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Like most Americans, 9th U.S. Circuit Court of Appeals Senior Judge Edward Leavy didn’t even know the Foreign Intelligence Surveillance Act Review Court existed. There was no big sit-down talk about the awesome responsibility he was about to undertake when he was asked to be a part of the FISA Review Court’s three-judge membership in the summer of 2001, just a few months before the Sept. 11 attacks. In fact, Leavy never even spoke with Chief Justice William Rehnquist, who appointed him. Rehnquist had an administrator call him, and Leavy can only speculate as to why he was asked to be part of the panel. The FISA Review Court had never even met in its 25-year history — but the events of Sept. 11 changed everything. In September 2002, the FISA Review Court convened for the first time in an extraordinary three-hour hearing in a steel-walled room deep inside the Justice Department’s Washington, D.C., headquarters. It heard a government appeal of a FISA court ruling that attempted to draw a line between using FISA for collecting information for foreign intelligence and criminal prosecutions. The government argued the use of FISA information in criminal prosecutions is a valuable tool in its war on terrorism. The FISA Review Court’s 3-0 per curiam ruling, which overturned the FISA court, was the product of a panel of judges who had never sat together. Leavy agreed to be interviewed about the experience. “We realized that it in proportion to one case it was going to have a far-reaching effect. [We knew] there was a great deal of focus on it throughout the whole of legal scholarship,” Leavy said. “Everybody was focused on it.” NATIONAL SECURITY Created under the 1978 Foreign Intelligence Surveillance Act, the FISA court and the FISA Review Court were designed to limit government abuses of domestic wiretaps. Former FBI Director J. Edgar Hoover was notorious for spying on prominent Americans in the name of national security. FISA was an attempt to prevent that from happening again. The act called for the chief justice of the United States to appoint seven members to the FISA court to hear requests for warrants to investigate those suspected of being agents of a foreign power, and to appoint three members to the FISA Review Court. Under U.S. wiretap laws, the targets of taps must eventually be notified — a requirement that doesn’t apply to targets of FISA investigations. Over the years, the scope of FISA has grown. In 1995, the law was amended to allow agents to conduct clandestine searches of homes and property. And after Sept. 11, Congress passed the USA Patriot Act, which made it easier for the government to obtain FISA warrants. The number of FISA judges was also expanded, from seven to 11. Almost nothing is reported to Congress about FISA warrants — simply the number asked for and granted. In 2001, that was 932 — twice as many as all other federally approved wiretaps nationwide. For a quarter of a century, the three-member FISA Review Court was dormant. There was no need for it to meet because not once had a government request for a FISA warrant been denied. But in May, the seven FISA judges issued a stunning ruling in In re Sealed Case, 02-001. Sitting en banc, the court issued a 7-0 decision aimed at ensuring that criminal prosecutors in the Justice Department did not use FISA to orchestrate domestic criminal investigations. The court was attempting to formalize a “wall” that had developed over the years between Justice Department prosecutors and FBI agents that prevented prosecutors from collecting information obtained through FISA warrants not subject to the normal protections against unreasonable searches and seizures. Then the court did something else it had never done before — it published its decision rebuking the government. It listed a litany of past misstatements and misrepresentations to the court and wrote that one FBI agent is barred from ever appearing before it again. WALLS OF STEEL The FISA Review Court had its first meeting in a high-security room within a section of the Justice Department apportioned to the judiciary. It is no ordinary courtroom. “The walls are made out of steel,” Leavy said. “They look like corrugated steel.” The design protects the sensitive information heard in the room from prying eyes and ears. To even sit in the room, Leavy had to go through his fourth FBI background check. He also got clearances for his clerks and secretary. “I didn’t want to have to send anybody out of the room in order to discuss the case,” Leavy said. Leavy also had to be instructed in the handling of classified material. He was provided a safe by the Justice Department and was told that he had to keep any material related to Sealed Case either in his immediate possession or in the safe at all times. “If you go to the bathroom, you have to take it with you,” Leavy said. Leavy believes he was appointed to a seven-year term on the FISA Review Court because of his work settling another vexing case involving national security: charges that former Los Alamos National Laboratory scientist Wen Ho Lee passed along sensitive information to the Chinese government. The case had become an embarrassment to President Clinton’s administration by the time Leavy was appointed to moderate it. It quickly reached a conclusion. At the Sept. 9 FISA Review Court hearing, a dozen government lawyers appeared, with no opposition. The judges were Leavy; Laurence Silberman, a senior judge on the D.C. Circuit U.S. Court of Appeals; and Ralph Guy, a senior judge on the Sixth Circuit — all President Reagan appointees. They instructed the lawyers at the outset that the hearing would last as long as was needed. A court reporter was there to record it. Solicitor General Theodore Olson argued the case two days before the anniversary of the death of his wife, Barbara, who died in the Sept. 11 attacks. Leavy said the judges were well aware that Olson was arguing an issue — terrorism — that was deeply personal to him. “Unfortunately and sadly, two days from now the entire nation will pause to reflect on how bad things can be if our government is not prepared with every lawful tool available to protect our country and our people from the immeasurable toll that international terrorism can inflict,” Olson said in his opening remarks to the court. He was aided by an all-star cast. Deputy Attorney General Larry Thompson was there, along with James Baker, the head of the Office of Intelligence Policy and Review; Deputy Assistant Attorney General John Yoo from the Office of Legal Counsel (on leave from Boalt Hall School of Law); Jonathan