By John O. Tyler, Jr., JD, PhD, HBU Program Coordinator for Legal Studies
Introduction
This article explains and evaluates the Foreign Intelligence Surveillance Act (“FISA”), 50 U.S.C. §§ 1801-1885c. It also explains and evaluates the system of secret, ex parte courts established by FISA.1
Congress passed FISA in 1978 to prevent electronic surveillance violating First and Fourth Amendment liberties. Rather than preventing such surveillance, however, FISA actually creates a statutory pathway that nurtures and protects unconstitutional electronic surveillance. FISA also creates a system of secret, ex parte courts that systematically deny due process to Americans surveilled under FISA.
Recent allegations of FISA abuse compel a closer analysis of FISA and its secret court system. Federal officials implicated by these allegations dispute their truth. Consequently, this article does not accept any of these allegations as true. Instead, it bases its analysis of the FISA statute and its secret court system exclusively on the FISA text, the Constitution’s text, and U.S. Supreme Court opinions detailing the Constitution’s protections against electronic surveillance.
This article concludes that FISA and its secret, ex parte courts are unconstitutional for three reasons. First, the secret, ex parte FISA courts violate the “case or controversy” requirement of Article III. Second, FISA violates Fourth Amendment liberties from unreasonable searches and seizures. Third, FISA and its secret, ex parte courts violate the due process guarantees of the Fifth and Fourteenth Amendments.
This article lastly considers the FISA statute and its secret, ex parte court system from a policy perspective. FISA apologists argue that the secret FISA courts are necessary for national security. They further argue that national security interests should override Constitutional protections.
This article concludes, as the U.S. Supreme Court concluded in United States v. U.S. District Court, 407 U.S. 297, 320 (1972), that national security does not require secret courts. Furthermore, as the Supreme Court explained in U.S. District Court, national security interests do not override Constitutional protections. To the contrary, Constitutional protections are more essential in national security cases than in cases involving ordinary crimes. 407 U.S. at 313-324.
II. Origins of the Foreign Intelligence Surveillance Act
Richard Nixon resigned his presidency on August 9, 1974, to avoid impeachment. On December 22, 1974, the New York Times published an article detailing illegal surveillance of U.S. citizens by federal intelligence agencies. On July 21, 1975, the United States Senate established a bipartisan Select Committee, chaired by Senator Frank Church, to investigate federal intelligence operations. The Select Committee identified intelligence abuses by the CIA, FBI, Internal Revenue Service, and National Security Agency.
The Select Committee issued its final report on April 23, 1976. Book III of the Select Committee’s final report revealed a long-running FBI program named “COINTELPRO” or “Counterintelligence Program.” COINTELPRO was “a sophisticated vigilante operation aimed squarely at preventing the exercise of First Amendment rights.” COINTELPRO illegally targeted speaking, teaching, writing, and meeting by U.S. citizens. FBI agents targeted, among others, the Southern Christian Leadership Conference, the anti-Vietnam War movement, and Martin Luther King, Jr. The FBI also targeted many local, state and federal elected officials.
The Select Committee reported that COINTELPRO’s “major premise” “was that a law enforcement agency has the duty to do whatever is necessary to combat perceived threats to the existing social and political order.” [Emphasis added]. The FBI relied on national security to justify its actions, conducting COINTELPRO “on the theory that preventing the growth of dangerous groups and the propagation of dangerous ideas would protect the national security.”
COINTELPRO turned the full “arsenal of techniques used against foreign espionage agents” against American citizens. Many of the FBI’s efforts “involved giving information or articles to friendly media sources who could be relied upon not to reveal the Bureau’s interests.” The FBI planted derogatory articles about its targets. FBI agents authored, printed and distributed false pamphlets and flyers.
The FBI sought to weaken target groups by setting members against each other. FBI agents used anonymous mailings criticizing leaders and allied groups. They formed fictional, FBI-run splinter groups to draw membership away from target organizations. FBI agents encouraged hostility, including gang warfare, between rival groups. The FBI also employed the “snitch jacket” technique to label a targeted individual as an informant so that he would no longer be trusted. See U.S. Senate Select Committee, Final Report-Book III: Supplementary Detailed Staff Reports on Intelligence Activities and the Rights of Americans (Washington, D.C.: Government Printing Office, 1976) pp. 1-77.
The Select Committee report concluded that federal agencies “undermined the constitutional rights of citizens primarily because checks and balances designed by the framers of the Constitution to assure accountability have not been applied.” The political pressure generated by these revelations forced Congressional action to curb intelligence abuses by the CIA, FBI, IRS, and NSA.
Accordingly, Senator Edward Kennedy introduced the Foreign Intelligence Surveillance Act (FISA) on May 18, 1977. President Carter signed FISA into law on October 25, 1978. FISA is codified at 50 U.S.C. §§ 1801-1885c.
III. Allegations of FISA Abuse
Congress passed FISA to prevent electronic surveillance violating First and Fourth Amendment liberties. Rather than preventing such surveillance, however, FISA actually creates a statutory pathway that nurtures and protects unconstitutional electronic surveillance. FISA also creates a system of secret, ex parte courts that systematically deny due process to Americans surveilled under FISA.
