Quick Take on Judge Aiken's FISA Decision

Marty Lederman

Judge Aiken of the U.S. District Court in Oregon has declared that the new PATRIOT-ACT-enacted standard for FISA warrants is unconstitutional. I only have time right now to quickly describe the issue:

Way back in the day, before FISA, the Supreme Court had ruled that in an ordinary criminal law investigation, and, for that matter, in a non-criminal-law context involving investigations of domestic security issues, the Fourth Amendment generally imposes certain requirements before a search may be made. The most important of these requirements is that the government demonstrate to a court that there is probable cause to believe that the target of the search has committed a crime. In addition, the Fourth Amendment ordinarily requires that the subject of a search be notified that the search has occurred; requires that the warrant describe with
particularity the things to be seized as well as the place to be searched; and (at least according to the Ninth Circuit), limits the surveillance to 30 days. (Caveat: These are very simplified descriptions of the law.)

FISA does not require any of these things. Most importantly, it does not require a court to find probable cause to believe that the person being searched has committed unlawful acts -- instead, the required proof is only that the person be an agent of a foreign power, and in making that determination, the FISA Court is very deferential to the government's representations.

How can FISA do that? Why don't the ordinary Fourth Amendment rules apply? Well, the Supreme Court specifically preserved the question of whether these same Fourth Amendment rules apply where the government's objective is not criminal law enforcement or domestic intelligence collection, but is instead the collection of foreign intelligence information. And in a series of cases in the years preceding FISA, several courts of appeals held that in such a foreign-intelligence investigation, all the Constitution requires is probable cause to believe that the target is an agent of a foreign power.

OK, but what about a case in which the government has both objectives -- in which it wants to investigate crimes and collect foreign intelligence? After all, virtually all terrorism-related criminal investigations will also serve the purpose of collecting foreign intelligence information, as well. Mixed motives, in other words, will be very common. What then? Well, the leading pre-FISA case (Truong) held that as long as the primary purpose of the investigation is foreign-intelligence collection, rather than criminal law enforcement, then the ordinary Fourth Amendment rules are loosened.

What Congress did in the PATRIOT Act, however, was to lower this standard: Under FISA as amended, the much less burdensome FISA rules apply not only where foreign-intelligence collection is the primary purpose of the search, but also where it is merely "a significant purpose" of the search. This standard, of course, will virtually always be satisfied whenever the government is investigating an international crime, especially an international terrorist crime. As David Kris previously testified on behalf of DOJ:

Even when the government’s prosecutorial purpose is at its zenith, there will still always (or almost always) be a “significant” non-prosecutorial purpose for conducting a FISA search or surveillance. For example, detection of espionage or terrorist communications networks, taskings, and other tradecraft will invariably assist in developing appropriate diplomatic, military, economic, or other non-law enforcement countermeasures. Use of these or other non-law enforcement countermeasures [such as for stopping an ongoing conspiracy] almost always is at least a significant purpose for conducting a search or surveillance under FISA. . . . [Thereore] the government should be able to meet that [significant foreign intelligence information] test, even when prosecution is its dominant motive.

Therefore, what the PATRIOT Act does, in effect, is to say that the ordinary Fourth Amendment rules do not apply when the crime being investigated involves foreign terrorism.

And that's exactly what happened in the Mayfield case decided yesterday. Brandon Mayfield is an Oregon lawyer who happens to be Muslim, and who the government (wrongly) suspected of being connected to the Madrid bombings. (As the Associated Press notes, "[t]he Mayfield case has been an embarrassment for the federal government." That's for sure. See the DOJ Inspector General's Report. The government last year settled part of Mayfield's lawsuit for a reported two million dollars and a formal apology.)

The government did not have probable cause to believe that Mayfield was connected with the Madrid bombings. Instead, all that the government demonstrated to the FISA Court was probable cause to believe that Mayfield was an agent of a foreign power (which, again, turned out not to be true). And therefore, it received a FISA Court order permitting searches of Mayfield's home and possessions -- searches in which all the ordinary Fourth Amendment rules (see above) were ignored, even though the government's primary objective was to investigate a crime. (I should note that the DOJ IG Report concluded (see pages 224-226) that the primary purpose of the searches was for obtaining foreign intelligence information. But the government made no such showing to the FISA Court, and apparently the government therefore conceded a primary criminal law-enforcement objective for purposes of the motion before Judge Aiken, as she wrote: "Notably, the primary purpose of the electronic surveillance and physical searching of Mayfield's home was to gather evidence to prosecute him for crimes. Mayfield was ultimately arrested to compel his testimony before a Grand Jury investigating his alleged involvement in the crimes of bombing places of public use, providing national support to terrorists and conspiracy to kill, kidnap, maim or injure persons or damage property in a foreign county. The government stipulated that it did not demonstrate to the FISC that its primary purpose in wiretapping, electronically eavesdropping, or physically searching Mayfield's home or law office was to gather foreign intelligence. "In the FISA applications, the government did not seek to establish, and under the terms of FISA was not required to establish, [a primary foreign-intelligence-collection purpose].")

