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Surveillance court caves { November 22 2002 } Original Source Link: (May no longer be active)
http://www.abanet.org/journal/ereport/n22spycourt.htmlhttp://www.abanet.org/journal/ereport/n22spycourt.html
Friday, November 22, 2002
UNUSUAL APPEALS PROCESS IN WIRETAP CASE
Special Federal Intelligence Surveillance Court of Review Sides With Government
BY DAVID L. HUDSON JR.
It was the first and only ruling of a little-known court. The government was the only party in the case. And the chances for U.S. Supreme Court review may be slim, since there is no losing party to file a petition for cert.
But the first-ever ruling of the secret Foreign Intelligence Surveillance Court of Review was a significant one, giving the Justice Department a freer hand to conduct electronic surveillance of those suspected of being agents of foreign powers. The ruling on Monday also appears to give approval to many of Attorney General John Ashcroft’s procedures that break down barriers between criminal investigations and foreign intelligence-gathering to fight the war on terrorism.
"Indeed, effective counterintelligence, we have learned, requires the wholehearted cooperation of all the government’s personnel who can be brought to the task," the special court of appeals wrote in In Re: Sealed Case No. 02-001 (Nov. 18). "A standard which punishes such cooperation could well be thought dangerous to national security."
The decision interprets the Foreign Intelligence Surveillance Act, passed by Congress in 1978 to give the government greater power to conduct foreign intelligence wiretaps and other surveillance without meeting the heightened requirements mandated by the Fourth Amendment. The ruling overturns part of a May decision by a lower FISA court restricting the government’s use of information obtained from foreign intelligence surveillance. One restriction had required the FBI and U.S. Justice Department to ensure that law enforcement officials don’t use FISA investigations to enhance criminal prosecutions.
Both special courts hearing the case were created by FISA. The lower court, which usually operates in secret, considers government applications for electronic surveillance in foreign intelligence cases. If the government’s application is denied or limited, the government has the right to appeal to the so-called court of review, made up of three federal judges selected by the chief justice of the United States.
The only party to the proceeding in the case is the government. But, in this historic decision, the special appeals court accepted amicus briefs filed by the American Civil Liberties Union in conjunction with other civil liberties groups and a separate brief filed by the National Association of Criminal Defense Lawyers.
Many civil libertarians supported the restrictions, fearing that the government would use FISA surveillance to obtain information for criminal prosecutions unrelated to threats from foreign powers, breaking down traditional barriers between law enforcement and foreign intelligence.
Marci Hamilton, a professor at Yeshiva University’s Benjamin N. Cardozo School of Law in New York City, says the decision leaves many unresolved questions, not the least of which is how such a ruling can be appealed. "How would you have an appeal when you only have one party?" she asks. "What happened to the case and controversy requirement? Does that not require two parties with adverse interests? How would you set an appeal when you don’t have a party to take the appeal, in the absence of a congressionally mandated automatic appeal?"
It’s not clear whether this ruling will bind federal appeals courts if a criminal defendant challenges a conviction based on evidence gathered under FISA’s looser standards, Hamilton says. "To my knowledge, there are no court precedents that determine these FISA issues, because it is a new beast," she says. "These are hard questions that will take some creative lawyering to figure out."
Chief Justice William H. Rehnquist appointed the court of review judges. They are Judge Laurence H. Silberman of the U.S. Court of Appeals for the D.C. Circuit, Judge Edward Leavy of the 9th U.S. Circuit Court of Appeals based in San Francisco, and Judge Ralph B. Guy Jr. of the 6th Circuit based in Cincinnati.
The court of review noted that several federal courts had held that surveillance under FISA was appropriate only if foreign intelligence surveillance was the government’s primary purpose. If the primary purpose was not foreign intelligence gathering, but gathering evidence for criminal prosecution, the target was entitled to the traditional protections of the Fourth Amendment, such as a warrant backed by probable cause.
Apparently to avoid running afoul of the primary purpose test, the Justice Department had in prior years limited contact between the FBI, which gathers evidence for criminal prosecutions, and the Criminal Division Concerning Foreign Intelligence and Foreign Counterintelligence Investigations.
The special appeals court disagreed with these earlier federal court decisions, writing: "In sum, we think that the FISA as passed by Congress in 1978 clearly did not preclude or limit the government’s use or proposed use of foreign intelligence information, which included evidence of certain kinds of criminal activity, in a criminal prosecution."
The appeals court also agreed with many of the government’s arguments about the effect and constitutionality of amendments to FISA by the USA Patriot Act, which was passed in October 2001 in response to the terrorist attacks of Sept. 11, 2001. The court held the new law allows sharing of wiretap information even if the government intends to prosecute the target, but said FISA also allowed such sharing.
The appeals court said the Patriot Act modified the primary purpose test when it provided that the government may continue with FISA surveillance if a "significant purpose" is the collection of foreign intelligence. The law does not violate the Fourth Amendment, the per curiam opinion said.
It reasoned that the "procedures and government showings required under FISA … come close" to meeting Fourth Amendment warrant standards and "the surveillances it authorizes are reasonable." The appeals court analogized the FISA proceedings to the special needs exception in Fourth Amendment case law.
The appeals court seemed to acknowledge that it was breaking new ground with its opinion, writing: "We acknowledge, however, that the constitutional question presented by this case–whether Congress’ disapproval of the primary purpose test is consistent with the Fourth Amendment–has no definitive jurisprudential answer. The supreme court’s special needs cases involve random stops (seizures), not electronic searches."
Ashcroft was pleased with the special appeals court’s ruling. "The court of review’s action revolutionizes our ability to investigate terrorists and prosecute terrorist acts," he said at a news conference Monday. "The decision allows the Department of Justice to free immediately our agents and prosecutors in the field to work together more closely and cooperatively in achieving our core mission, the mission of preventing terrorist attacks."
Ann Beeson, litigation director of the Technology and Liberty Program of the American Civil Liberties Union, disagreed with the decision. "As of today, the attorney general can suspend the ordinary requirements of the Fourth Amendment in order to listen in on phone calls, read e-mails, and conduct secret searches of Americans’ homes and offices," she said in a news release.
"This is a major constitutional decision that will affect every American’s privacy rights, yet there is no way anyone but the government can automatically appeal this ruling to the supreme court. Hearing a one-sided argument and doing so in secret goes against the traditions of fairness and open government that have been the hallmark of our democracy."
Other government officials do not believe the decision grants complete carte blanche to the attorney general. Sen. Patrick Leahy, D-Vt., chairman of the Judiciary Committee, issued a statement in reaction to the ruling: "In listening to some of the Justice Department’s interpretation of this decision, you would think that the review court had thrown out the constitutional restraints and thrown open everyone’s doors to government snooping. That is not the case, and it would be wise for the Justice Department to read the decision more closely."
Leahy refers to a section of the opinion saying that FISA prevents "the government from targeting a foreign agent when its ‘true purpose’ was to gain nonforeign intelligence information–such as evidence of ordinary crimes or scandals." Later, the appeals court explains that "the FISA process cannot be used as a device to investigate wholly unrelated crimes."
The ACLU and the NACDL are exploring a possible appeal to the supreme court even though the groups are not parties to the case. The organizations would have to file a motion to intervene with the high court. James X. Dempsey of the Center for Democracy and Technology, who joined the ACLU in its amicus brief, says he is not hopeful about the chances for an appeal.
©2002 ABA Journal
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