FISA and State Secrets

Re: Al Haramain Islamic Foundation, et al. v. Barack H. Obama, et al.


FOREIGN INTELLIGENCE SURVEILLANCE ACT

In light of the terrorist attacks of September 11, 2001, the federal government has begun a sweeping overhaul of the nation’s surveillance powers. Many of these changes have been implemented on the grounds that the federal government has the express authority to protect the homeland and its’ citizens from foreign or domestic threats.

One of the more invasive means of achieving this goal is the Foreign Intelligence Surveillance Act, found at 50 U.S.C. §1801 (“FISA”). Under FISA, government officials in limited circumstances may eavesdrop on telephone conversations without a FISA warrant. FISA affords civil remedies to “aggrieved persons” who can show they were subjected to warrantless domestic security surveillance. Under the Supremacy Clause of Article VI of the United States Constitution, FISA takes precedence over the so-called “state secrets privilege”.

To prove a prima facie case of unlawful electronic surveillance under FISA, the plaintiff must present specific and articulable facts showing they are an “aggrieved person” within the meaning of §1801, and they have met this burden using non-classified evidence.

Between March and June of 2004, several phone conversations occurred between attorneys Wendell Belew and Asim Ghafoor, both of who are U.S. citizens. These conversations also included Soliman al-Buthi, a director of Al-Haramain located in Saudi Arabia. The foregoing parties were discussing ideas for the defense of Saudi nationalists with ties to Osama Bin Laden, whom were being sued by victims of the September 11 attacks.

Unknown to the plaintiff, the plaintiff had been classified by the government as a “Specially Designated Global Terrorist”. The National Security Agency thereafter began intercepting their telephone communications without a warrant. The plaintiffs sued for civil damages, claiming violations of their 1st, 4th, and 6th Amendment rights under the U.S. Constitution. The plaintiffs also sued under a breach of the separation of powers doctrine, and the International Covenant on Civil and Political Rights.

As part of their argument, the plaintiffs sought production of a so-called “Sealed Document”, which at the time of the request, was in the custody and control of the defendant. The Defendant moved to dismiss, under the common law state secrets privilege. The defendants argued that if disclosed, the disclosure would, inter alia, undermine national security. The District court rejected the Defendant’s argument, arguing that “plaintiffs should have an opportunity to establish standing and make a prima facie case, even if they must do so in camera.” The defendants appealed.

On appeal, the Appeals court was faced with three (3) issues: 1) Whether the subject matter of the litigation is a state secret; 2) Whether the plaintiff has standing to bring about a suit; 3) Whether the plaintiff can establish a prima facie case, (and the government can defend) without using state secrets. The Appeals court concluded that the subject matter of the litigation was not a state secret. The court also concluded that but for the “Sealed Document”, the plaintiff would not have standing. (Incidentally, the defendants denied plaintiffs’ counsel any access to classified filings, despite a determination by the plaintiff’s counsel that plaintiff was entitled to top secret clearance. The court reversed and remanded the District court’s ruling, stating that because the disclosure of the Sealed Document would undermine national security and the government’s capabilities, disclosure is barred. Accordingly, the Appeals court remanded the case.

On remand, the Defendants filed a second motion to dismiss, claiming the plaintiff’s FISA action did not pre-empt the state secrets privilege. The Defendants further argued that the court lacks jurisdiction, because sovereign immunity has not been waived by section 1810 of FISA. The District court denied this motion. The Defendants also argued that the this is not a FISA-controlled case, and therefore, they are authorized to hide all facts helpful to the plaintiff behind the state secrets privilege. The court also sternly rejected this contention. Finally, the Defendants argued that the plaintiff failed to meet their burden of proof, insofar as they were under “surveillance”. Accordingly, the plaintiffs moved for Summary Judgment.

The court that granted the Plaintiff’s motion for Summary Judgment, holding that the State Secrets Privilege does not afford the defendant’s the ability to conceal their FISA warrant. The court then went further, stating that there was no such warrant for the surveillance of the plaintiffs.

In their ruling for the plaintiffs, the court held that the plaintiffs have submitted sufficient evidence to establish a prima faciae case that they were an “aggrieved” party, whom were also subject to warrantless searches. Curiously, the Court further states that one not need be the target of electronic surveillance to be an “aggrieved person”


CONSITUTIONAL CONSIDERATIONS

Arguably, the most unique quality of constitutional law is its’ adjustability to contemporary contexts. In the instant case, the Court was asked to determine how 21st century electronic surveillance comports with constitutional amendments which are centuries old. Despite the specificity of the holding, there remain numerous issues which remain unanswered. I will address each of these issues in turn.