The district court held, consistent with Truong and with the basic thrust of Supreme Court decisions, that as long as criminal law enforcement is the primary purpose of the search, ordinary Fourth Amendment rules apply, and the fact that the government also would obtain foreign-intelligence information (again, something that is true in virtually all investigations of foreign terrorist crimes) is not a sufficient reason for relaxing those constitutional rules. As the Fourth Circuit explained in Truong (629 F.2d at 915):

[T]he executive should be excused from securing a warrant only when the surveillance is conducted “primarily” for foreign intelligence reasons. We think that the district court adopted the proper test, because once surveillance becomes primarily a criminal investigation, the courts are entirely competent to make the usual probable cause determination, and because, importantly, individual privacy interests come to the fore and government foreign policy concerns recede when the government is primarily attempting to form the basis for a criminal prosecution. We thus reject the government's assertion that, if surveillance is to any degree directed at gathering foreign intelligence, the executive may ignore the warrant requirement of the Fourth Amendment.

So, if this was the constitutional law prior to September 11, 2001, why did Congress feel free to enact a statute lowering the Fourth Amendment standards whenever foreign-intelligence collection is a "significant" additional purpose of a criminal investigation? Because the FISA Court of Review, in 2002, disagreed with the Fourth Circuit, and concluded (310 F.2d at 746) that the ordinary Fourth Amendment rules do not apply where the primary purpose of the surveillance or search, even if law-enforcement-related, is to obtain evidence of foreign intelligence crimes (rather than other sorts of crimes). It was this opinion by Judge Silberman, and Congress's subsequent action in reliance on the Silberman opinion -- rather than yesterday's decision by Judge Aiken -- that represented the dramatic shift in the Fourth Amendment doctrine, a development that (as Judge Silberman conceded) created a stark conflict with the prevailing lead precedent, Truong, which Judge Silberman described as "rest[ing] on a false premise" and as establishing a test (the "primary purpose" test) that "was inherently unstable, unrealistic, and confusing."

In her decision yesterday, Judge Aiken sided with the old Fourth Circuit ruling (which in my view is much more consistent with, although not entirely compelled by, existing Supreme Court precedents), and expressly rejected the FISA Court of Review's contrary view. [UPDATE: I just noticed Dan Solove's fine post on the case. Dan is grateful that Judge Aiken did not follow Judge Silberman's decision, which Dan describes as "rather glib and not very convincing."]

The resulting split of authority is not surprising. As my former OLC colleague Patricia Bellia has written:

By shifting the required certification from "the purpose" to "a significant purpose," . . . [the PATRIOT Act] necessarily reopens the seemingly settled question of FISA's constitutionality under the Fourth Amendment. First, to the extent that courts have recognized a foreign intelligence exception to the Fourth Amendment's warrant requirement, the question is whether that exception should apply where the gathering of foreign intelligence information is not the main purpose of the surveillance or search. Second, in applying Keith's directive to assess the reasonableness of FISA's procedures in relation to the government interest at stake and the rights of individuals, courts have measured whether FISA's probable cause standard was properly adapted to the peculiarities and complexities of foreign intelligence gathering--an inquiry that seems less appropriate when foreign intelligence gathering is not the principal purpose of FISA coverage. Whether the shift to the Patriot Act's "significant purpose" is constitutional remains an open question. In its first ever decision, the Foreign Intelligence Surveillance Court of Review (FISCR) . . . has concluded that the change is constitutional, at least when construed to permit use of FISA where the primary purpose of the surveillance or search is to obtain evidence of foreign intelligence crimes (as distinct from ordinary crimes). The FISCR nevertheless acknowledged that "the constitutional question presented by this case . . . has no definitive jurisprudential answer."

Because there is no clear-cut answer, and because there was already a sharp "circuit"-split on the question even before yesterday's ruling, this is a question that the Supreme Court is likely to confront soon. And its ramifications are very significant: The question, in effect, is whether many of the most important Fourth Amendment protections simply do not apply whenever the government is investigating a "foreign intelligence"-related crime, such as most cases of international terrorism (because, again, in virtually all such cases the government will also have a genuine and significant intelligence-collection objective, even where the law-enforcement objective is primary or dominant).
Posted 4:31 AM by Marty Lederman [link]