The Latest FISA Ruling: What Does It Mean

(NOTE: I plan for my next few entries to be reviews of original documents from the perspective of an Enlightened Layperson. I will be starting with the most recent and moving backward to less recent ones, which should make this entry current and some later ones hopelessly behind the times).

The latest episode in the saga of George Bush's warrantless surveillance has been a ruling by the trial judge in the case of Al-Haramain Islamic Foundation v. Bush. The decision is complex and requires a little background to understand.

Numerous individuals have tried to sue the Bush Administration for wiretapping them without a warrant in violation of FISA. In all cases but this one, the Administration has been able to have the suit dismissed on the grounds that the plaintiffs could not prove that they were surveilled. In the Al-Haramain case, however, Justice Department lawyers inadvertently gave the Al-Haramain Islamic Foundation (a Muslim charity suspected of being a terrorist front organization) a document proving such surveillance. Al-Haramain sued and, unlike the other parties, presented proof. The government demanded the document and all evidence of the document be excluded as a state secret and the case dismissed for lack of proof. The original trial judge ruled that Al-Haramain must give up the document, but could quote the document from memory to establish standing. The Court of Appeals overruled that decision and held that the document and any memory of the document were inadmissible under the common law (judge-created) state secrets rule, but might be admissible under FISA rules for dealing with classified documents. The case was returned to the District Court (this time Judge Vaughn Walker) to address that issue.

So what did Walker rule? His decision does not address the core issue of whether FISA unconstitutionally infringes on the President's power (a subject the Administration has gone out of its way to keep any court from ruling on). Rather, it tinkers around the edges of arcane and technical FISA subjects and is ambiguous enough that both supporters and opponents of the Bush Administration's warrantless surveillance can spin it as a victory. The following are its main findings:

FISA is the exclusive means for the President to engage in foreign intelligence surveillance within the US. FISA was enacted in response to serious executive abuses of power and to allow such surveillance outside FISA would defeat the entire purpose of the Act. Although the judge addresses exclusivity mostly in the context of the state secrets privilege it is this ruling Bush opponents regard as a victory.

FISA procedures for dealing with state secrets preempt the common law state secrets privilege. The state secrets privilege is a privilege created by judges in the absence of a statute. Under the state secrets privilege, if the government claims that information is privileged, the judge must somehow decide whether the claim is appropriate, but without disclosing the nature of the privileged information. It may be appropriate for the judge to review the document in camera (privately), but sometimes even private review reveals too much and the judge must determine whether documents are privileged without seeing them! FISA provides that if the government claims a privilege for wiretap documents, the judge "shall" (must) review them in camera and make a determination. Judge Walker held that this specific FISA statutory provision overrides the general common law state secrets privilege.

Article II of the Constitution does not give the President exclusive authority over the state secrets privilege. The Bush Administration, of course, has a longstanding habit of claiming absolute power in all matters of national security beyond the authority of the other branches to question. Although the government managed to avoid giving the judge the opportunity to rule on whether the President has such power in matters of foreign intelligence, it did claim complete power over the state secrets privilege. The judge rejected this argument, pointing out the Congress has passed many laws, and not just FISA, that regulate the executive handling of classified materials. This, too, is a clear smackdown to the Bush Administration and its theories of executive power.

FISA intentionally makes it nearly impossible to know if one has been improperly surveilled. The statute for criminal warrants requires that targets be notified after the surveillance ceases. Such notification is routine, and there have been many lawsuits for improper suveillance. FISA also has a notice requirement but (understandably in matters of national security) there are so many exceptions as to make the requirement almost meaningless. Notification is extremely rare and usually occurs only when the government brings criminal charges. To date, no one has brought suit under FISA's civil provisions, let along won.

FISA procedures for review of classified documents do not begin until plaintiffs have established their standing to sue. This means that Al-Haramain must initiate suit without relying on any classified documents. Only once it has gotten its foot in the door without such documents may the court begin review of the classified document. This is what Bush supporters can claim as victory. The judge found that the plaintiffs were relying on classified evidence to make their initial claim and dismissed their case. He gave them 30 days to refile, this time relying on non-classified evidence.

The Plaintiffs' options, then, are to re-file or to appeal (or some combination of the two). Stay tuned for the next thrilling episode.