Federal Courts must be careful when they tread into the waters of politics. While Federal Court jurisdiction is wide, it is specifically limited. Federal Courts may not hear issues which involve political questions. A political question is one which is “a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it” Nixon v. U.S., 113 S.Ct. at 733 (1993). I find it troubling that the Federal District Court of Northern California was afforded jurisdiction in this matter. Because the National Security Agency is under the control of the Department of Defense, it is within the Executive Branch. However, it shares a unique nexus with the Judicial Branch, as evidenced by the warrant requirement for electronic surveillance. By definition, this would fall within the definition of a political question under Nixon. Therefore, an argument can be made that the case could not have been heard by the District Court.

The next issue the plaintiffs present is a violation of the 1st, 4th and 6th Amendments to the United States Constitution. In the spirit and custom of brevity, this memorandum will only address the implications under the 4th Amendment. The Fourth Amendment states that

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Subsequent to the enactment of FISA, the courts have interpreted the provision of the Act authorizing the electronic surveillance of an agent of a foreign power, to require a lesser showing of probable cause. The reason for this reduced level of justification is to meet the legitimate need of the government to gather intelligence information, while protecting the rights of citizens. The courts have held this requirement to be consistent with the warrant requirement clause of the Fourth Amendment. See U.S. v. Pelton, 835 F.2d at 1075 (1987). However, safeguards have been implemented to ensure the protections afforded under the 4th Amendment are not infringed. Inter alia, Pelton stands for the proposition that both judicial review and a showing of reduced probable cause are required to obtain a FISA warrant. Id. It appears that the opinion issued by Justice Walker is consistent with this standard.
One of the issues that remain to be unanswered by this decision is the level of cause needed to justify a domestic surveillance versus an international surveillance. Incidentally, both counsel for the plaintiff in the instant case are U.S. citizens. These attorneys, together with their client, have had numerous telephonic conversations within the United States. However, they have also had international conversations. Applicable case law and a meticulous reading of the statute give insight as to the level of cause required to conduct both forms of surveillance. FISA allows domestic use of intercepted evidence in a criminal prosecution as long as a "significant" international objective was in view at the intercept's inception. In other words, the primary objective must be for international surveillance, while domestic surveillance is secondary, and only admissible under limited circumstances. However, this is neither raised by the parties, nor addressed by Justice Walker in his opinion. In essence, evidence of a domestic crime acquired during an intercept under FISA that is reasonable (because officers have probable cause to believe it concerns traffic between a foreign state and one of its agents in the United States), can be used in a domestic prosecution without offending the Fourth Amendment. See U.S. v. Ning Wen, 477 F.3d, at 898 (2007)
Another issue that remains unanswered is the level of cause necessary to suppress evidence when the State Secrets Privilege is invoked. In the instant case, the Plaintiff adequately presented “a showing of necessity”, or “admittedly substantial need for the document to establish its case,” under United States v. Reynolds, 345 US at 10, (1953). In response to this necessity, the defendant moved to suppress the evidence under the State Secrets Privilege. After the Appeals court conducted an in camera review of the evidence, the court wrote “We are satisfied that the basis for privilege is exceptionally well documented” and that disclosure of “information concerning the Sealed Document and the means, sources and methods of intelligence gathering in the context of this case would undermine the government’s capabilities and compromise national Security.” 507 Fed.3rd at 1204. Despite this sweeping language, the Appeals court did NOT articulate the level of cause they applied in reaching their decision. Nevertheless, the “Sealed Document” was barred from disclosure.
CONCLUSION
The central issue presented before the U.S. District Court for the Northern District of Californian was whether the government is civilly liable for eavesdropping on their telephone conversations without a FISA Warrant. The government ultimately denied the defendant’s motion to dismiss the matter, and granted the plaintiff’s motion for summary judgment.

At first glance, government officials acting under FISA have broad authority. Whereby, in certain circumstances, they may eavesdrop on telephone conversations without a FISA warrant, for both international and domestic criminal prosecutions. While factually I find this finding to be ethically troubling, I applaud Judge Walker for strictly applying the law, as outlined in Section 1801 of the United States Code.

Additionally, the Al-Haramain matter raises important issues regarding the State Secrets Privilege; Specifically, the court’s decision that a claim of an unconstitutional application of FISA takes precedence over the privilege. Incidentally, the exact definition of “state secret” remains unanswered. Nevertheless, it appears that the Federal Courts are slowly beginning to reign in the broad police power afforded to federal officials under FISA, while still maintaining a clandestine approach to defining “state secret”.