Secret Evidence in the Investigative Stage: Fisa, Administrative Subpoenas, and Privacy

AuthorJameel Jaffer
PositionDeputy Director, National Security Program, American Civil Liberties Union.

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    The author was counsel to the plaintiffs in some of the cases discussed herein, including American Civil Liberties Union v. Department of Justice, 265 F. Supp. 2d 20 (D.D.C. 2003) and 321 F. Supp. 2d 24 (D.D.C. 2004); Doe v. Ashcroft, 334 F. Supp. 2d 471 (S.D.N.Y. 2004), vacated and remanded sub nom. Doe v. Gonzales, 449 F.3d 415 (2d Cir. 2006); and Doe v. Gonzales, 386 F. Supp. 2d 66 (D. Conn. 2005), appeal dismissed as moot, 449 F.3d 415 (2d. Cir. 2006). The author was also counsel to amici in In re Sealed Case, 310 F.3d 717 (FISA Ct. Rev. 2002), cert. denied, 538 U.S. 920 (2003).

Government surveillance is largely invisible, but it becomes visible to the public when the government introduces the fruits of surveillance in a criminal trial. In a criminal trial, defense attorneys may challenge government surveillance by challenging the introduction of evidence that they believe to have been obtained unlawfully. Because criminal trials are open to the public, criminal trials afford the public an opportunity to learn what kinds of surveillance the government conducts, and for what purposes the fruits of government surveillance are being used.

Not all government surveillance, however, results in a criminal trial. This is true of surveillance that is conducted for law enforcement purposes, but it is particularly true of surveillance conducted for "foreign intelligence" purposes-that is, surveillance meant to gather information about foreign powers and their agents. Such surveillance was at one time uncommon, but this is no longer the case. Since September 2001, the government?s reliance on foreign intelligence surveillance has increased dramatically. Last year, for the first time, the Foreign Intelligence Surveillance Court-the court that has overseen foreign intelligence inside the United States since 1978-issued more surveillance warrants than were issued by all other federal and state courts combined.1 Who was targeted by this surveillance, and for what purposes were the fruits of such surveillance used? Should we be concerned about public oversight?

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This article summarizes the proceedings of the panel entitled "Secret Evidence in the Investigative Stage," which considered the implications of the government?s increased reliance on foreign intelligence surveillance. Panelists discussed the statutory and constitutional framework under which such surveillance is conducted; the legal instruments through which surveillance is conducted (including electronic surveillance orders, national security letters or "NSLs", and administrative subpoenas); the privacy implications of government surveillance; the extent to which secrecy surrounding foreign intelligence surveillance is justified; and the effect of the Patriot Act on foreign intelligence authorities that preexisted the September 2001 terrorist attacks. The panel was ably moderated by Professor Peter Swire.2

Of the four panelists, the first to speak was Hon. Ralph B. Guy, Jr., who is currently Senior Judge on the United States Court of Appeals for the Sixth Circuit. Judge Guy was also the presiding judge of the three-judge panel that decided the only case to come before the Foreign Intelligence Surveillance Court of Review. The second speaker was Congressman Jerrold Nadler, who represents New York?s Eighth Congressional District. Congressman Nadler serves on the House Judiciary Committee and has been an outspoken critic of some of the surveillance provisions of the Patriot Act. Our third speaker was Karl Metzner, from the U.S. Attorney's Office for the Southern District of New York. Mr. Metzner has been involved in several major terrorism prosecutions, including a handful of prosecutions under the "material support" statutes. I spoke last, focusing on cases I have litigated as an attorney for the American Civil Liberties Union-principally, ACLU v. Department of Justice, which was a suit brought under the Freedom of Information Act concerning some of the Patriot Act?s surveillance provisions,3 and Doe v.Ashcroft, which is an ongoing constitutional challenge to the Patriot Act's "national security letter" provision.4

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Following the panelists' formal remarks, Professor Swire invited discussion among the panelists and questions from the floor.