Recent allegations of FISA abuse compel a closer analysis of FISA and its secret court system. Federal officials implicated by these allegations dispute their truth. Consequently, this article does not accept any of these allegations as true. Instead, it bases its analysis of the FISA statute and its secret court system exclusively on the FISA text, the Constitution’s text, and U.S. Supreme Court opinions detailing the Constitution’s protections against electronic surveillance.
2013. Edward Snowden. Edward Snowden, a former contractor to the National Security Agency, alleged in 2013 that the FISA Court had been issuing general warrants to NSA agents since 2004. These warrants authorized the NSA to capture, in bulk, the content of domestic telephone calls, emails, and texts.
Snowden leaked a large number of classified documents, without government authorization, to substantiate his claims. On June 21, 2013, the U.S. Justice Department unsealed two charges against Snowden. These charges allege Snowden violated the Espionage Act of 1917 and stole government property.
2014. The PCLOB Report. The Privacy and Civil Liberties Oversight Board (“PCLOB”) is an independent federal agency established by Congress in 2004. The PCLOB confirmed some of Snowden’s allegations in its 2014 report on domestic FISA surveillance.
The PCLOB concluded that the federal government was intentionally conducting “incidental” domestic surveillance of Americans. The report presumed the scope of this surveillance was very large. The PCLOB could not define its full scope, however, because “the government is presently unable to assess the scope of the incidental collection of U.S. person information under the program.” [Emphasis added]. As explained below, the term “incidental” is a misleading euphemism. It describes unconstitutional electronic surveillance that violates Fourth Amendment liberties against unreasonable searches and seizures.
2016. PCLOB testimony before the Senate Judiciary Committee. The Chairman of the PCLOB, David Medine, testified before the Senate Judiciary Committee on May 16, 2016, regarding the broad and indiscriminate scope of “incidental” domestic surveillance. “Government databases,” Medine testified, “inevitably contain deeply personal communications by, from, and concerning U.S. persons” that “have nothing to do with terrorism or crime.”
2018. House Intelligence Committee. On January 18, 2018, the Republican Members of the Permanent Select Committee on Intelligence in the U.S. House of Representatives issued a classified memorandum on FISA abuses by the Department of Justice and the FBI. The President declassified the memorandum on February 2, 2018, and released the memorandum to the public.
The Republican memorandum claims that an uncorroborated dossier written by former British spy Christopher Steele formed an essential part of a FISA application targeting Carter Page. Page was a foreign policy adviser in Donald Trump’s 2016 Presidential campaign. The federal government originally filed its application in October 2016, and the federal government renewed its application three times. Former FBI Deputy Director Andrew McCabe confirmed that the federal government would not have sought a surveillance warrant from the FISA Court without the information contained in the Steele dossier.
The Republican memorandum claims the Clinton campaign paid Christopher Steele more than $160,000 for his dossier. Senior officials in the FBI and the Department of Justice knew this fact, but they concealed it in their four secret applications to the FISA Court. The Republican memorandum asserts other facts supporting Republican claims that the four FISA applications were motivated, not by national security interests, but by partisan political interests seeking to prevent or destroy a Trump presidency.
On February 24, 2018, Democrats on the House Intelligence Committee released their own declassified memorandum. The Democrat memorandum challenges claims in the Republican memorandum. Both memorandums are publicly accessible on the House Intelligence Committee’s website.
IV. FISA’s secret, ex parte court system
The FISA Court. FISA establishes two secret courts, the Foreign Intelligence Surveillance Court (“FISA Court”) and the Foreign Intelligence Surveillance Court of Review (“FISA Court of Review”). 50 U.S.C. § 1803. The FISA Court sits in Washington D.C. and consists of eleven federal district court judges appointed by the Chief Justice of the United States.
Each judge serves for a maximum of seven years and their terms are staggered to ensure continuity on the Court. The Chief Justice must appoint judges from at least seven of the United States judicial circuits, and three of the judges must reside within 20 miles of the District of Columbia. Judges typically sit for one week at a time, on a rotating basis. 50 U.S.C. § 1803 (a).
The FISA Court’s only jurisdiction is “to hear applications for and grant orders approving electronic surveillance anywhere within the United States.” 50 U.S.C. § 1803 (a) (1). Importantly for purposes of Article III, the FISA Court never conducts trials of cases or any other form of adversary proceeding.
The FISA Court conducts all its proceedings in secret. FISA requires all petitions and submissions to be sealed. 50 U.S.C. § 1881a (l). Records of all FISA Court proceedings, all government applications for electronic surveillance, and all FISA Court decisions on those applications are secret and classified, hidden from public view. 50 U.S.C. § 1803 (c). FISA Court proceedings are also ex parte, meaning that FISA only permits the federal government to appear, unopposed, in any proceeding before the FISA Court. 50 U.S.C. § 1881a (l).
The FISA Court of Review. The FISA Court of Review is composed of three federal district court or appeals court judges appointed by the Chief Justice of the United States. Its only jurisdiction is to review FISA Court denials of secret applications for electronic surveillance by the federal government. 50 U.S.C. § 1803 (b). Importantly for purposes of Article III, the FISA Court of Review never hears appeals from trials of cases or any other form of adversary proceeding.
