My Analysis of the Oregon FISA Decision:

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.

1. Statutory Background

  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.

  a) Standing

  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.

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