Thank you for sharing!

Your article was successfully shared with the contacts you provided.
When it comes to spies, people get suspicious. Ditto that for secret courts. So when a bona fide secret spy court swings into action, it’s easy to get paranoid — even too paranoid. Claiming that “The fix is in” or “The deck is stacked” or “It’s a travesty of justice” would seem to be exactly the sort of hyperventilation that does nothing to further rational discussion and thoughtful analysis. So let me offer here, after rational discussion and thoughtful analysis, some very carefully chosen words: The fix is in. The deck is stacked. It’s a travesty of justice. The secret spy court I’m talking about is formally known as the U.S. Foreign Intelligence Surveillance Court of Review. Until recently, it existed only on paper. But on Nov. 18, it issued its first published decision since Congress created the court in 1978 as part of the Foreign Intelligence Surveillance Act. The Nov. 18 opinion deals with the circumstances in which the government can ask for secret search warrants under FISA. Until now, the presumption has been that the government could get such warrants only when intelligence gathering was its primary goal. If the government’s main goal was to prosecute criminally someone who was a spy or terrorist, it had to get a standard search warrant. The decision, based in large part on the USA Patriot Act that Congress passed in the wake of the Sept. 11 attacks, lets criminal prosecutors and prosecutorial purposes play a more active role in determining when to request a FISA warrant. The decision, of course, has caught people’s attention. Some see it as a dangerous step toward secret police. Others defend it as ensuring needed flexibility for those in the front lines of the war on terror. Put all of that aside. Maybe the court is right; maybe not. But what is clear is that this isn’t an appeals court worthy of the name. Appeals courts normally provide a level playing field for the prosecution and the defense. But the FISA review court is tilted entirely toward the government. FUNDAMENTALLY UNFAIR In our judicial system, which emphasizes fundamental fairness and due process, we normally like courts of appeals. Actually, we love them. What could be better than ensuring that more judicial eyes look at any given decision? But then in normal circumstances, appeals courts don’t structurally favor either the cops or the robbers. For any given issue of how the law should be read, either side can appeal the lower court’s interpretation. While the trial judge might be granted deference, neither the prosecution nor the defense has a built-in advantage. So what’s wrong with the FISA review court? When we’re dealing with secret proceedings, don’t appeals provide an especially important safeguard? Actually, no. Think of it this way. When the government wants a FISA warrant, it goes to the lower secret spy court, known simply as the FISA court. If it “wins,” it gets the warrant. Let’s call the number of cases that the government wins at the FISA court stage in a given year “X.” And if the government loses? It can appeal to the review court. What can the review court do? It can affirm. If the review court affirms every denial of a warrant from the court below, where does the government stand? The government still has X warrants in its pocket. That means, in a worst-case scenario — if the government loses every appeal — it is no worse off than if it had never appealed at all. But the review court has another option — it can reverse the court below and grant the warrant. Let’s call the number of cases that the government wins on appeal “Y.” So long as the government wins at least one case on appeal that it lost below, it has improved its situation. With one or more successful appeals, the government has X plus Y warrants. What about the targets of these search warrants? If they could appeal a FISA decision, the government’s equation would be a bit more complicated. Sometimes, the target would turn to the review court and win. Let’s call the number of the targets’ appellate victories “W.” So the tally of the government’s wins would be X plus Y minus W. That minus means that the appeals process might sometimes leave the government in a worse situation and the target in a better situation. That’s the adversarial process at work. HELPING ONE SIDE The hitch, though, is that the targets can’t ever appeal FISA court rulings. That’s because targets don’t know when hearings take place or what rulings are issued. That makes sense — it would kill the whole idea of getting a secret warrant if the target knew about it. But, as a result, the appeals process gets corrupted. Where both prosecutors and defendants can appeal a ruling, there’s no way to know, on the whole, whether prosecutors or defendants will benefit more. But where the target can’t appeal, we do know: It’s the government, and only the government, that can benefit from the appeals process. Or think of it this way. The lower FISA court holds government searches to some kind of test. That’s arguably a step forward, as far as the rule of law goes. But with both the FISA court and the review court, the rule of law takes a step backward. That’s because all the review court can do with warrant requests is give the government another bite at the apple. More chances to win with nothing to lose brings the government closer to a world with no judicial checks at all. To make things even worse, the FISA statute lets the government take a third bite at the apple. Should the review court ever rule against the government, the government can petition the Supreme Court to consider the matter. With this Supreme Court option figured into the calculation, the government’s track record could improve to X plus Y plus Z, with “Z” being the number of cases where the government loses before the review court, but wins at the high court. Meaning, this appeals process doesn’t advance fundamental fairness; it subverts it. WHAT ABOUT MAGISTRATES? To be fair, there is an analogy that defenders of the current FISA system can draw. They can claim that the proper comparison isn’t between the FISA courts and criminal trials, but between the FISA courts and federal magistrates who issue standard criminal warrants for searches and wiretaps. Those aren’t adversarial proceedings, either — only the prosecution appears before the magistrate. And in those few instances where the government loses its bid for a warrant, it can shop its case to another magistrate, or it can appeal — formally, or just by raising a stink — to the trial judge who oversees the magistrates. Isn’t that just like the FISA appeals system? It’s a fair point. But there are distinctions that make a difference. For starters, with regular criminal warrants, the “appeals” process isn’t so much a formal system as a matter of well-recognized loopholes. FISA appeals, on the other hand, exist because Congress by statute explicitly established a system it expected the government to use — a system that only the government can benefit from. Also, the substantive legal standards are different. For criminal warrants, the government needs probable cause to believe that “the evidence sought will aid in a particular apprehension or conviction for a particular offense,” according to the Supreme Court. Not so with FISA warrants. There, according to statute, the government needs to show mainly that “there is probable cause to believe that … the target of the electronic surveillance is a foreign power or an agent of a foreign power.” The FISA standard isn’t nothing, but it is clearly a lower barrier than criminal probable cause. So maybe it makes sense to allow the government to “appeal” standard criminal warrant denials, since it has a higher burden to meet in the first place. But with FISA warrants, the lower standard and the appeals mechanism together tilt the playing field that much further the government’s way. And to the extent that the two situations are still parallel, well — didn’t your mother teach you that two wrongs don’t make a right? HOW TO UNTILT So what’s the solution? The easy answer is simply to have Congress eliminate the appeals process for FISA warrants, while keeping the entry-level FISA court intact. Maybe we do need FISA warrants. But the government should get only one chance to make its case with a given set of evidence. If the FISA court says no, the government should buttress its case — or drop it. This isn’t to say that the FISA review court is getting the law wrong. As my colleague Stuart Taylor Jr. argues, the decision seems to be on strong legal ground. But that doesn’t justify perverting the process to get the right result. Another option is to challenge the current system in the regular, nonsecret courts. The lack of an adversarial process is the key. It turns the FISA appeals process into a stacked system that probably violates procedural due process. And it might also lead to an argument that there’s no case or controversy necessary to give the FISA courts their jurisdiction in the first place. How will these arguments get brought before judges — since, after all, the targets of FISA warrants aren’t included in the process? Ironically, the Nov. 18 decision from the FISA review court might provide the answer. In its opinion, the review court opened the door to let prosecutors more closely guide the FISA process in the interest of bringing criminal cases. It’s probable that this will lead to more criminal prosecutions. And it’s possible that some of those cases will trigger constitutional challenges to the FISA system. If so, then the decision, though criticized as a violation of civil liberties, might help to unstack the deck. Evan P. Schultz is associate opinion editor atLegal Times . He can be reached at [email protected].

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.