Like the FISA Court, the FISA Court of Review conducts all its proceedings in secret. FISA requires all petitions and submissions to be sealed. 50 U.S.C. § 1881a (l). Records of all FISA Court proceedings, all government applications for electronic surveillance, and all FISA Court decisions on those applications are secret and classified. 50 U.S.C. § 1803 (c). FISA Court of Review proceedings are also ex parte, meaning that FISA only permits the federal government to appear, unopposed, in any proceeding before the FISA Court of Review. 50 U.S.C. § 1881a (l).
V. FISA’s secret, ex parte court system is unconstitutional under Article III
U.S. Constitution, Article III, Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;–to all cases affecting ambassadors, other public ministers and consuls;–to all cases of admiralty and maritime jurisdiction;–to controversies to which the United States shall be a party;–to controversies between two or more states;–between a state and citizens of another state;–between citizens of different states;–between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects. [Emphasis added].
The FISA Court and the FISA Court of Review are unconstitutional because they violate the “case or controversy” requirement of Article III. Federal courts are courts of limited jurisdiction. They can only hear those cases that the Constitution authorizes them to hear. Kokkonen v. Guardian Life Ins. Co. of America, 511 U. S. 375, 377 (1994). The Tenth Amendment reserves all other judicial powers to the states.
The text of Article III limits the federal judicial power to actual cases or controversies. The U.S. Supreme Court established three requirements to qualify as an Article III “case or controversy” in Aetna Life v. Haworth, 300 U.S. 227 (1937). Each requirement is mandatory. Unless the legal matter meets all three requirements, the federal court has no authority to consider the matter.
Actual dispute. First, the legal matter must involve an actual dispute. “It must be a real and substantial controversy.” Aetna Life v. Haworth, 300 U.S. 227, 240-241 (1937).
Adverse parties. Second, the legal matter must involve adverse parties. It must “touch the legal relations of parties having adverse legal interests.” Aetna Life v. Haworth, 300 U.S. 227, 240-241 (1937).
Dispute capable of final judicial resolution. Third, the dispute must be capable of a final judicial resolution. “It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character.” Aetna Life v. Haworth, 300 U.S. 227, 240-241 (1937).
As explained below, the FISA Court and the FISA Court of Review fail all three “case or controversy” requirements established in Aetna Life v. Haworth. FISA’s secret, ex parte court system is therefore unconstitutional under Article III.
No actual disputes. All proceedings in the FISA Court and the FISA Court of Review fail the first “case or controversy” requirement because they do not involve any actual disputes. The FISA Court’s only jurisdiction is “to hear applications for and grant orders approving electronic surveillance anywhere within the United States.” 50 U.S.C. § 1803 (a) (1). The FISA Court of Review’s only jurisdiction is to review FISA Court denials of those applications. 50 U.S.C. § 1803 (b).
All proceedings before both FISA courts are undisputed. They merely involve unopposed applications to conduct electronic surveillance in the United States. There is no actual dispute between the federal government and any other party because FISA forbids the presence of any other party. The federal government is the only party permitted to appear before either court. 50 U.S.C. §
1881a (l).
No adverse parties. All proceedings in the FISA Court and the FISA Court of Review fail the second “case or controversy” requirement because they do not involve adverse parties. All proceedings in the FISA Court and the FISA Court of Review are ex parte. The federal government is the only party permitted to appear before either court. 50 U.S.C. § 1881a (l). The FISA Court and the FISA Court of Review forbid the presence of any adverse parties.
Furthermore, neither court allows any other party to know that the federal government has even filed an application with either court. FISA requires all petitions and submissions to be sealed. 50 U.S.C. § 1881a (l). Records of all FISA Court proceedings, all government applications for electronic surveillance, and all FISA Court decisions on those applications are secret and classified, hidden from public view. 50 U.S.C. § 1803 (c).
No disputes capable of final judicial resolution. All proceedings in the FISA Court and the FISA Court of Review fail the third “case or controversy” requirement because they do not involve any disputes capable of final judicial resolution. There are no actual disputes, no adverse parties, and no trials in the FISA Court. 50 U.S.C. § 1803 (a) (1).
Similarly, there are no actual disputes, no adverse parties, and no appeals of trials in the FISA Court of Review. 50 U.S.C. § 1803 (b). There are thus no disputes capable of final judicial resolution in any proceeding before the FISA Court or the FISA Court of Review.
VI. FISA is unconstitutional under the Fourth Amendment
U.S. Constitution, Amendment IV. 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.
FISA violates the Fourth Amendment’s liberties from unreasonable searches and seizures. The following discussion includes three sections. The first section explains four principles establishing the broad scope of Fourth Amendment liberties. The second section explains the Fourth Amendment’s five restrictions on electronic surveillance. The third section explains how FISA violates all five of the Fourth Amendment’s restrictions on electronic surveillance.
A. The broad scope of Fourth Amendment liberties
Four principles define the broad scope of Fourth Amendment liberties from unreasonable searches and seizures. The following discussion details the U.S. Supreme Court opinions establishing these principles.
