Do surveillance court’s secret rulings violate U.S. Constitution?

By Alison Frankel
July 8, 2013

The more we find out about the mostly secret inner workings of the U.S. Foreign Intelligence Surveillance Court, the more questions we should all have about the intersection of national security and Fourth Amendment restrictions on unreasonable searches by government authorities. Based on recent comments by U.S. Supreme Court Justices Elena Kagan and Stephen Breyer, the court is primed for an inevitable constitutional review of the National Security Agency’s program of gathering phone and Internet data from foreign suspects and U.S. citizens alike under provisions of the Patriot Act and the Foreign Intelligence Surveillance Act. That debate will surely center on the Fourth Amendment, but a lesser-known argument that has popped up in some cases challenging FISA wiretaps raises different constitutional objections to the NSA’s widespread data collection. And just as it was in California’s ban on gay marriage, Article III of the Constitution could be the linchpin of any Supreme Court decision on the legality of the NSA program.

First, I want to recap a pair of terrific Sunday pieces in which The Wall Street Journal and The New York Times reported on the ex parte legal precedent the FISC is setting, outside the view of anyone but the government officials asking the court to bless widespread data collection. The Journal’s piece, by Jennifer Valentino-DeVries and Siobhan Gorman, focused on the FISC’s broad interpretation of the word “relevant” in classified orders dating back to the mid-2000s. According to the Journal, the 11 judges on the surveillance court have moved away from the Supreme Court’s standard that government requests for information are “relevant” if they present a “reasonable expectation” that the information will be related to an ongoing investigation. Instead, the FISC apparently reasoned that anti-terror investigations are so different from ordinary criminal cases that a much broader category of information falls under the umbrella of relevance. The FISC’s secret widening of the definition of relevance, according to the Journal, seems to be the justification for the NSA’s collection of phone and Internet data from U.S. citizens under Section 215 of the Patriot Act.

The New York Times’s Eric Lichtblau reported that the FISC’s classified rulings “reveal that the court has taken on a much more expansive role by regularly assessing broad constitutional questions and establishing important judicial precedents, with almost no public scrutiny.” In addition to expanding an exception to the Fourth Amendment’s warrant requirements when the government can identify “special needs” in terror cases, he wrote, the surveillance court has made new law governing intelligence related to cyberattacks and nuclear proliferation, serving as a “parallel Supreme Court” that will “most likely shape intelligence practices for years to come.”

The FISC’s rulings could all be deeply rooted in constitutional history. The judges’ opinions on relevance, special needs and other data-gathering justifications could be the most compelling decisions ever written, sweeping away any concerns about government overreaching through the force of reason and precedent. Unfortunately, we will probably never know whether that’s true because we will probably never see the FISC’s classified rulings. The American Civil Liberties Union and the Electronic Frontier Foundation have been engaged for years in Freedom of Information Act litigation with the Justice Department over access to FISC records, but as you can see from the extremely limited FISC public docket, the Justice Department has generally prevailed in shrouding FISC proceedings under the cloak of national security. I’ve found one published opinion from the surveillance court, as well as two rulings by the District of Columbia Circuit Court of Appeals stemming from FISC decisions, in 2002 and 2008. Despite an assertion in The New York Times’s story that the surveillance court has issued more than a dozen rulings empowering the government to collect our data, those scant few opinions are apparently the only ways we in the public realm can judge the FISC judges.

Some members of Congress asked the surveillance court earlier this year to release declassified versions of its rulings, but in a March 27 letter to Senator Dianne Feinstein (D-Calif.), the court’s presiding judge, U.S. District Judge Reggie Walton of Washington, said that it’s so difficult to separate the court’s legal reasoning from the specific facts before it that excising classified material “would result in a remnant void of much or any useful meaning.” Even issuing summaries of its interpretation of the law, Walton said, was problematic.

“Article III courts cannot issue advisory opinions,” he wrote. “For a court to revisit and reformulate its prior reasoning outside the context of a matter actively before the court may implicate that prohibition.”

It’s quite interesting that Walton cited limits on the power of federal courts to issue advisory opinions in his letter to Congress because that’s the exact constitutional point that the ACLU and other civil rights groups tried to raise in a challenge to FISC-approved mass data collection under the FISA Amendment Act of 2008. In a case originally known as Amnesty International v. John McConnell (the former NSA chief), ACLU staff lawyers and outside counsel from Proskauer Rose argued that the 2008 law is unconstitutional not only because it violates the Fourth Amendment strictures on unreasonable search and seizure but also because it authorizes the FISC to justify warrantless wiretapping through what are essentially advisory opinions the court is not constitutionally empowered to issue.