Marcus, head of the appellate section of the DOJ’s Criminal Division; FBI Deputy General Counsel Marion “Spike” Bowman; and David Addington, counsel for Vice President Dick Cheney. No one from the White House counsel’s office was present. The argument was vigorous. The three FISA judges went into the argument with questions about “bifurcation” procedures — the separation of criminal investigators and foreign intelligence officials that civil libertarians say is necessary to protect against the abuse of warrants that are obtained without the usual protections of probable cause. The judges clearly thought bifurcation was never contemplated by FISA, but Judge Silberman went further and asked, according to the transcript, “Insofar as the Justice Department sort of slid in over the years into this bifurcation, is it not part of the reasonable constitutional concern?” Silberman was alluding to the Patriot Act, which changed the requirement from FISA warrants being sought only when their “primary purpose” is national security to making them available when national security is a “significant purpose.” Olson clearly didn’t want to answer the question. “The FISA court specifically articulated that it wasn’t concerned with the constitutional question. It doesn’t get into the constitutional question. It didn’t address the constitutional question.” Judge Silberman cut him off. “Wait a minute. Stop for a second. Remember this is a strange situation where we don’t have an adversary.” An adversary, Silberman implied, would surely ask that question. Olson said he didn’t think it was a close call at all. Silberman came back at him, using the example of a firefighter who finds drugs in a dwelling and reports them to police. If his primary purpose was to fight fires, certainly it would be constitutional to report the drugs. But what if he went inside only to look for drugs? “It surely can be argued that the congressional adoption of ‘significant’ was unconstitutional. And I, for one, would like a brief on the constitutionality issue,” Silberman said. That was apparently one of the reasons the government was ordered, as Leavy noted during an interview, to provide an additional round of briefing at the conclusion of arguments. A UNANIMOUS DECISION From the transcript, it is clear that Silberman was the most skeptical of the government’s arguments. Nevertheless, he joined the majority opinion. When Leavy was asked if there was ever a question about coming to a unanimous conclusion, he declined to say. He also declined to say why the FISA Review Court didn’t address more fully the errors and misrepresentations in FISA applications revealed in the lower court’s opinion, which caused alarm among civil libertarians. There was never any question about publishing the FISA Review Court’s decision, Leavy said. After all, the lower court had made its decision public. He said the FISA Review Court judges wrote their decision in a way that could be easily declassified and read in a coherent manner. The decision is citable by any other court. “At least we hope so,” Leavy joked. The FISA Review Court drew on other Article III precedents. But Leavy confirmed, as many had wondered, that there is no secret FISA jurisprudence, no classified collection of case law from which the FISA court or the FISA Review Court could draw. Leavy said two amicus curiae briefs were of tremendous value to the court, forming the basis for several questions on points raised by the American Civil Liberties Union and the National Association of Criminal Defense Lawyers. Those groups condemned the decision, however. “Having found that the fox has eaten half the chickens, the court has decided that the fox should have more authority over the chicken coop,” Joshua Dratel, the chairman of the NACDL said when the FISA Review Court’s ruling was released in November. The fact that the Justice Department had no adversary was mentioned by the judges several times during the hearing. Leavy vows that he is a strong supporter of the adversarial process, but in this case, and at this court, he said, there was little that could be done — the security of the United State was at stake. “You just can’t risk letting those people know that they’re targets,” he said. Attorney General John Ashcroft was pleased, immediately announcing changes aimed at making it easier to obtain FISA warrants. Attorneys from the Office of Intelligence Policy Review, which handles FISA warrants for the Justice Department, were dispatched to train agents in FISA applications. The FBI added a FISA department within its general counsel’s office, the process was computerized and Ashcroft said he would personally review any FISA application that was turned down by the OIPR. Because of his role on the court, Leavy was one of the first federal judges to review important aspects of the USA Patriot Act. Passed shortly after Sept. 11, the act is drawing criticism from civil liberties groups and, increasingly, from municipalities. (San Francisco condemned the Patriot Act in a vote Jan. 21.) Since the Patriot Act was passed hastily, the legislation has none of the usual committee reports attached. Those are valuable to courts trying to divine the sometimes-confusing language of new laws. The FISA Review Court relied heavily on statements that senators made on the floor of Congress during debate on the Patriot Act. But one senator that was cited in briefs from Sealed Case and during the argument disputed the government’s interpretation of his words. Originally, the government had wanted to change the requirement that the warrant have a “primary purpose” of foreign intelligence to simply “a purpose.” At the last minute Sen. Patrick Leahy, D-Vt., inserted the words “significant purpose.” Leahy didn’t like the fact that the government cited him as an authority to support its position before the FISA Review Court. “I was surprised to learn that the [Justice] Department cites my statement to support its arguments that there is no longer a distinction between using FISA for a criminal prosecution and using it to collect foreign intelligence,” Leahy said during a 2002 hearing on FISA. “That was not and is not my belief. We sought to amend FISA to make it a better foreign intelligence tool. But it was not the intent of these amendments to fundamentally change FISA from a foreign intelligence tool into a criminal law enforcement tool.” Leavy acknowledges that without the added clarity of committee reports, interpreting the Patriot Act could be more difficult for judges. “That’s going to be problematic,” Leavy said.

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