First, Fourth Amendment liberties apply to all persons present in the United States. Fourth Amendment liberties against unreasonable searches and seizures apply to all persons present in the United States, even if their presence is “unlawful, involuntary, or transitory.” Zadvydas v. Davis, 533 U.S. 678 (2001); Adarand Constructors, Inc. v. Pena, 516 U.S. 200 (1995); and Bolling v. Sharpe, 347 U.S. 497 (1954). All surveillance under FISA involving persons present in the United States is therefore subject to the Fourth Amendment.
Second, Fourth Amendment liberties apply to electronic surveillance. Although the text of the Fourth Amendment only refers to “persons, houses, papers, and effects,” a unanimous U.S. Supreme Court held that Fourth Amendment liberties apply to electronic surveillance as well. United States v. U.S. District Court, 407 U.S. 297, 313-324 (1972). All electronic surveillance under FISA involving any person present in the United States is thus subject to Fourth Amendment restrictions.
Third, Fourth Amendment liberties apply in cases involving national security. The U.S. Supreme Court held in United States v. U.S. District Court, 407 U.S. 297 (1972), that the federal government’s duty to preserve national security does not override the Fourth Amendment’s liberties from unreasonable search and seizures. The federal government must comply with the Fourth Amendment in all domestic subversive investigations. Government must present sufficient evidence of probable cause to a neutral magistrate and obtain a warrant before it can invade the privacy of any person in the United States.
The Court wrote that Fourth Amendment liberties are even more essential in national security cases than in cases involving ordinary crimes. The federal government tends to regard all opponents of its policies as a threat. This attitude predisposes the federal government to violate rights protected by both the First Amendment and the Fourth Amendment. United States v. U.S. District Court, 407 U.S. 297, 313-324 (1972).
Lastly, Fourth Amendment liberties apply wherever a person has a reasonable expectation of privacy. Fourth Amendment liberties apply wherever a person has a reasonable expectation of privacy. Katz v. United States, 389 U.S. 347 (1967). “Wherever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures.” 389 U.S. at 359. Fourth Amendment liberties also apply to electronic surveillance whenever the person has a “reasonable expectation of freedom from governmental intrusion.” Mancusi v. DeForte, 392 U.S. 364, 368 (1968).
B. The Fourth Amendment’s five restrictions on electronic surveillance
Fourth Amendment liberties protect against “unreasonable searches and seizures,” but they do not protect persons from all searches and seizures. To protect against unreasonable searches and seizures, the Fourth Amendment establishes five restrictions on all searches and seizures. The following discussion details the U.S. Supreme Court opinions applying these five restrictions to electronic surveillance. As explained above, these restrictions protect all persons present in the United States, even if their presence is “unlawful, involuntary, or transitory.” Zadvydas v. Davis, 533 U.S. 678 (2001).
Warrants. First, the Fourth Amendment prohibits electronic surveillance without warrants, even in national security cases. Katz v. United States, 407 U.S. 347, 353 (1967); United States v. U.S. District Court, 407 U.S. 297, 313-324 (1972) (Unanimous opinion). The Fourth Amendment prohibits the federal government from conducting any electronic surveillance involving persons present in the United States without obtaining a search warrant.
Prior approval of a neutral magistrate. Second, the Fourth Amendment prohibits electronic surveillance without the prior approval of a neutral magistrate. The courts cannot properly enforce Fourth Amendment liberties if the Executive Branch conducts domestic security surveillances solely within its own discretion. United States v. U.S. District Court, 407 U.S. 297, 316-318 (1972).
A neutral magistrate must approve any electronic surveillance before the government can proceed with the surveillance. This requirement applies to cases involving matters of national security. United States v. U.S. District Court, 407 U.S. 297, 313-324 (1972). Compliance with the Fourth Amendment is “a constitutional precondition of electronic surveillance.” Katz v. United States, 407 U.S.
347, 359 (1967).
“Probable cause.” Third, the Fourth Amendment prohibits electronic surveillance without an affidavit establishing “probable cause.” “Probable cause” under the Fourth Amendment requires that the person swearing to the warrant application have “reasonable grounds at the time of his affidavit for the belief that the law is being violated on the premises to be searched.” Dumbra v. U.S., 268 U.S. 435, 439-41 (1925). [Emphasis added].
The Fourth Amendment requires a sworn affidavit establishing probable cause before the government can conduct electronic surveillance. “[N]o Warrants shall issue, but upon probable cause, supported by Oath or affirmation.” [Emphasis added]. Compliance with the Fourth Amendment is “a constitutional precondition of electronic surveillance.” Katz v. United States, 407 U.S. 347, 359 (1967).
Detailed description of the targeted location. Fourth, the Fourth Amendment prohibits electronic surveillance without a sworn, detailed description of the targeted location. The Fourth Amendment requires a sworn affidavit giving a detailed description of the location the government intends to surveil. “[N]o Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched.” [Emphasis added]. Compliance with the Fourth Amendment is “a constitutional precondition of electronic surveillance.” Katz v. United States, 407 U.S. 347, 359 (1967).
Detailed description of the targeted person. Fifth, the Fourth Amendment prohibits electronic surveillance without a sworn, detailed description of the targeted person. The Fourth Amendment requires a sworn affidavit giving a detailed description of the person the government intends to surveil. “[N]o 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.” [Emphasis added]. Compliance with the Fourth Amendment is “a constitutional precondition of electronic surveillance.” Katz v. United States, 407 U.S. 347, 359 (1967).
