1/15. The U.S. Foreign Intelligence Surveillance Court of Review (FISCR)
belatedly released a heavy redacted
[29 pages in PDF] of its August 22, 2008, opinion in case with a redacted
caption regarding the authority of the executive branch to conduct
warrantless surveillance under the Foreign Intelligence Surveillance Act
The FISCR held that "a foreign intelligence exception to the
Fourth Amendment's warrant requirement exists when surveillance is
conducted to obtain foreign intelligence for national security purposes and
is directed against foreign powers or agents of foreign powers reasonably
believed to be located outside the United States".
It also held that national security need only be a
"significant" purpose -- not the "primary" purpose.
Statutory and Procedural Background. The case concerns government
surveillance pursuant to the Foreign Intelligence Surveillance Act (FISA).
Moreover, it pertains to sections of the FISA that were in effect briefly from
late 2007 through early 2008.
In August of 2007, the 110th Congress enacted, and President Bush signed,
S 1927 [LOC
the "Protect America Act of 2007" (PAA). As extended, it expired on
February 16, 2008. However, directives issued by the government under the PAA
prior to February 16, 2008, remained in effect.
The 110th Congress passed, and President Bush signed on July 10, 2008,
HR 6304 [LOC
the "Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008". It
is now Public Law No. 110-261.
The just released opinion states that in 2007 "the government issued directives to the
petitioner commanding it to assist in warrantless surveillance of certain
With redactions, little information is disclosed. The opinion states
that the government issued "directives" to an undisclosed
"communications service provider" (CSP). This CSP "refused to comply with the
directives". This CSP challenged the directives by filing a "petition" in the
Foreign Intelligence Surveillance Court (FISC).
The FISCR's opinion states that the FISC
"found the directives lawful and compelled obedience to them". The FISC issued
an "opinion validating the directives and granting the motion to compel". The
FISCR opinion also refers to this as a "decision". However, it does not state that the FISC
entered a "judgment"; nor does it state that it affirmed a "judgment". The FISC
denied the CSP's motion for a "stay pending appeal".
The CSP brought the present "petition for
review". The FISCR opinion states that it "affirm[ed]".
Standing. The opinion addresses the obvious threshhold question of
standing to sue. The FISCR suspended ordinary principles of standing, and held
that the CSP has standing to litigate the claims of its customers.
This is a 4th Amendment challenge. This amendment gives rights to "the people" who are
subjected to "searches and seizures". This means the CSPs' customers, not the
CSPs. Yet, no persons who were subjected to
"searches and seizures" as a result to the directives at issue were a party to
either the FISC or FISCR proceedings. Indeed, these people are not afforded
notice, an opportunity to be heard, or a cause of action.
The FISCR opinion does not address the
5th Amendment due process right of people to litigate their 4th Amendment
There is also the matter of injury. People
subjected to searches and seizures have an injury for the purpose of standing
analysis. The CSPs suffer no
injury as a result of surveillance. Hypothetically, they might be fined for failure to comply with a
Department of Justice (DOJ) directive. However, in the present case, there was no contempt order, no
fine, no imprisonment, and no actual injury.
Service providers have little incentive to
challenge surveillance orders. It is not their privacy that is diminished.
On the other hand, various benefits flow from compliance, such as payment from
the government. There are also various
reciprocal interests. For example, while the DOJ seeks
cooperation in surveillance from CSPs, the CSP's seek cooperation from the DOJ
in reviews of mergers and single firm conduct.
The PAA provided the CSPs a cause of action. The
FISCR inferred from this a Congressional grant of standing.
However, the standing requirement derives from
Article III of the Constitution. The Congress cannot amend by statute Article
III or any other provision of the Constitution.
This opinion stretches principles of standing
beyond recognition. Perhaps the FISCR did so because the Congress had already
disregarded the 4th and 5th Amendment rights of surveiled people. To have held
that CSPs lack standing would have removed even the appearance that the FISA
directives review process comports with Constitutional rights.
4th Amendment search and seizure law develops as
a result of legal challenges asserted by the persons targeted by government
surveillance, usually in criminal prosecutions. The FISA surveillance and
judicial review process eliminates this source of legal challenges. The people who have
standing have no cause of action. Hence, there are very few FISCR opinions. It
has disclosed only two since enactment of the FISA in 1978.
Depriving affected persons of any meaningful opportunity to challenge FISA
based surveillance of their communications, and transferring any cause of action
to CSPs, and conferring artificial standing upon them, is just one manifestation
of a larger trend in the law related to electronic surveillance.
New information and communications technologies are being developed that send
and receive voice communications, e-mail, and data, store data, and log and save
information about internet usage. As a result, the government's sources are
increasingly becoming third parties, rather than the people to whom traditional
4th Amendment rights attach.
4th Amendment. 4th Amendment to
the Constitution provides, in full, that "The right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue, but upon probable
cause, supported by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized."