According to the ACLU’s summary judgment brief in the Amnesty case, the 2008 law changed the standard for what the government had to show the FISC court in order to win the right to collect information. “The Act does not require the government to demonstrate to the FISC that its surveillance targets are foreign agents, engaged in criminal activity, or connected even remotely with terrorism,” the brief said. “Indeed, the statute does not require the government to identify its surveillance targets at all.” Instead, according to the ACLU, the statute gave the government the ability to request “mass authorization” orders from the FISC, permitting data collection from “thousands or even millions” of people, including U.S. citizens who happened to be in communication with foreign suspects swept up in mass orders.

The FISC’s authorization of mass data collection based on non-specific intelligence needs, the ACLU argued, amounted to advisory judicial opinions, which are unconstitutional under Article III’s “case or controversy” requirement. “The FAA’s scheme of judicial review violates Article III and the principle of separation of powers because the FISC issues orders in the absence of any case or controversy, reviewing only the legality and constitutionality of the government’s programmatic procedures in the abstract and leaving all questions about individual monitoring to the executive branch,” the brief said. “Under the FAA, the FISC is not presented with a case or controversy fit for judicial resolution…. Instead, the FISC issues mass acquisition orders after reviewing only the general procedures that will govern the government’s surveillance program; the question of who to monitor, for how long, and for what purpose is left entirely to executive branch officers, and the only oversight of the government’s implementation of its FAA authority is conducted by the executive branch itself.”

The Justice Department, of course, said in its response to the ACLU brief that the ACLU misread the FISA Amendment Act. The FISC’s role under the 2008 law is no different from that of other federal courts asked to approve warrants, Justice argued. The government conceded that traditional wiretap applications “involve a more fact-specific form of (court) review,” but argued that the FISC orders granting mass data collection are not merely advisory since the government must abide by them.

The trial judge overseeing the case, U.S. District Judge John Koeltl, never reached the issue. In 2009, he ruled that the civil rights groups that brought the case couldn’t meet their own burden under Article III of establishing that they’d been injured by the 2008 law. That ruling eventually went to the Supreme Court, which held this year, in a major decision on Article III standing in Clapper v. Amnesty International, that Amnesty and its fellow plaintiffs could not challenge the constitutionality of the FISA amendment because they couldn’t show that they were certain to be harmed by the law.

You probably recall that after last month’s revelations of widespread data collection, the ACLU filed a suit in its own name, protesting the FISC’s order that Verizon turn over information on its customers’ phone and Internet usage. ACLU attorney Alex Abdo told me Monday that the civil liberties group isn’t worried about its standing to bring the Fourth Amendment challenge because the ACLU is a Verizon customer whose records were presumably subject to the FISC order. So will the ACLU now get to test its theory that the FISC doesn’t have power under Article III to authorize mass data collection?

It’s conceivable but unlikely, Abdo said. This is confusing, but here’s why. The ACLU’s new suit challenges the Verizon order, which permits data collection under Section 215 of the Patriot Act, not under the 2008 FISA Amendment Act. The ACLU’s Article III arguments in the Amnesty case, by contrast, were based on statutory language in the 2008 law. So even though the ACLU believes that the 2008 law is the basis of the NSA’s PRISM data collection program, which was disclosed soon after leaks on the Patriot Act-based spying, its suit is restricted to alleged constitutional violations in the Patriot Act. Abdo told me that it’s possible the FISC has based mass authorization of data collection under Section 215 on an overly broad reading of its power under Article III, but since the court’s rulings are classified, the ACLU can’t raise a challenge on those grounds (at least for now). “If the court is doing something based on its own authority rather than the statute, it’s harder to make the Article III argument,” he said.

The ACLU, in other words, doesn’t have standing under the Supreme Court’s Clapper ruling to raise Article III objections to PRISM and can’t use Article III arguments to challenge data collection under the Patriot Act because it doesn’t know for sure how FISC has justified mass authorizations.

So why have I just written 1600 words about Article III and the FISC? Because there’s a criminal case in federal court in Ft. Lauderdale, Florida, that raises the issue. The government has accused the brothers Raees Alam Qazi and Sheheryar Alam Qazi of participating in a terrorist plot to blow up a New York landmark. The defendants believe that evidence against them was obtained through the 2008 FISA Amendment Act and moved to compel the government to disclose whether it was. A federal magistrate granted the motion in May, as Wired has reported. Lawyers for the defendants subsequently moved to declare the FISA Amendment Act unconstitutional under the Fourth and First Amendments and Article III, incorporating the entire ACLU summary judgment brief from the Amnesty International case. That motion is pending.

If we’ve learned nothing else from the Supreme Court this term, it’s that the Roberts Court is fascinated by Article III and standing questions. Will Article III be the vehicle that gets warrantless data collection to the court?

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