Yesterday, Judge Aiken of the U.S. District Court in Oregon handed down a decision that strikes down Foreign Intelligence Surveillance Act’s provisions for granting warrants. In this post, I wanted to explain the issue in the case and the decision’s reasoning, and then I wanted to offer some commentary on the decision. My tentative bottom line: I found Judge Aiken’s decision unpersuasive on the question of Article III standing. On the merits of the Fourth Amendment issue, I think the law is just too murky to call this one way or the other: Judge Aiken’s result appears plausible, although so does the contrary result embraced in 2002 by the Foreign Intelligence Court of Review.
First, some background. The Foreign Intelligence Surveillance Act is the law the government uses to get warrants to monitor suspects terrorists and spies inside the United States. Before the Patriot Act, the government could obtain a FISA warrant to search or monitor someone based on a probable cause showing that the person “is a foreign power or an agent of a foreign power and that the primary purpose of the surveillance is to obtain foreign intelligence information.” The basic idea was that the government had to believe the person was a spy or terrorist (an agent of a foreign power) and that the real reason behind the evidence collection had to be to to protect national security by having the information (that is, so the government can know what the spies and terrorists are doing).
The Patriot Act changed that standard, and it’s those changes that are the issue in the new case. The Patriot Act changed the language so that the standard for obtaining a evidence is probable cause showing that the person “is a foreign power or an agent of a foreign power and that a significant purpose of the surveillance is to obtain foreign intelligence information.” The difference is subtle: the change from “the primary” to “a significant.”
Why the change? The basic idea is to allow the government can get a warrant to monitor spies and terrorists without knowing ahead of time whether it wants to just collect information and keep it or whether it wants to bring a criminal prosecution. Before the Patriot Act, the government had to choose at the beginning whether to take the criminal law route with traditional warrants (based on probable cause that the search would reveal evidence of a crime) or whether to take the FISA route and collect evidence to learn of terrorist plans without thinking about a possible criminal prosecution.
After the Patriot Act, the government can get a FISA warrant in a terrorism investigation and keep open whether it wants to treat the case as a crimal case or an intelligence case. The intelligence information can go to the intelligence agencies, and the evidence of crime can go to the criminal investigators.
The Fourth Amendment issue raised in the Mayfield case is whether a warrant issued under the amended Patriot Act standard is good enough for Fourth Amendment purposes or whether it is too “loose” a standard to make FISA searches constitutionally reasonable.
2. The Mayfield Case
This case is a civil lawsuit by Brandon Mayfield, an Oregon attorney who was surveilled and lated arrested and detained for two weeks as part of an investigation into the 2004 Madrid train bombings. It turned out that Mayfield had nothing whatsoever to do with the bombings, and he was released. After he was released, he sued the government on a range of claims. The only issue left at this stage of the game is Mayfield’s Fourth Amendment claim.
Mayfield’s Fourth Amendment claim is somewhat unusual. He does not argue that the government violated FISA when it obtained orders to monitor him and search his home. Nor does he argued that his particular Fourth Amendment rights were violated in an as applied manner, the usual argument in Fourth Amendment cases. Rather, he argues that the Patriot Act amendments to the Foreign Intelligence Surveillance Act made FISA warrants constitutionally inadequate as facial matter, such that the FISA warrants that were used to authorize surveillance of him were unlawful. This particular opinion concerns Mayfield’s request for declaratory judgment that the Patriot Act amendments to FISA are constitutionally inadequate under the Fourth Amendment.
Judge Aiken granted the request, and struck down what is really the heart of FISA — the provisions allowing the FISA court to issue search warrants both for physical searches and for electronic surveillance. There were two main issues in the opinion: First, did Mayfield have standing under Article III to bring the case, and second, did the FISA law actually violate the Fourth Amendment.
Judge Aiken ruled that Mayfield did have standing to challenge the facial constitutionality of FISA because the government retained derivative evidence from the wiretapping against him. That is, the government still had in its files records of items that had been collected from him. According to Judge Aiken, this continuing possession of information in their files established an ongoing injury in fact. Further, the injury in fact would be cured if Mayfield won the case, Judge Aiken ruled: “it is reasonable to assume that [if Mayfield wins,] the Executive Branch of the government will act lawfully and make all reasonable efforts to destroy the derivative materials when a final declaration of the unconstitutionality of the challenged provisions is issued.” According to Judge Aiken, the government’s possession of derivative evidence and the possibility they would be destroyed if Mayfield won conferred Article III standing.