C. FISA violates the Fourth Amendment’s five restrictions on electronic surveillance
In violation of the U.S. Supreme Court opinions cited above, FISA violates all five of the Fourth Amendment restrictions on electronic surveillance. The following discussion explains the FISA provisions violating each restriction.
No warrants. First, FISA permits electronic surveillance without warrants. 50 U.S.C. § 1881a (a). The Attorney General and the Director of National Intelligence may target persons for electronic surveillance without a warrant for up to one year unless the person “is known” to be present in the United States. 50 U.S.C. § 1881a (d). FISA thus permits the federal government to target any person it chooses without a warrant by claiming uncertainty about the person’s location.
Furthermore, although 50 U.S.C. § 1881a (b) prohibits the “intentional” targeting of persons present in the United States, FISA permits “incidental” surveillance of persons present in the United States. For example, if a person present in the United States communicates with a targeted person outside the United States, FISA permits surveillance of both persons, even though all warrantless electronic surveillance of persons present in the United States violates the Fourth Amendment. Katz v. United States, 407 U.S. 347. 353 (1967); United States v. U.S. District Court, 407 U.S. 297, 313-324 (1972) (Unanimous opinion). The term “incidental” is thus a cynical and misleading euphemism. It describes unconstitutional electronic surveillance that violates Fourth Amendment liberties against unreasonable searches and seizures.
The Privacy and Civil Liberties Oversight Board (“PCLOB”) is an independent agency within the executive branch of the United States government. Congress established PCLOB in 2004. The PCLOB published a report on FISA surveillance in 2014. The PCLOB concluded that the federal government was conducting broad “incidental” domestic surveillance on Americans protected by the Fourth Amendment. The report presumed the scope of this surveillance was very large. The PCLOB could not define its full scope, however, because “the government is presently unable to assess the scope of the incidental collection of U.S. person information under the program.”
Furthermore, the PCLOB concluded that this unconstitutional, warrantless, “incidental” surveillance was intentional. “The collection of communications to and from a target inevitably returns communications in which non-targets are on the other end, some of whom will be U.S. persons. Such ‘incidental’ collection of communications is not accidental, nor is it inadvertent.” PCLOB, Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act [50 U.S.C. § 1881a] (July 2, 2014) at pp. 10, 82. [Emphasis added].
The Chairman of the PCLOB, David Medine, testified in 2016 before the Senate Judiciary Committee regarding the broad and indiscriminate scope of “incidental” surveillance of persons present in the United States. “Government databases,” Medine testified, “inevitably contain deeply personal communications by, from, and concerning U.S. persons” that “have nothing to do with terrorism or crime.” Medine testified as follows:
[50 U.S.C. § 1881a] allows the government to collect a massive number of communications, and as a default, store them for five years or more. Although U.S. persons cannot be targeted for [50 U.S.C. § 1881a] collection, the government incidentally acquires information about a U.S. person when a target communicates with that person. As a result, government databases inevitably contain deeply personal communications by, from, and concerning U.S. persons. Many of these communications have nothing to do with terrorism or crime. Rather, they can include family photographs, love letters, personal financial matters, discussions of physical and mental health, and political and religious exchanges. U.S. person queries are, therefore, capable of revealing a significant slice of an American’s personal life. This is particularly the case for Americans who correspond frequently with foreigners, including relatives, friends, and business associates. PCLOB Chairman David Medine, “Prepared Statement for the Senate Committee on the Judiciary,” May 16, 2016. [Emphasis added].
No prior approval of a neutral magistrate. Second, FISA permits electronic surveillance without the prior approval of a neutral magistrate. 50 U.S.C. § 1881a (j). The FISA Court never reviews or approves specific requests for electronic surveillance. Instead, the FISA Court only reviews the government’s “targeting” and “minimization” procedures. It has no role in overseeing how the government actually uses its surveillance power. 50 U.S.C. § 1881a (j) (2) (B) and (C).
Furthermore, even if the FISA Court finds the government’s “targeting” and “minimization” procedures deficient, the government may ignore the FISA Court ruling and continue its surveillance during rehearing and appeal. This surveillance can continue until the FISA Review Court issues its final order on appeal. 50 U.S.C. § 1881a (j) (4) (B).
No “probable cause.” Third, FISA permits electronic surveillance with no showing of probable cause. “Probable cause” under the Fourth Amendment requires the government affiant to demonstrate reasonable grounds, under oath, that the targeted individual is violating the law on the premises the government intends to surveil. Dumbra v. U.S., 268 U.S. 435, 439-41 (1925). [Emphasis added].
The burden for obtaining a FISA warrant is substantially less than Fourth Amendment “probable cause.” Under FISA, the government need not demonstrate that the targeted individual is violating the law on the targeted premises. The federal agent merely needs to list the facts and circumstances upon which he relies in forming a belief that (1) that the targeted individual is an agent of a foreign power, and (2) that the location to be surveilled is about to be used by an agent of the foreign power. 50 U.S.C. § 1804 (a) (3) (A)-(B).
FISA does not require any showing that the surveillance target is (1) violating any law, (2) involved in any crime or wrongdoing of any type, or (3) connected in any way to terrorism. 50 U.S.C. § 1804 (a) (3) (A)-(B).
