No Easy Answers

OCR Job, manually converted to html. Source: http://www.aclu.org/pdfs/safefree/fisc_order_08162007.pdf

My first thought was that the Foreign Intelligence Surveillance Court (FISC) had shifted the chore of stiffing the public for information about the legal justification for warrantless surveillance from itself, to the NSA/DOJ/snooper. It turns out my first thought sucked.

My second thought is that the government should (meaning this is the best response, not necessarily that I like it) reply that the FISC lacks the power to issue the order it issued, because the FISC is a court of limited jurisdiction, and the order to respond to the ACLU motion is not something associated with that limited jurisdiction. The jurisdiction of the FISC is set forth in 50 USC 1803(a).

... shall have jurisdiction to hear applications for and grant orders approving electronic surveillance anywhere within the United States under the procedures set forth in this chapter ...

That's the sum total of the FISC jurisdiction, to hear applications for and to grant orders under FISA. The ACLU motion is not an application for a surveillance order under FISA.

Just as a quick aside, 50 USC 1803(b) establishes a Court of Review (FISCR), which has similarly limited jurisdiction.

... a court of review which shall have jurisdiction to review the denial of any application made under this chapter

Judge Kollar-Kotelly's Order in response to the ACLU motion is acting completely outside of the FISC jurisdictional limits and powers, established by a statute duly passed by Congress and signed into law by the president.

True, the FISCourt rules that provide for motion and appearances relate to parties who have applied for court orders (i.e., "warrants"). True also, in some cases, those appearances may be by non-government attorneys. But in every case, without a single exception, the issue before the Court is an application for a court order to undertake surveillance for the purpose of acquiring foreign intelligence information.

Arguing the other side, other federal courts entertain motions of non-parties to unseal. I have in mind the recent unsealing of the affidavits of Special Counsel Patrick Fitzgerald in the case where he sought a court order to compel testimony of reporters Miller and Cooper in the Plame leak investigation. So, it isn't literally true that a Court will only take papers that are (a) from a party to the action, and (b) cast "exactly" in the framework of their jurisdictional grant.

But even if the FISCourt somehow construes its grant of jurisdiction to include entertaining motions to unseal, by the public (Katie, bar the door), the FISCourt is also bound by law to maintain its files as "classified," and the government, not the FISCourt, is the classification authority. When it comes to foreign intelligence, the Courts have held themselves incompetent to make judgments and render opinions. Foreign intelligence is the sole province of the executive, and it is up to the executive to balance the disclosure of foreign intelligence against other interests.

In short, even if the government concedes that the FISCourt has jurisdiction to take the ACLU motion, the government can note that the FISCourt lacks the power to order (compel) a remedy, and is therefore out of line to order the government to make a substantive reply.

To my way of thinking, when a Court lacks the power to order a remedy, then a request for that remedy, no matter how well justified, is a request that falls outside that Court's jurisdiction. That doesn't mean an opinion won't issue. See Marbury v. Madison, for starters.

50 USC 1803(c)

The record of proceedings under this chapter, including applications made and orders granted, shall be maintained under security measures established by the Chief Justice in consultation with the Attorney General and the Director of National Intelligence.

I think this ACLU motion and the FISC public Order amount to something in the nature of a political publicity stunt. The FISC Order will, as a matter of fact, create a response from the administration. But as a matter of law, I see no way for the ACLU action to result in the compelled release of even one fully redacted page of an application for a surveillance order, let alone the Court's response to the application. If there is a release, it will be because the government chooses to make a release, not because the Court ordered the release.

There will be an appeal by the ACLU on the FISC's inevitable self-determination that it lacks jurisdiction, and that even if it had jurisdiction to entertain a motion to release it's orders, it lacks the power to compel the government to declassify even one period, comma or hyphen of the documents the ACLU seeks. The ACLU sought SCOTUS review of the FISCR's In re: Sealed Case, and it will do the same thing with whatever ruling and material flows from it's Motion to Unseal NSA Wiretapping Orders of 2007.

