Court Decisions After FISA

Since FISA was passed, it has never been challenged in court as an unconstitutional infringement on executive power, and therefore no court has ruled on the subject. It has been challenged by defendants, as a violation of the Fourth Amendment, and on various separation of powers grounds that are at least partially relevant to the executive argument.

Although FISA was written during the Cold War in a context of rivalries between nation states, it was never limited to that purpose. From the very start, FISA applied to foreign terrorist organizations as well as to Soviet spies. For instance, two of the earliest cases to address FISA involved arms smuggling to the IRA; U.S. v. Falvey, 540 F.Supp. 1306 (E.D.N.Y. 1982) and U.S. v. Megahey, 553 F.Supp. 1180 (E.D.N.Y. 1982) (links not available; Findlaw only gives access to cases after 1995). It has also been applied to Armenians attacking Turkish targets (U.S. v. Sarkissian, 841 F.2d 959) and even to the anti-Castro Omega-7 (U.S. v. Badia, 827 F.2d 1458).

The judge in Falvey at least partly addressed the issue of the President's inherent power. He commented that FISA was the fifth post-Watergate law passed by Congress restricting the President's "inherent" power in the wake of abuses that had been discovered. He further held that, "I find that Congress has struck a reasonable balance between the government's need for foreign intelligence and the rights of citizens" (p. 1312). Of course, the primary point here was that Congress had not leaned too far in favor of the government, but this also secondarily implies that Congress had not gone too far in restricting the President. The judge further found that, while the government could not use a warrantless wiretap primarily for prosecution, it could use a FISA wiretap primarily for prosecution and did not have to switch to a criminal warrant.

The Megahey found FISA in compliance with the Fourth Amendment and also addressed the separation of powers issue as to whether FISA unconstitutionally involved the courts in foreign policy. Since this case involved international terrorism, the defendants argued that requiring the courts to determine who is and is not a terrorist (as opposed to a freedom fighter) unconstitutionally involves the courts in making foreign policy decisions. The Judge disagreed. He noted that the FISA statute defines terrorism as seeking to acheive political goals through acts that would be criminal if committed in the United States. "These terms hardly call for delicate or sensitive political determinations fraught with foreign policy implications. Rather, they call for findings of objective fact not unlike those made in courtrooms every day." The defendants also questioned whether Article III of the Constitution (the article establishing a the federal judiciary) allows a court that hears on ex parte proceedings, i.e., proceedings in which only one party appears. The judge ruled that federal courts have authority under all cases arising under federal law, and that a "case" simply requires that there be an actual controversy over a real world issue, as opposed to a request for an abstract declaration of law. The judge also dismissed the argument that the FISA court is unconstitutional because FISA judges serve on the panel for seven years when the Constitution requires federal judges to be life tenured. FISA judges are life tenured as federal judges, it is only their service on one particular panel that is temporary, and judges temporarily serve on may other judicial panels as well. The judge also dismissed the argument that FISA judges are being unconstitutionally required to make political decision. (I am not clear how this differs from the argument on foreign policy).

This ruling was made only at the trial level and is therefore not a strong authority. However, the Megahey case was appealed and upheld in the case of U.S. v. Duggan, 743 F.2d 59 (2nd Cir. 1984). The Court of Appeals upheld the decision that deciding whether the statutory definition of international terrorism applies does not require judges to make political decisions. Nor did requiring a FISA warrant to collect foreign intelligence unconstitutionally involve the courts in foreign policy decisions. The FISA court is simply required to verify that the executive made the statutorily required declarations that the wiretap is for legitimate foreign intelligence gathering and, if the target is a U.S. citizen or permanent legal resident, that the declarations are not clearly erroneous. "We agree with Judge Sifton [the trial judge who decided Megahey] that such limited review does not unduly inject the courts into the making of foreign policy." Furthermore, "We regard the procedures fashioned in FISA as constitutionally adequate balancing of the individual's Fourth Amendment rights against the nation's need to obtain foreign intelligence information."

Admittedly, this does not directly address the claim that the President's authority to engage in warrantless wiretapping to gather foreign intelligence cannot be constitutionally restrained. (It would not be in the defendants' interest to raise that issue!) But it does address the complaint of many of Bush's supporters that FISA unconstitutionally causes the courts to overreach by meddling in foreign policy or political decision making.

There are a few other rulings on FISA of less importance. U.S. v. Pelton, 835 F.2d 1067 (4th Cir. 1987) (a case of a former NSA employee selling valuable secrets to the Soviet Union) held that FISA provisions are "reasonable both in relation to the legitimate need of government for intelligence information and protected rights of citizens." U.S. v. Cavanaugh, 807 F.2d 787 (another Soviet spy) again ruled that FISA is not unconstitutional because the judges serve on the FISA panel for only seven years instead of for life, and added for good measure that it was constitutional for the Chief Justice of the Supreme Court to appoint FISA judges instead of the President. Other FISA cases addressed the fine line between intelligence gathering and prosectution and whether a FISA warrant is adequate to prosecute, or whether a criminal warrant is required. None, to repeat, directly addressed the issue of whether FISA unconstitutionally infringes on the President's power, but to the extent that the courts found a "reasonable balance" between the need to gather intelligence and rights of privacy, and to the extent that they found no judicial overreaching, the courts implicitly rejected that argument.

There is, however, one recent case that broadly hints without saying that FISA unconstitutionally infringes on the President. That one will be addressed in my next post