When Separation of Powers is a Matter of Life and Death

The Leahy-Sensenbrenner USA FREEDOM Act puts the Foreign Intelligence Surveillance (FIS) court in charge of shaping, overseeing, and enforcing minimization guidelines in connection with section 215, pen/trap orders, and section 702, largely taking the Attorney General out of the process of writing minimization guidelines. I’m appalled, because the FIS court has taken control of minimization before, with disastrous consequences; it built a “wall” between intelligence and law enforcement without any legal basis for doing so, and enforced the wall so aggressively that the FBI couldn’t use its best counterterrorism assets to track down the hijackers in late August and early September 2001.  In a very real sense, it was the FIS court’s legal error combined with a self-righteous use of its contempt power that thwarted the country’s last, best chance to stop the attacks.

That the court made terrible errors in 2001 is perhaps understandable. Repeating those errors is not. But the more closely I observe the FIS court the more concerned I become that the peculiar role that we have created for the FIS court makes a repetition all too likely.  I’m testifying to the Judiciary Committee tomorrow on the USA FREEDOM Act, and I took the opportunity to do a bit more thinking in this post about why the FIS court seems to have learned so little from its discreditable performance in 2001.

It may be that the problem is best seen as a constitutional failure.  That is, practical politics  are pushing the FIS court out of an article III  role and into article I. And the FIS court’s failings may be best seen as a problem in separation of powers.

At the outset, the separation of powers issue isn’t obvious. The FIS court’s principal statutory role is to approve or deny intercept and discovery orders involving foreign intelligence. This sounds like a role any court might play; judges approve warrants and wiretaps every day in a criminal context.

In practice, though, the FIS court’s role is quite different. Sitting on the court pulls judges into some of the most sensitive intelligence programs the United States has. It suddenly sees the many terrible things that other nations and movements hope to visit on Americans; it sees how much the government must do just to keep our enemies at bay. It cannot help wanting the government to succeed.

But service on the FIS also exposes judges to some of the most sustained and unidirectional political criticism they are likely to experience in their careers on the bench. The court is routinely mocked as nothing but a rubber stamp, and it’s clear that the mockery stings. In fact, the court recently announced that it was keeping statistics to show how often it forces modifications of FISA orders. See Letter from the Honorable Reggie B. Walton, Presiding Judge, the United States Foreign Intelligence Surveillance Court, to the Honorable Charles E. Grassley, Ranking Member, Committee on the Judiciary, United States Senate (Oct. 11, 2013), available at http://www.uscourts.gov/uscourts/courts/fisc/ranking-member-grassley-letter-131011.pdf. This suggests that the political criticism is hitting home, and perhaps affecting the court’s ability to apply the law with an even hand. After all, no one would want to be judged by a court that goes out of its way to publicize a scorecard of how often it rules against him.

These conflicting pressures, I suspect, push the court into a nit-picking overseer’s mentality toward the intelligence agencies.  Feeling quite legitimate pressure to grant surveillance requests, the court also feels pressure to show its independence.  As the court’s “scorecard” and its occasional public statements suggest, the result is a court that flyspecks FISA orders to a fare-thee-well, demanding many modifications that may or may not be required by a strict reading of the FISA statute.

Ordinarily, of course, if a judge asks the government for things that go beyond his authority, the government appeals. But in the close confines of the FIS court, this is not an easy option. Neither the Justice Department nor the intelligence community wants to alienate the FIS court by suggesting that its demands have no basis in law. Instead, it is more comfortable for all if the intelligence community adopts as many of the court’s suggestions as it can and explains why it can’t adopt the others. And so the FIS stops being a judicial process of argument and ruling; it becomes more of a negotiation, in which the government is tempted to accept any doable measure that the court asks for, whether justified by law or not, and the court does not press for changes that the government persuasively argues it cannot make.

Once the court has negotiated minimization guidelines, it owns them, pet rocks and all. The FIS court necessarily feels responsible for ensuring that they are carried out as intended. To make sure that happens, the court plays an increasingly managerial role in the operation of intelligence agencies.

But the FIS court is not a manager. Real managers have many administrative tools to make sure their policies are carried out. The FIS court has only two: legal rulings and contempt findings. As the court becomes more familiar with the agency, it grows more invested in the implementation of particular measures and policies. The temptation to declare that its favored measures are required by law is very great. Similarly, when the court is disappointed or surprised by how the agency has implemented its measures, the temptation to brandish the contempt power is strong.

In short, I suspect that the disaster of 2001 was not the result of one judge’s bad temperament or faulty legal judgment. It is an institutional temptation, inherent in the managerial role that the FIS court has gradually assumed. Whether that role is consistent with the constitution looks more and more like a difficult question.

NOTE: My full testimony is here: Baker Testimony to Senate Judicary – 11-21-13. Comments on this post should be sent to [email protected]; please tell me if you do not want them attributed to you.

