a Senate hearing, Silliman said one influential senator noted, “We only have a few weeks left.”

FOCUS ON FISA

On the domestic surveillance program, the focus on the Hill has been FISA. Congress enacted FISA in response to widespread domestic spying abuses by the FBI, CIA and NSA, documented in reports by the so-called Church Committee in the 1970s. It establishes procedures that, it states, “shall be the exclusive means by which electronic surveillance and the interception of domestic wire, oral, and electronic communications may be conducted.” One of those standards is probable cause to believe the target is an agent of a foreign power.

The Bush administration has defended the legality of the NSA program primarily relying on Congress’ Authorization for Use of Military Force, passed following the Sept. 11 attacks, and on the president’s inherent authority under Article II of the Constitution.

Lawsuits challenging the legality of the program and of the alleged cooperation of some major phone companies in a data-mining effort by the NSA are pending in district courts around the country.

Specter’s “compromise” legislation drew headlines last week because it was seen initially as a way to answer the legality question by submitting the NSA program for review by the Foreign Intelligence Surveillance Court, established by FISA to act on the government’s surveillance requests, and to deal with the pending lawsuits by transferring them to the Foreign Intelligence Surveillance Court of Review, the appeals court under FISA for rejected surveillance requests.

By the end of last week, a range of organizations, from the American Bar Association to the Center for Democracy & Technology, had attacked the legislation, with some saying it actually gutted FISA. Some of the reasons for that claim include: FISA review of the NSA program would be optional; the FISA court, for the first time, would be able to issue “program” or general warrants contrary to the current requirements of particularity and probable cause; and a president’s inherent constitutional authority to conduct electronic surveillance would be written into the law, making FISA compliance optional.

But the bill also provoked debate and dissension about the role of the two FISA courts, courts which meet in a guarded, windowless office in the U.S. Department of Justice building in Washington, and whose operations are entirely secret and ex parte-only the government appears before the court. The 11-member FISA court reports to Congress the number of warrants issued annually and only that number. The FISA court of review, which hears the government’s appeals, reportedly has met only once in its history, leading many to believe the executive branch generally gets what it seeks under FISA.

Having the FISA court decide the constitutionality of the electronic surveillance program simply makes no sense, said Jonathan Turley of George Washington University Law School, who has served as counsel in a number of national security and terrorism-related cases.

“The most glaring issue is the lack of any reason to submit this to a secret court,” he said. “This is a court designed to look at surveillance petitions. It is not a court in any classic sense of that term.”

The legality of the program, Turley said, turns on threshold constitutional questions, some of which the Supreme Court dealt with in its recent military commission decision, and some of which the district courts are considering in the lawsuits challenging the program.

The FISA court, he said, “does not have any meaningful adversarial process. It’s only called a ‘court’ by statutory fiat. If you correctly defined it, it would be more like an administrative board than a court. Once the government goes in, there is no meaningful role for opposing counsel, and if the government were to win, there is no appeal.”

Questions have been raised over the years about the constitutionality of FISA and its courts, noted Steve Vladeck of the University of Miami School of Law.

“In that regard, the bill doesn’t change the substance of that question but perhaps makes it more pressing,” he said. “I’m not yet convinced the bill raises constitutional problems.”

There is something to be said for the notion that the procedures of the FISA court are more conducive to the protection of the kind of information that’s likely to be necessary to resolve claims against the surveillance program, added Vladeck.

“But substantively I can’t accept the argument FISA judges have particular expertise that would enable them to better decide the constitutional question,” he said. There the contrast to the multidistrict judicial panel and federal circuit judges is striking. [FISA judges] are Article III judges selected by the chief justice not because they have national security or Fourth Amendment expertise. They are judges confirmed to the federal bench, not to the FISA courts.”

Also problematic for many scholars, groups and litigators is the bill’s provision transferring to the three-judge FISA court of review “any case before any court challenging the legality of classified communications intelligence activity relating to a foreign threat” if the U.S. attorney general affirms under oath that allowing the case to go forward would harm national security.

The Bush administration already has made such claims in pending suits filed by the American Civil Liberties Union, the Electronic Frontier Foundation and others, by asserting the so-called state secrets privilege.

Under the Specter bill, the review court would decide standing to sue; the legality or constitutionality of the challenged activity, and whether the party suing has any right to see the classified information. But the bill contains no alternative procedures to the current operation of the court, which would seem to mean that a proceeding would be in secret and ex parte-only government counsel would be involved.

The bill does authorize review by the Supreme Court, yet also says nothing about whether any party but the government has a right to seek that review, or whether the nongovernmental party could participate in any way if the government did appeal.

The bill also allows the FISA court of review or the court in which the surveillance was originally challenged to dismiss “for any reason” any challenge to the surveillance program.

Mark Agrast, senior fellow at the Center for American Progress, a bipartisan research foundation, said that he sees “all kinds of problems” with this transfer provision, but not necessarily constitutional ones.

“At a purely practical level, this is a case of government engaging in forum shopping by transferring cases to a forum in which it will have the advantage-structural, procedural and substantive advantages,” Agrast said.

Vladeck said his chief concern is with transfer of criminal cases raising challenges to the surveillance.

“That’s the context where we tend to see the most attention paid to procedural rights,” he said. “I’m not convinced applying the FISA process to criminal cases is constitutional.” Turley sees problems in both civil and criminal contexts with a transfer of cases to the FISA review court. “The arbitrary transfer of controversial cases to the secret court completely contradicts the narrow purpose and capability of that court,” he said.

“Suddenly the secret court has become the dumping ground for secret cases where the administration can lose in comfort in no public setting.

“Also, you don’t have random selection of judges as you do on the circuit court,” he added. “Finally, there is lack of any adversarial or appellate process.”

There are currently about seven bills in play on the Hill relating to FISA and the administration’s domestic surveillance activities.

“I think FISA has new supporters and not just on the civil liberties side,” said Agrast.

“If the government must make a showing of probable cause, that does more than anything else to ensure that it is deploying its resources in an effective and targeted fashion. We all feel very strongly the administration has not come forward with any reasoned argument why changes are required at all.”

 Marcia Coyle
The National Law Journal
July 25, 2006

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