Congress set up and walled-off this FISC critter, and the ball will eventually wind up back in Congress's lap. What the people do with it there is anybody's guess. My guess is "a little bit of bitching, then more secrecy in government." There is no way in creation that a change in this law can be worked to a veto-proof majority. If the people want a secret sub-system of government, well, by golly, what the people want, they will get. The funny thing is, it being secret, they won't know what they got!

A reading list on the subject might focus on "state secrets." I've been looking for the Circuit Court opinion in United States v. Reynolds, 192 F.2d 987 (3rd Cir., 1951) ... so far to no avail. The 3rd Circuit was reversed by SCOTUS, on a 6-3 ruling. The dissent of Justices Black, Frankfurter and Jackson was brief, "dissent, substantially for the reasons set forth in the opinion of Judge Maris below. 192 F.2d 987."

• United States v. Reynolds, 345 U.S. 1 (1953);
  the (denied) 2003 petition for a Writ of Error Coram Nobis; and
  the (denied) 2005 petition to find fraud on the court. *

  (unrelated Reynolds v. US, 98 U.S. 145 (1878), on the subject of bigamy, is also fascinating. Read this and find the "bottom" of the Court's rationale -- Hint: it's conclusory.)

• Tenet v. Doe, 544 U.S. 1 (2005) (also at http://www.supremecourtus.gov/opinions/04pdf/03-1395.pdf)
• Chesney Brief on Hepting case (includes the complete text of a must-read law review article summarizing the incidents of invocation of "state secrets" privilege)
• el Masri v. US (4th Circuit upholds state secrets privilege - Case No. 06-1667p)
• el Masri dismissal 1:05-cv-1417 (E.D.Va. March 21, 2006)

The District Court ordered the Government to produce the documents in order that the court might determine whether they contained privileged matter. The Government declined, so the court entered an order, under Rule 37(b)(2)(i), that the facts on the issue of negligence would be taken as established in plaintiffs' favor. After a hearing to determine damages, final judgment was entered for the plaintiffs. The Court of Appeals affirmed, both as to the showing of good cause for production of the documents, and as to the ultimate disposition of the case as a consequence of the Government's refusal to produce the documents. ...

Before the District Court was able to consider the case on remand, the parties settled for 75% of the District Court's original verdict and the case was then dismissed with prejudice.

IOW, the government's failure to produce the documents about the flight was taken by the court to establish that the government was negligent regarding the fatal flight.

This result doesn't necessarily pertain, depending on the relationship between the secret, and the gravamen of the action. See Halkin v. Helms, 690 F.2d 977 (D.C. Cir. 1982), where a claim against the NSA could not stand once the NSA asserted "state secret," but a claim against the CIA (on an inference that the withheld evidence was against the CIA's position) could proceed.

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I need to research defunct FRE 509, and ponder the effect of state secrets on suits against AT&T for damages for violations of privacy. The rule being "as though the witness has died" leaves the evidence out of the case, unlike the result in Reynolds where the absence of evidence was taken against the party who asserted the privilege.

UNITED STATES

FOREIGN INTELLIGENCE SURVEILLANCE COURT

WASHINGTON, D.C.

Docket Number: MISC. 07-01

IN RE MOTION FOR RELEASE OF
COURT RECORDS

SCHEDULING ORDER

    The American Civil Liberties Union has filed a third party motion seeking the release of what it identifies as Court records. This is an unprecedented request that warrants further briefing.

    IT IS HEREBY ORDERED

    1) that the United States shall file a response to the Motion on or before August 31, 2007. The United States shall serve a copy of its response upon the movant. In the event that the United States determines it is necessary to include in its response material that it seeks to file under seal and ex parte, the United States shall file a motion to seal that material and a copy of an unredacted and redacted response shall accompany the motion to seal. If the United States includes material in its response which the United States is seeking to file under seal, it shall serve upon the movant a redacted copy of the response pending a ruling on the motion to seal. ¹

    ¹ Nothing in this Order shall be interpreted as modifying FISC Rule of Procedure 3 or any other applicable rule or security procedure of this Court.

    SO ORDERED, this 16th day of August, 2007.

COLLEEN KOLLAR-KOTELLY
Presiding Judge, United States
Foreign Intelligence Surveillance Court

posted by cboldt  # 8/18/2007 06:44:00 AM