Author: Scott M. Noveck
I. The 2001 FISA Amendments
For purposes of criminal surveillance, the Fourth Amendment’s prohibition on unreasonable searches and seizures traditionally requires a showing of probable cause before a search warrant can be issued. However, a series of Supreme Court cases have suggested that a lower standard of proof may be acceptable when surveillance is instead conducted for purposes of national security. See Katz v. United States, 389 U.S. 347, 358 n.23 (1967); United States v. United States District Court (Keith), 407 U.S. 297, 322 (1972). In 1978, Congress passed the Foreign Intelligence Surveillance Act (FISA) to create such a special procedure “under which the Attorney General can obtain a judicial warrant authorizing the use of electronic spying in the United States for foreign intelligence purposes.”
FISA authorizes the Attorney General to conduct searches and surveillance for national security purposes so long as the activity is approved by a special FISA Court within 72 hours. As originally enacted, FISA required that to obtain this approval a high-ranking Executive Branch official needed to submit an affidavit (a) establishing that the target of the search or surveillance is an agent of a foreign power, where “foreign power” is defined to include (among other things) a “group engaged in international terrorism”; and (b) certifying that the “primary purpose” of the search or surveillance was to obtain “foreign intelligence information.” The FISA Court is required to accept this certification unless it is found to be “clearly erroneous,” which is an exceedingly deferential standard of review. In 2001, the USA PATRIOT Act amended FISA’s certification requirement so that the government need only assert that obtaining foreign intelligence information is a “significant” purpose of the search or surveillance, rather than the “primary” purpose that FISA originally demanded.
II. District Court finds that FISA Amendments Violate Fourth Amendment Requirement of Probable Cause for Criminal Surveillance
Following the March 11, 2004 terrorist attacks in Madrid, Spain, Plaintiff Brandon Mayfield was subject to extended surveillance and his home and were repeatedly searched pursuant to authorization granted under this new, lower standard. Mayfield subsequently challenged the constitutionality of the 2001 amendments, arguing that they allow the government to evade normal probable cause requirement for criminal surveillance by simply asserting that it also desires to gather foreign intelligence information in the course of the surveillance.
The facts of Mayfield’s case demonstrate how the 2001 amendments “allow the government to avoid traditional Fourth Amendment judicial oversight” when seeking to obtain a surveillance order.” Shortly after the Madrid bombings, an FBI analysis of latent fingerprints lifted from one of the explosives was tentatively matched the prints to Mayfield, a Muslim lawyer living and practicing Oregon. Further investigation, however, uncovered evidence strongly suggesting that Mayfield could not have been involved in the attacks:
Mayfield did not have a current passport; he had not been out of the country since completing his military duty as a U.S. Army lieutenant in Germany in the early 1990s; [upon reexamination,] the fingerprint identification had been determined to be “negative” by the [Spanish National Police (SNP)]; the SNP believed the bombings were conducted by persons from northern Africa; and there was no evidence linking Mayfield with Spain or North Africa.
Despite this potentially exonerating evidence, the government sought and received authorization from the FISA Court, based on the government’s certification that a “significant purpose” of its investigation would be to collect foreign intelligence information, to repeatedly search Mayfield’s home and office and to conduct surveillance of Mayfield and his family. While the government would have been hard-pressed to claim that obtaining foreign surveillance information was its primary purpose in light of the evidence that Mayfield could not have been involved in the foreign attacks, the new “significant purpose” standard created by the 2001 amendments effectively allowed the government to give little weight to this mitigating evidence.
The District Court agreed with Mayfield that “the primary purpose of the electronic surveillance and physical searching of Mayfield’s home was to gather evidence to prosecute him for crimes,” and thus that the Fourth Amendment requires a showing of probable cause before the government can conduct searches and surveillance. Because the amended version of FISA “now permits the Executive Branch to conduct surveillance and searches of American citizens without satisfying the probable cause requirements of the Fourth Amendment,” the court struck down the FISA amendments as unconstitutional on their face.
III. The FISA Amendments Also Raise Other Fourth Amendment Concerns
In addition to undermining the probable cause requirement, the District Court identified three other ways in which FISA allows the government to overcome traditional Fourth Amendment protections. First, whereas “[t]he Fourth Amendment ordinarily requires that the subject of a search be notified that the search has occurred,” searches authorized under FISA are typically conducted without the target being notified of the search or having an opportunity to challenge it in court. Second, FISA often allows the government to conduct broad-based surveillance of the subject, whereas normally “[t]he Fourth Amendment prohibits the government from conducting intrusive surveillance unless it first . . . describe[s] with particularity the things to be seized as well as the place to be searched.” Third, FISA authorized surveillance terms of as long as 120 days, whereas warrants for surveillance in criminal investigations are limited to a term of 30 days.
IV. Ruling Creates Circuit Split with FISA Court of Review
Finally, the District Court considered and declined to follow the analysis of the FISA Court of Review in In re Sealed Case, 310 F.3d 717 (FISA Ct. of Rev. 2003), which held the 2001 amendments to FISA to be reasonable and consistent with the Fourth Amendment. The District Court found the reasoning in that case to rest on “two fundamental premises” that are “contradictory,” inconsistent with the U.S. Supreme Court’s various Fourth Amendment “special needs” cases, and unlikely to be adopted by the Ninth Circuit given its previous case law. In addition, the District Court pointed out the potential procedural deficiencies of the FISA Court of Review, where only the government is allowed to participate in oral argument or appeal the court’s decision. This ruling therefore creates a clear split among federal courts on an important issue of national security and constitutional law, and further review is likely to follow.