I The Panelists
A Judge Guy's Remarks

Judge Guy began by discussing the Supreme Court?s 1972 decision in United States v. United States District Court (Keith).5 Keith was the first Supreme Court decision to distinguish "intelligence" surveillance from "law enforcement" surveillance, and it was one of the decisions that led to the passage of the Foreign Intelligence Surveillance Act (FISA) in 1978.6 The case stemmed from the prosecution of three men-Lawrence "Pun" Plamondon, John Forrest, and John Sinclair- for bombing a CIA office in Ann Arbor, Michigan. The day of the bombing, Judge Guy recalled, was also the day that he was asked to serve as Chief Assistant United States Attorney in the Eastern District of Michigan. Judge Guy accepted the offer and ultimately became involved in the case.

The Keith case took a fateful turn when defense counsel filed a motion requesting that the government disclose whether it had conducted electronic surveillance of any of the defendants. Judge Guy knew that neither his office nor the FBI office in Detroit had conducted any such surveillance. However, the Justice Department stepped forward and said that it had overheard one of the defendants in the course of surveillance directed at the Black Panthers in California. The Justice Department stated, moreover, that it had conducted the surveillance without prior judicial authorization. In his role as Chief Assistant U.S. Attorney, Judge Guy reviewed the intercepted material and found that it had little to do with the government?s case. He was surprised when the Justice Department did not simply agree that the evidence should be suppressed. Rather than abandon the intercepted evidence, the Justice Department pressed the issue.

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It ultimately became clear, said Judge Guy, that the government saw the case as an opportunity to establish a legal principle. Judge Guy quoted Judge Damon Keith, the trial judge who had ordered the government to disclose the surveillance information. The government contended "the electronic monitoring of Defendant Plamondon's conversation was lawful in spite of the fact that the surveillance was initiated and conducted without a judicial warrant."7 Judge Keith wrote that it was the government?s position that "the United States Attorney General, as agent of the President, has the constitutional power to authorize electronic surveillance without a court warrant in the interest of national security."8

Judge Guy observed that although the government?s legal argument was "not very cogent," it reflected a particular political context. At the time of the Plamondon prosecution, President Richard Nixon and Henry Kissinger, then Nixon?s Assistant for National Security Affairs, were confronting serious domestic unrest relating to the war in Vietnam. In the Detroit Riot of 1967, Judge Guy noted, 43 people were killed, 1189 were injured, and 7231 were arrested. The domestic political situation was tense, and it was against this background that the government made its arguments to Judge Keith. Judge Keith, however, was not persuaded. He noted that another court had been presented with the same arguments only about a month before, in United States v. Smith, and that the Smith court had rejected the government?s arguments and ordered disclosure.9 Judge Keith adopted the reasoning of Smith and ruled against the government. With two cases against them, Judge Guy recalled, the government wanted the Supreme Court to hear the matter, and it did, eventually.

Before the Supreme Court, Judge Guy said, the government made the same argument it had made before Judge Keith. Justice Powell, who wrote the Court?s decision, was sympathetic. He stated that "successive Presidents for more than a quarter of a century" had authorized electronic surveillance in internal security matters without prior Page 11 judicial approval.10 He also observed, however, that the resolution of the constitutional issue required sensitivity not only to the government?s right to protect the nation from unlawful subversion and attack, but also to the citizen?s right to be secure against unreasonable searches and seizures, a right which extends to protect private speech from government surveillance.11 The Court ultimately rejected the government's position, holding that the executive branch cannot constitutionally engage in intelligence surveillance relating to domestic security threats without prior judicial authorization.12

Judge Guy noted that the Keith decision left open the question whether a warrant would be required in intelligence surveillance related to foreign threats. In 1978, Congress enacted FISA to fill that vacuum. That Act, which created a seven-member Foreign Intelligence Surveillance Court and a three-member Court of Review, was intended to subject foreign intelligence surveillance to judicial oversight.13

According to Judge Guy, the Justice Department understood FISA to have created a "wall" between foreign intelligence investigations, on the one hand, and law enforcement investigations, on the other. This understanding of FISA became an issue after the September 2001 attacks. After Congress enacted the Patriot Act, the Justice Department approached the FISA Court with a new set of guidelines meant to enable closer cooperation between intelligence and law enforcement agents meant, in other words, to dismantle the wall between them. The members of the FISA Court, however, rejected the new procedures in an en banc opinion. Judge Guy...

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