No detailed description of the targeted location. Fourth, FISA permits electronic surveillance without a sworn, detailed description of the targeted location. In fact, FISA permits electronic surveillance of locations in the United States without any identification of the targeted location. 50 U.S.C. § 1804 (a) (3).
No detailed description of the targeted person.
Fifth, FISA permits electronic surveillance without a sworn, detailed description of the targeted person. In fact, FISA permits electronic surveillance of individuals in the United State without any identification of the targeted individual. 50 U.S.C. § 1804 (a) (2).
VII. FISA’s secret, ex parte court system is unconstitutional under the due process clauses of the Fifth and Fourteenth Amendments
U.S. Constitution, Amendment V. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. [Emphasis added].
U.S. Constitution, Amendment XIV. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdictione the equal protection of the laws. [Emphasis added].
The following discussion explains how the secret, ex parte court system established by FISA violates the due process guarantees of the Fifth and Fourteenth Amendments. The due process clauses of the Fifth and Fourteenth Amendments prohibit federal and state governments from depriving any person of life, liberty, or property without due process of law. Each amendment binds both federal and state governments through the doctrines of incorporation, Mapp v. Ohio, 367 U.S. 643 (1961), and reverse incorporation, Adarand Constructors, Inc. v. Pena, 516 U.S. 200 (1995), and Bolling v. Sharpe, 347 U.S. 497 (1954).
The due process clauses protect Fourth Amendment liberties. As explained above, the Fourth Amendment protects all persons in the United States against electronic surveillance, United States v. U.S. District Court, 407 U.S. 297, 313-324 (1972), even if their presence is “unlawful, involuntary, or transitory.” Zadvydas v. Davis, 533 U.S. 678 (2001).
Fourth Amendment liberties apply wherever a person has a reasonable expectation of privacy. Katz v. United States, 389 U.S. 347, 353, 359, 361 (1967); Mancusi v. DeForte, 392 U.S. 364, 368 (1968).
Fourth Amendment liberties apply in cases involving national security to the same extent as it applies in cases involving ordinary crimes. United States v. U.S. District Court, 407 U.S. 297, 313-324 (1972).
Nevertheless, FISA systematically violates Fourth Amendment liberties by permitting unreasonable, warrantless electronic surveillance of private communications. The following discussion includes three sections. The first section explains the purpose behind the due process clauses. The second section explains the three core requirements of the due process clauses. The third section explains how FISA’s secret, ex parte court system violates each of these requirements.
A.Purpose of the due process clauses
The purpose of the due process clauses is to protect all persons from mistaken or unjustified deprivations of life, liberty, or property. Carey v. Piphus, 435 U.S. 247, 259 (1978). The due process clauses guarantee every person the opportunity to contest any government action that deprives them of life, liberty, or property. Fuentes v. Shevin, 407 U.S. 67, 81 (1972).
The due process clauses forbid the federal government from conducting electronic surveillance on any person in the United States in violation of the Fourth Amendment without first giving that person the opportunity to contest the government’s actions. Nelson v. Adams, 529 U.S. 460 (2000); Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980); Carey v. Piphus, 435 U.S. 247, 259 (1978); Fuentes v. Shevin, 407 U.S. 67, 81 (1972); and other cases cited below.
B. The three requirements of due process
Due process has three core requirements. The first requirement is full and fair notice. The second requirement is a fair trial, and the third requirement is an impartial tribunal. The following discussion explains the U.S. Supreme Court opinions establishing each requirement.
Full and fair notice. The government must give every person prior notice of any action that may deprive the person of his life, liberty, or property. The notice must also give every person the opportunity to present his objections. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). Furthermore, the notice must inform the person of what he must do to prevent the deprivation of his life, liberty, or property. Goldberg v. Kelly, 397 U.S. 254, 267-68 (1970). Both the notice of hearing and the opportunity to be heard “must be granted at a meaningful time and in a meaningful manner.” Armstrong v. Manzo, 380 U.S. 545, 552 (1965).
Fair trial. Due process requires that every person receive a fair trial before the government can deprive him of his Fourth Amendment liberties. Matthews v. Eldridge, 424 U.S. 319, 333 (1976). The fair trial requirement has two purposes. First, it protects the individual’s life, liberty, or property from arbitrary government encroachment. Second, it ensures fair play for the individual. Fuentes v. Shevin, 407 U.S. 67, 80-81 (1972).
Every individual must receive an opportunity to confront and cross-examine adverse witnesses. Goldberg v. Kelly, 397 U.S. 254, 269 (1970). Every individual is entitled to the assistance of counsel. Goldberg v. Kelly, 397 U.S. 254, 270-71 (1970). The government must disclose its evidence to the individual prior to trial so that the individual has the opportunity to show that the evidence is untrue. Greene v. McElroy, 350 U.S. 474, 496 (1959), quoted with approval in Goldberg v. Kelly, 397 U.S. 254, 270 (1970).
The court’s decision must rest solely on the law and the evidence presented at the trial. The court must publicly state its reasons for its decision on the record. The court must also indicate the evidence upon which it relied. Goldberg v. Kelly, 397 U.S. 254, 271 (1970).