b) The Fourth Amendment
Judge Aiken then reaches the merits, and concludes that the Fourth Amendment does not permit the government to obtain warrants based on probable cause to believe that a person is an agent of a foreign power if foreign intelligence collection is only a significant purpose of the monitoring. This standard lets the government search the homes and listen in on the calls of terrorist suspects and spies when the government is planning on bringing a criminal prosecution in the case. But that’s not good enough, Judge Aiken concludes: If the government is really approaching an investigation of a terrorist suspect or spy with an eye to charging them with a crime, they need to follow the traditional criminal law standard for a warrant. That is, they need to obtain a warrant under the standard of probable cause to believe a crime was committed, not probable cause to believe the person is a terrorist or a spy.
Judge Aiken notes that her conclusion is contrary to the legal ruling of the Foreign Intelligence Surveillance Court of Review decision in In Re Sealed Case. She concludes that In re Sealed Case is incorrect, and that the FISCR’s analysis is unpersuasive. Because the current version of FISA adopts the Patriot Act standard, the provisions of FISA that authorize FISA warrants to be issued are invalid.
3. My Take
There are two issues here, standing and the Fourth Amendment. I am no standing expert, but Judge Aiken’s analysis of standing and ripness seemed quite weak and unpersuasive to me. On the other hand, I thought her Fourth Amendment analysis was plausible on existing precedents but that the issue was too murky to call one way or the other.
I find myself puzzled by Judge Aiken’s view that Mayfield has standing to bring a facial challenge to FISA because the government apparently coninues to possess “derivative evidence” of the earlier FISA searches. As I understand it, the claim is that there are government agencies that still have files on Mayfield that contain information about the monitoring and searching of him. I’m not a standing expert, but I don’t understand why that could be a continuing injury in fact: what is the “concrete” and “particularized” injury to Mayfield if somewhere there is a file that has information about him?
Under Judge Aiken’s approach, it would seem that everyone who was investigated in the past has ongoing injury in fact: Investigators keep files, and those files say what the investigators learned. Does the fact that somewhere some government computer has a record create an ongoing, concrete, and particularized injury in fact? I find this unlikely. (As an aside, I wonder how this applies to human memory. If an agent remembers what he saw inside Mayfield’s house, does the presence of that memory, stored as a network of neurons in the “computer” of the agent’s mind, create an ongoing injury in fact?)
I was particularly unpersuaded by Judge Aiken’s conclusion that it is “likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision,” as required for standing by Lujan. Judge Aiken’s theory here is obviously speculative: she hypothesizes that “it is reasonable to assume that [if Mayfield wins,] the Executive Branch of the government will act lawfully and make all reasonable efforts to destroy the derivative materials when a final declaration of the unconstitutionality of the challenged provisions is issued.”
But why? I don’t think I have ever heard of “purge of the files” as a Fourth Amendment remedy. True, Rule 41 of the Federal Rules of Criminal Procedure permits a suspect to file a motion for return of property unlawfully seized by a warrant search; if granted, the remedy is return of the property. But I don’t think I have ever heard of the government actually purging its files of all evidence or derivative evidence from a search — every report, every mention, etc. The standard available remedies in Fourth Amendment cases are suppression of evidence and civil damages: Is there now some kind of Constitutional requirement that all data collected has to be deleted, as well? Perhaps legislatures or courts should create such a requirement — very interesting question, I think — but Judge Aiken’s expectation that the government would sort of “do the right thing” and delete the files struck me as precisely the kind of speculation that does not satisfy Article III standing requirements.
b) The Fourth Amendment
The Fourth Amendment issues here are trickier, I think. My tentative bottom line is that this issue is just really murky and there is no clearly correct answer: reasonable minds can differ.
Why do I think that? The problem is the fundamental murkiness of the U.S. Supreme Court’s decision in the Keith case in 1972. It’s one of these early 70s Powell opinions that leaves you scratching your head as to what it means. (Powell had just become a Judge, and I think his early opinions in particular reflect him struggling with the craft.) In that case, the U.S. Supreme Court held that if the government wants to wiretap members of a purely domestic group for national security reasons — that is, a group unrelated to any foreign power — it needs a warrant but the warrant doesn’t need to be a traditional criminal law warrant. Some kind of “reasonable” warrant procedure was enough.
