The One Case that Questions FISA

Notwithstanding my previous post, there is one case that does seem to imply that FISA unconstitutionally encroaches on the President’s power. That case is In re Sealed Case, 310 F.3d 717 (Foreign In. Surve. Ct.Rev. 2002). This is a troubling case, not only for opponents of Bush, but for his supporters as well, because, while hinting that FISA may be unconstitutional, it generally assumes otherwise.

The Sealed Case occurred when the FISA court granted an application for a warrant to wiretap some Al Qaeda suspects, but placed conditions on the warrant to ensure that it was used for intelligence gathering and was not controlled or directed by officials with the intent to prosecute. The government appealed the restrictions, the only appeal ever made in the history of the FISA court.

FISA permits warrants of U.S. persons (citizens or permanent legal residents) only if they are agents of foreign powers (including international terrorist organizations), and defines an “agent” of a foreign power as one who engages in criminal activity on that power’s behalf. Since FISA defines such agency as inherently criminal, the court held that the distinction between intelligence gathering and prosecution is no longer logical and that no such distinction (as the Truong case made in the case of an unwarranted wiretap) is required. Although in 1995 the Justice Department began establishing a “wall” between criminal and intelligence activities, the court ruled that such a policy was a matter of executive discretion and not a part of the FISA statute and that the court therefore had no authority under the statute to require such a wall. The appeals court also ruled that this “may” be unconstitutional overreaching by the FISA court and might violate the separation of powers because the court was trying to dictate executive procedure (p. 731). The ruling stopped short of actually saying the FISA court’s actions were unconstitutional, but it strongly implied as much.

On the other hand, since FISA (as modified by the Patriot Act) required that intelligence gathering be a “significant” purpose of the wiretap and note merely a “purpose,” the court held that a FISA wiretap could not be used solely for prosecution. The government had to have some other purpose than just prosecution, such as thwarting an ongoing terrorist conspiracy, and some non-prosecutorial options. (The ruling did not contain any hints as to what such options might be). The case then spends some time discussing the difference between a FISA warrant and a regular Title III criminal warrant and finds that, although the FISA procedure is less stringent than the criminal procedure in some respects, it is more stringent in others.

It is then that the decision makes its troubling statement:

[A]ll other courts to have decided the issue [before FISA was enacted] held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. . . . We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power. The question before us is the reverse, does FISA amplify the President’s power by providing a mechanism that at least approaches a classic warrant and which supports the government’s contention that FISA searches are reasonable. (p. 742).

The meaning about amplifying the President’s power is clear enough; it means is a FISA warrant automatically sufficient for prosecution as well as intelligence gathering. But what does this decision mean in saying that FISA may not encroach on the President’s inherent power? Does it mean that FISA may not encroach on the President’s authority to engage in warrantless foreign intelligence surveillance? If so, then FISA is necessarily unconstitutional because it does just that. If that is what is meant, the opinion becomes even more troubling afterward. The court concludes that the distinction between intelligence gathering and prosecution is a false dichotomy and that the true distinction should be between ordinary crime and national security. If one combines this with the previous statement, that FISA cannot encroach on the President’s inherent authority of warrantless surveillance, it would logically seem to follow that in cases of foreign intelligence, the executive can not only wiretap but prosecute without a warrant. The case then becomes truly alarming as it discusses certain “extraordinary situations” in which the government’s “special needs, beyond the normal need for law enforcement” permit not only warrantless, but suspicionless searches (p. 745). And what greater emergency, more extraordinary situation, and greater threat could there be than the September 11 attack?

This would appear to come close to saying the President can not only wiretap without a warrant for prosecution as well as intelligence gathering, he can wiretap anyone he wants without a warrant and without even suspicion! But the court backs off from that. Most suspicionless searches the Supreme Court has allowed have been roadblocks and checkpoints. A wiretap is more invasive. The court then backs off from the entire alarming line of speculation and rules that even though the standard for obtaining a FISA wiretap are less stringent than those for obtaining a criminal wiretap, they met the Fourth Amendment standards of reasonableness “[e]ven without taking into account the President’s inherent constitutional authority to conduct warrantless foreign intelligence surveillance.” (p. 746).

So the issue of the President’s “inherent authority” is left hanging in the air, satisfying no one. If the court does mean to rule FISA unconstitutional, why doesn’t it come out and say so? In fact, as noted above, Sealed Case cannot quite bring itself even to say that the court acted unconstitutionally in dictating executive procedures, a much less drastic ruling. What the court means in discussing the President’s “inherent authority” is maddeningly unclear. Bush’s supporters naturally cite this brief discussion as proof that FISA is unconstitutional. Critics generally dismiss this as dictum (i.e., an opinion thrown in that is not legally binding because the issue is not before the court).

Two other interpretations seem plausible to me. The court may simply mean that FISA, in requiring a warrant, may not encroach on the President’s authority to engage in foreign intelligence surveillance, i.e., that the FISA court must grant a warrant if the President would have authority to engage in warrantless surveillance before FISA was passed. Or it may be an invitation to the President to challenge the constitutionality of FISA. If so, the President so far has not taken up the invitation, perhaps because he doubts that the Supreme Court would support his position.