Impartial tribunal. Every individual has the right to a neutral and impartial judge, so that he can present his case “with assurance that the arbiter is not predisposed to find against him.” Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980). This neutrality requirement helps guarantee that the government does not take an individual’s life, liberty, or property based on an erroneous or distorted conception of the facts or the law. Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980); Schweiker v. McClure, 456 U.S. 188, 195 (1982). No judge may decide a case if he is biased for or against any party. Tunney v. Ohio, 273 U.S. 510, 523 (1927); Goldberg v. Kelly, 397 U.S. 254, 271 (1970).
There are two lines of U.S. Supreme Court opinions requiring recusal of the judge. The first line of opinions provides that no judge can hear a case if he has “a direct, personal, substantial, pecuniary interest” in the case. Tunney v. Ohio, 273 U.S. 510, 523 (1927); Caperton v. A.T. Massey Coal Company, 556 U.S. 868 (2009), slip op. at 6.
The second line of opinions provides that no judge can hear a case if “the probability of actual bias on the part of the judge or decision maker is too high to be constitutionally tolerable.” Withrow v. Larkin, 421 U.S. 35, 47 (1975); Caperton v. A.T. Massey Coal Company, 556 U.S. 868 (2009), slip op. at 11. In such cases, “the inquiry is an objective one. The Court asks not whether the judge is actually, subjectively biased, but whether the average judge in his position is ‘likely’ to be neutral, or whether there is an unconstitutional ‘potential for bias.’” Caperton v. A.T. Massey Coal Company, 556 U.S. 868 (2009), slip op. at 11.
C. FISA’s secret, ex parte courts violate all three requirements of due process
The FISA Court and the FISA Court of Review conduct all their proceedings in secret. FISA requires all petitions and submissions to be sealed. 50 U.S.C. § 1881a (l). Records of all FISA Court proceedings, all government applications for electronic surveillance, and all FISA Court decisions on those applications are secret and classified, hidden from public view. 50 U.S.C. § 1803 (c).
The FISA Court and the FISA Court of Review also conduct all their proceedings ex parte. Only the federal government appears in any of their proceedings. FISA does not permit any other party to oppose the federal government. 50 U.S.C. § 1881a (l).
No full and fair notice. In violation of the U.S. Supreme Court opinions cited above, FISA proceedings do not give any person prior notice that the government intends to violate their Fourth Amendment liberties. Only the government receives notice of these secret proceedings. No person receives any opportunity to present his objections to the deprivation of his Fourth Amendment liberties. No person is informed what he must do to prevent the deprivation of his Fourth Amendment liberties. No person receives notice of any hearing at a meaningful time and in a meaningful manner.
No fair trial. In violation of the U.S. Supreme Court opinions cited above, no person receives a fair trial before the government deprives him of his Fourth Amendment liberties. No person receives any opportunity to defend his liberties at a meaningful time and in a meaningful manner. No person receives an opportunity to confront and cross-examine government witnesses or affiants.
No person receives the assistance of counsel. The government is not required to disclose any evidence to any person prior to trial. No person receives an opportunity to show that the government’s evidence is untrue.
Neither the FISA Court nor the FISA Court of Review publicly states the reasons for any of its decisions on the record. Neither court is required publicly to indicate the evidence upon which it relied in making any of its decisions.
No impartial tribunal. In violation of the U.S. Supreme Court opinions cited above, the probability of actual bias on the part of FISA judges “is too high to be constitutionally tolerable.” An “average judge in their position” is not likely to be neutral. Instead, each FISA judge performs his duties in a biased system that creates an “unconstitutional potential for bias.” Caperton v. A.T. Massey Coal Company, 556 U.S. 868 (2009), slip op. at 11.
Reports mandated by 50 U.S. Code § 1885c demonstrate the probability of actual bias. Congress established the FISA Court and the FISA Court of Review in 1978. Between 1978 and 2013, the federal government made 35,529 requests to conduct electronic surveillance in the United States. The FISA Court and the FISA Court of Review denied only eight of the 35,529 requests.
The FISA Court and the FISA Court of Review grant 99.98% of all government requests for electronic surveillance. The FISA Court and the FISA Court of Review are not, and cannot be, the impartial tribunals required by the due process clauses of the Fifth and Fourteenth Amendments.
This article makes no claim that the FISA judges are “actually, subjectively” biased. Caperton v. A.T. Massey Coal Company, 556 U.S. 868 (2009), slip op. at 11. This article directs all its criticism instead to the secret and inherently skewed system in which all FISA judges are required to perform their duties.
FISA proceedings have no due process restraints. FISA proceedings have no adverse parties. FISA proceedings have no opposing counsel. FISA proceedings have no trials. No interested party can ever challenge the government’s claims, either on the law or on the facts. These factors inevitably skew all decisions in the government’s favor.
Secrecy destroys accountability. No judge, however impartial, is omniscient. He cannot consider any information that government agents conceal from him. FISA judges have no basis under FISA for evaluating the legitimacy of the government’s claims or the reasonableness of its requests.
FISA mandates that its secret courts conduct every proceeding ex parte. Ex parte proceedings nurture bias. It is impossible for a judge to render an unbiased decision when only one side has the opportunity to argue its case. Any competent lawyer can persuasively transform an improbable fiction into a probable truth in an ex parte proceeding. There is no balance of presentation by opposing advocates.