The petitioning CSP's pleadings, briefs, and
oral arguments are all secret. The public record of the CSP's arguments exists
only in the FISCR's summary.
The opinion states that the petitioning CSP "asserts that the
government, in issuing the directives, had to abide by the requirements
attendant to the Warrant Clause of the Fourth Amendment" and that "even if the
foreign intelligence exception to the warrant requirements exists and excuses
compliance with the Warrant Clause, the surveillances mandates by the directives
are unreasonable and, therefore, violate the Fourth Amendment".
The FISCR first held that this is an "as applied" challenge, rather than a
"facial challenge" to the statute.
Most significantly, the FISCR held that there is "a foreign intelligence
exception to the warrant requirement for surveillance undertaken for national
security purposes and directed at a foreign power or an agent of a foreign power
reasonably believed to be located outside the United States".
This goes beyond any prior Supreme Court holding.
The FISCR added that foreign intelligence surveillance need not even be the
"primary purpose" of the challenged directive. A "significant purpose" suffices.
The FISCR provided the rationale that imposing a warrant requirement would
"impede the vital national security interests that are at stake". It added that
"the warrant requirement would add an element of delay".
The FISCR did not address the possibility of limiting the exception to the
4th Amendment warrant requirement to surveillance conducted during the limited
time that a warrant is being sought.
The FISCR added that there still remains a "reasonableness" limitation on
warrantless surveillance. This, it wrote, requires a weighing of the
government's interest, the nature of the government intrusion and the privacy
interests of the surveiled people.
The FISCR wrote that "the interest in national security ... is of the highest
order of magnitude". In contrast, the CSP provided "no evidence of any actual
harm, any egregious risk of error, or any broad potential for abuse".
The FISCR then offered a lengthy, but heavily redacted, analysis of
government procedures, safeguards, and minimization.
Finally, the FISCR offered these concluding remarks. "Our government is
tasked with protecting an interest of utmost significance to the nation -- the
safety and security of its people. But the Constitution is the cornerstone of
our freedoms, and government cannot unilaterally sacrifice constitutional rights
on the altar of national security. Thus, in carrying out its national security
mission, the government must simultaneously fulfill its constitutional
responsibility to provide reasonable protections for the privacy of United
States persons. The judiciary's duty is to hold that delicate balance steady and
It added that "we caution that our decision does not constitute an
endorsement of broad-based, indiscriminate executive power. Rather, our decision
recognizes that where the government has instituted several layers of
serviceable safeguards to protect individuals against unwarranted harms and to
minimize incidental intrusions, its efforts to protect national security should
not be frustrated by the courts."
One footnote may be notable: "The petitioner has not charge that the
Executive Branch is surveilling overseas persons in order intentionally
to surveil persons in the United States. Because the issue is not before us, we
do not pass on the legitimacy vel non of such a practice."
Case Information. This case has a redacted title. It number is
FISCR No. 08-01. It is a petition for review of the U.S. Foreign Intelligence
Surveillance Court, Judge Reggie Walton presiding.
Judge Bruce Selya wrote the opinion of this
body, in which Judges Ralph Winter and Morris Arnold joined.
The opinion does not disclose who represented
Composition of the FISCR. The FISCR has only three members. See,
50 U.S.C. § 1803. Currently, it is thoroughly Republican.
Judge Selya is a senior status Judge of the U.S.
Court of Appeals for the 1st Circuit, and Chief Judge of the FISCR. Former
President Reagan appointed him to the Court of Appeals. Former Chief Justice
William Rehnquist appointed him to the FISCR in 2004. Rehnquist served in the
Department of Justice during the administration of former President Nixon. He
was appointed to the Supreme Court by Nixon, and elevated to Chief Justice by
Judge Winter is a senior status Judge of the
U.S. Court of Appeals for the 2nd Circuit. He was appointed to the Court of
Appeals by former President Reagan. Former Chief Justice Rehnquist appointed him
to the FISCR in 2003.
Judge Arnold is a senior status Judge of the
U.S. Court of Appeals for the 8th Circuit. He was appointed to the U.S. District
Court by former President Reagan, and to the Court of Appeals by the first
President Bush. He was appointed to FISCR in 2008 by Chief Justice John Roberts.
DOJ Reaction. A DOJ spokesman stated in a
that the DOJ "is pleased".
He added that "The case involved a challenge by a
private party to directives that were issued under the Protect America Act and
that required the party to assist the Government in conducting foreign
intelligence surveillance against targets reasonably believed to be located
outside the United States. The Court of Review upheld the lawfulness of the
directives, concluding that the surveillance at issue fell within the foreign
intelligence exception to the warrant requirement and was otherwise reasonable
under the Fourth Amendment."
He also stated that "The Court issued a classified version of its opinion in
August 2008 and subsequently requested publication of an unclassified version.
Today, after a careful classification review process, the Court published the
unclassified version of its opinion. The Court of Review's decision marks the
second ruling published by the Court since it was established more than 30 years