COMMENTS:  Two interesting responses to this post.  One, from r.friedman, needs little comment from me:

Actually, the FIS should be an Article I court and should deal with non-individualized and foreign surveillance activities.  US v. US District Court said only that domestic electronic surveillance was subject to the Fourth Amendment.  This mixing of foreign surveillance, over which the FIS legislation never claimed any legislative power, with domestic surveillance has only weakened the protections against domestic surveillance.  In the non-individualized foreign surveillance area, the FIS is much more like the Bureau of Immigation Affairs, exercising a delegated power of the Attorney General, than it is like a court.  When a court permits even its docket numbers to be censored by the executive, it is only a rubber stamp and a laughingstock.

I don’t agree with the notion that there’s something laughable about the court allowing the executive to control declassification, as it has since classification was created.  The other comment, from Peter Gerdes, is the first candid defense of the “wall” and its cost in American lives that I’ve encountered:

>There are many aspects of your post that I agree with.  For instance the insight that the difficult to appeal and non-adversarial nature of the FISC risks turning it into a effectively administrative agency without the appropriate administrative tools, involvement or institutional role.

Having said this I want to take issue with a couple of points.

1) The FISC made a terrible mistake in 2001.

Ignoring for the moment whether or not the wall of separation had reasonable legal basis the effect was no more catastrophic (or beneficial) than a great many appeals court and SCOTUS decisions.

Whatever you think of their conclusion or methods you have to admit FISC was trying to balance two important values.  On the one hand there is the safety of the populace and the power of the executive branch to respond to foreign threats.  On the other there is the *risk* of serious fourth amendment and sixth amendment violations.  As I document below effective intelligence and counterterrorism programs will generate a great deal of intelligence whose use in domestic criminal cases would violate (or at least weaken) basic constitutional guarantees.

The fourth amendment serves to minimize the invasion of our privacy to those cases where there is a strong reason to believe there is evidence of a crime PLUS restrict the *sort* of things the government can criminalize (e.g., consensual activity between adults) PLUS discourage investigations motivated by a dislike of an individuals.  The sixth amendment ensures that we aren’t convicted on the basis of faceless declarations of a bureaucracy but have the chance to expose the motivations of the people making critical decisions about evidence collection and the nature of those decisions.

The key to ensuring those important consequences of the 4th amendment is provisions requiring collection minimization and a pre-warrant showing that there is a fairly large chance of discovering evidence of a crime.  On the other hand the key to terrorist protection and counterintelligence is finding a needle in the haystack of people and would accomplish nothing if we only monitor conversations when they rise to anything like the standard in criminal cases.  To the contrary we must check whether someone *might* be a terrorist/foreign operative since if we had real evidence normal policing would work fine.

 More importantly, we must monitor innocent phone calls by innocent US persons who happen to be related to terrorists in case they mention a wedding family members might travel to or the names of people close to the suspected terrorists.  Lastly, a key part of uncovering terrorism and spying is the analysis of people’s beliefs and sympathies, e.g., do their religious beliefs support suicide bombing in some cases etc..

Similarly, the sixth amendment ensures that the defendant has the chance to expose biases held by the collectors of evidence, undermine the credibility of their claims to have gathered the evidence in accordance with the warrant and the credibility of their claim not to have cherry picked the evidence to exclude exculpatory evidence.  As questions of bias and compliance with the warrant rules are fundamentally matters of credibility there is a basic constitutional guarantee that the defendent can confront the analyst who controlled the data gathering/saving and in-camera review is insufficient.  Not only will this require revealing the name of the analyst but also the other options they had to collect or ignore data and their previous behavior with such technology.  Information that would compromise national security.

Now maybe you think these protections in the criminal arena are totally absurd in which case you should lead with that point.  If not then the absence of a wall between law enforcement and intelligence has an obvious practical consequence we have already started to see.   To avoid having cases thrown out as fruit of the poisonous tree or because the government refuses to hand over sensitive information that could be exculpatory, e.g., it has the ability to decrypt Skype or track your location using background noise etc.. etc..  We have already seen reports of this with DEA raids and the like.

So the wall served the purpose of protecting important constitutional rights.  The question is simply whether it was grounded in the law and was it a massive mistake.

Comparing the number of people killed in 9/11 to the number killed in criminal activity each year it seems likely the information wall caused far less injuries than Miranda, the exclusionary rule etc.. etc.. The wall was just another balancing choice between constitutional rights and safety which didn’t even affect as many people as many supreme court decisions on criminal law.  Hell, I believe the supreme court deciscion upholding intra-state drug transactions has ruined far more lives than 9/11..

Lastly the question is whether there was any basis in law for such a barrier.  Well there is a basis in common law (and hence constitutional interpretation) for the promulgation a bright line rules by the courts to protect imperiled constitutional rights.  I see no difference between this kind of decision and the Miranda decision.