The common law tradition universally abhors ex parte proceedings for this precise reason. Rule 3.05 of the Texas Code of Professional Responsibility, the code that governs lawyer conduct in Texas, strictly forbids any Texas lawyer from engaging in ex parte communications: “A lawyer shall not communicate or cause another to communicate ex parte with a tribunal for the purpose of influencing that entity or person concerning a pending matter.”
VIII. National security does not justify FISA or its secret courts
FISA apologists, particularly those in the intelligence community, argue that national security is the most compelling of all governmental interests. National security, they argue, justifies cutting the corners off the Constitution. National security outweighs Article III limits on federal judicial power. National security requires secret courts free of Fourth Amendment restraints. National security is more important than due process of law.
FISA apologists argue, as tyrants have argued for centuries, that national security is the highest good for government. The U.S. Supreme Court rejected this argument in United States v. U.S. District Court, 407 U.S. 297, 313-324 (1972).
The federal government argued in U.S. District Court that government’s duty to preserve national security overrides Fourth Amendment liberties. In rejecting this argument, the U.S. Supreme Court observed that Fourth Amendment protections are more essential in national security cases than in cases involving ordinary crimes. The Supreme Court explained that the federal government tends to regard all opponents of its policies as a threat. This predisposes the federal government to violate rights protected by both the First Amendment and the Fourth Amendment.
“History,” the Court explained, “abundantly documents the tendency of Government – however benevolent and benign its motive – to view with suspicion those who most fervently dispute its policies. Fourth Amendment protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs. The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect ‘domestic security.’” 407 U.S. at 314.
The federal government argued further in U.S. District Court that national security requires secret courts freed from Fourth Amendment restraints on electronic surveillance. Ordinary federal courts, the government claimed, “have neither the knowledge nor the techniques necessary to determine whether there was probable cause to believe that surveillance was necessary to protect national security.” Ordinary federal courts are not competent to evaluate the “large number of complex and subtle factors” in national security cases. Lastly, the disclosures required by the Fourth Amendment create “serious potential dangers to the national security and to the lives of informants and agents” from leaks by judges, clerks, and court reporters.
The U.S. Supreme Court rejected all these arguments. “There is no reason to believe,” the Court wrote, “that federal judges will be insensitive to or uncomprehending of the issues involved in domestic security cases. Certainly courts can recognize that domestic security surveillance involves different considerations from the surveillance of ‘ordinary crime.’ If the threat is too subtle or complex for our senior law enforcement officers to convey its significance to a court, one may question whether there is probable cause for surveillance.” 407 U.S. at 320.
IX. Conclusion
Liberty, not national security, is the highest good for government. Liberty is desirable for its own sake, and not merely as a means of achieving some other goal. The attributes of government, including those designed to maintain national security, are only desirable to the extent that they nurture liberty. It is only by liberty that men can pursue the true, the good, and the beautiful. It is only by liberty that men can direct their minds, their hearts, and their souls to the highest ends of civil society and private life.
The FISA text, the Constitution’s text, and relevant opinions by the U.S. Supreme Court conclusively demonstrate that FISA and its secret, ex parte courts are unconstitutional for three reasons. First, the secret, ex parte FISA courts violate the “case or controversy” requirement of Article III. Second, FISA violates Fourth Amendment liberties from unreasonable searches and seizures.
Third, FISA and its secret, ex parte courts violate the due process guarantees of the Fifth and Fourteenth Amendments. Lastly, the U.S. Supreme Court has ruled that national security does not require secret courts or justify ignoring Fourth Amendment liberties.
Congress passed FISA to prevent electronic surveillance violating First and Fourth Amendment liberties. Rather than preventing unconstitutional electronic surveillance, however, FISA creates a statutory pathway that nurtures and protects unconstitutional electronic surveillance. FISA also creates a system of secret, ex parte courts that systematically deny due process to Americans surveilled under FISA.
No instrument of tyranny is more effective than secret courts, and no justification for their tyranny is more common than national security. The Sanhedrin convicted Christ in illegal secret trials. Caiaphas argued that national security justified Christ’s death. “It is expedient for us, that one man should die for the people, and that the whole nation perish not.” John 11:50.
The Stuart kings justified the Star Chamber’s secret proceedings as necessary to prevent riots and sedition. The Star Chamber’s arbitrary judgments and savage punishments made its name a byword for tyranny. Lord Acton, the great Cambridge historian, observed in 1887 that power tends to corrupt and absolute power corrupts absolutely. Contemporary events may validate Lord Acton’s observation once more.
Congress must repeal FISA and abolish FISA’s secret, ex parte courts. The federal government has no right to bar the courthouse doors to those it targets for surveillance. The federal government has no right to eavesdrop and archive the private communications of Americans without a warrant and without showing probable cause that the individual is committing a crime on the premises to be surveilled.
Most importantly, federal officials have no right to abuse FISA to undermine our elections. The most fundamental liberty of the American people is the liberty to govern ourselves. Congress must repeal FISA in order to maintain respect for our Constitution, in order to preserve our electoral process, and in order to promote confidence in our representative form of government.
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