[W]e do not hold that the same type of standards and procedures prescribed [in criminal cases under the Wiretap Act, known as “Title III”] are necessarily applicable to this case. We recognize that domestic security surveillance may involve different policy and practical considerations from the surveillance of “ordinary crime.” The gathering of security intelligence is often long range and involves the interrelation of various sources and types of information. The exact targets of such surveillance may be more difficult to identify than in surveillance operations against many types of crime specified in Title III. Often, too, the emphasis of domestic intelligence gathering is on the prevention of unlawful activity or the enhancement of the Government’s preparedness for some possible future crisis or emergency. Thus, the focus of domestic surveillance may be less precise than that directed against more conventional types of crime.
Given these potential distinctions between Title III criminal surveillances and those involving the domestic security, Congress may wish to consider protective standards for the latter which differ from those already prescribed for specified crimes in Title III. Different standards may be compatible with the Fourth Amendment if they are reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens. For the warrant application may vary according to the governmental interest to be enforced and the nature of citizen rights deserving protection.
. . . It may be that Congress, for example, would judge that the application and affidavit showing probable cause need not follow the exact requirements of § 2518, but should allege other circumstances more appropriate to domestic security cases; that the request for prior court authorization could, in sensitive cases, be made to any member of a specially designated court (e.g., the District Court for the District of Columbia or the Court of Appeals for the District of Columbia Circuit); and that the time and reporting requirements need not be so strict as those in § 2518.
The FISA statute is dealing with a slightly different issue: It is dealing with warrants for “foreign” intelligence collection, not “domestic” intelligence collection, the issue in the Keith case. The U.S. Supreme Court has never decided whether some kind of warrant is needed for the collection of foreign intelligence collection, and if so, what kind of warrant is needed. There are some pre-FISA circuit court precedents that allow totally warrantless monitoring in some circumstances, but they don’t address the constitutionality of the FISA standard under Keith.
But you can see the murkiness of the issue: According to Justice Powell’s reasoning in Keith, the government needs to chose a legal standard that is “reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens. For the warrant application may vary according to the governmental interest to be enforced and the nature of citizen rights deserving protection.” That doesn’t give us much guidance at all, so it’s not too surprising that you would have disagreement as to whether the Patriot Act’s standard is permitted. The Foreign Intelligence Court of Review reached one conclusion; Judge Aiken reached another; and I don’t think the existing legal materials really give us very firm guidance as to which of those decisions is more correct under existing law. I did find some of the characterizations of the FISA law in Judge Aiken’s decision to be incorrect, but I think there’s room in the cases to come out the way she does.
I should say that as a matter of policy, I think the Patriot Act amendment to FISA is a good idea. If the government can establish probable cause to believe someone is a terrorist or a spy possessing foreign intelligence information, that should be enough to monitor them; allowing the government to then use the evidence to prosecute the terrorist or spy in a criminal case seems sensible to me. Indeed, there is an apparent irony in this entire topic: Here the government actually wants to use the criminal court system in terrorism cases, which is usually seen among civil libertarians as a positive thing. Forcing the government to conduct monitoring entirely outside the criminal court system seems unnecessary and unwise to me.
Nor am I particularly persuaded that this is “watering down” the traditional Fourth Amendment warrant process. First, the government still needs to establish probable cause to a federal judge that someone is a terrorist or a spy with foreign intelligence information; that’s not exactly a low standard, as the FISCR properly recognized. It seems unlikely to me that the government would seek to circumvent the traditional Fourth Amendment standard of pc that a person committed a crime (however minor) simply by establishing pc that a person was a terrorist or a spy; if that’s an easier threshold to meet, it’s not clear to me why.
Second, the Keith case that first held that there was a warrant requirement at least in domestic intelligence cases was also quick to say that it wasn’t the same warrant requirement as applies in criminal cases. So if there was a watering down, it was in the same Keith case that first imposed warrant requirement in the first place. Anyway, that’s how I tend to approach the policy question (although I take it as a given that my answer to the policy question isn’t relevant to the issue of whether Judge Aiken’s decision is right or wrong as a matter of Constitutional law– except to the extent it would inform how I personally might balance reasonableness if I were the one wearing the robe, which obviously I’m not).
The government will no doubt appeal, so we’ll have to see what happens next. I’m guessing the Ninth Circuit will reverse on standing, but that prediction is heavily dependent on the panel this case happens to draw. And finally, I should emphasize that my analysis is tentative; I’m offering my instant reaction, but I don’t claim to have all the answers. If you disagree with my take, I would greatly appreciate you calmly and carefully explaining why I am wrong and the basis for your disagreement; that way I can understand my error and correct the post.