Man Without Qualities

Monday, August 05, 2002

Article III Judges and the Return of FISA

The United States Constitution is divided into "Articles," where Article III deals with the federal judiciary. Only one federal court is required by the Constitution: the United States Supreme Court. The Constitution also permits "such inferior Courts as the Congress may from time to time ordain and establish," but Article III imposes certain restrictions if those inferior courts are created (which, of course, they have been). For example, Article III federal judges must be appointed for life, their salaries cannot be reduced and they cannot be removed from office while they maintain their "good behavior." All federal district court judges and federal appeals court judges are and must be "Article III judges."

There are also so-called federal "Article II courts." Article II of the Constitution pertains to the Executive (that is, the President and persons and administrative bodies under the President). The "judges" who preside over "Article II courts" are really administrators. They need not be appointed for life and they do not enjoy the other benefits of "Article III judges." The most famous "Article II courts" were the bankruptcy courts until the Supreme Court invalidated them in 1982, holding that Congress must either restrict their powers or make bankruptcy judges full Article III judges.

The Foreign Intelligence Surveillance Court is a special federal court, one of those "inferior Courts as the Congress may from time to time ordain and establish," on which a rotating group United States District Court judges sit. Every person sitting on that court is required by statute to be an Article III judge.

I rehearse all this here because the National Legal Aid & Defender Association does not seem to understand it. The National Legal Aid & Defender Association, in a very eccentric summary of the USA Patriot Act of 2001, asserts:

Wiretaps or other surveillance can be obtained for any criminal investigation under the lower standards of the Foreign Intelligence Surveillance Act (FISA) if the FBI certifies that “a significant” purpose of the surveillance is to gather intelligence information (i.e., though the primary purpose is for a criminal case). Instead of showing probable cause before an Article III judge, the required showing would be just “reasonable suspicion” before the Foreign Intelligence Surveillance Court, which meets in secret, with no notice to suspects. Similar secret procedures are extended to warrants for production of documents and things, under sec. 215. Evisceration of probable cause requirement for searches raises Fourth Amendment questions. Sunsets in four years.

It seems unwise, to say the least, to rely on this summary of a complex law in a difficult area where it is apparent that the author of the summary, and whoever else edited it, does not understand that Foreign Intelligence Surveillance Court judges are and must be Article III judges. Nor is the standard for issuance of a warrant under FISA "reasonable suspicion" - it is "probable cause." The USA Patriot Act did not change the FISA "probable cause" standard.

If John Lewis, former assistant director of the FBI’s National Security Division, which has oversight on counter-terrorism, thinks that to obtain a warrant from the Foreign Intelligence Surveillance Court under FISA "[t]he standard is ‘reasonable suspicion’ the person may be involved in undermining national security," then he is quite simply wrong. Or, possibly, he has been misquoted. For example, the very article in which Mr. Lewis is quoted as making this statement also quotes a report of the National Commission on Terrorism as asserting that the Justice Department Office of Intelligence and Policy Review (OIPR) "does not generally consider the past activities of the surveillance target relevant in determining whether the FISA probable cause test is met."

That is why Congress is now holding hearings on a bill that would replace the FISA probable cause test with a reasonable suspicion standard where non-US persons are concerned, exactly as has been suggested by the Man Without Qualities in a prior post. Nor would such an amendment of FISA raise serious Constitutional issues, as also pointed out here in that same prior post. Congress is not holding hearings to consider a redundant amendment of FISA - the people under the dome aren't that out of it.

So why does Tony Adragna have so many difficulties with all this?

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