I agree the intrusion is not as great, but I still think the court is wrong. If the President is within his constitutional and statutory authority in ordring the NSA surveillance, and he is, then the fruits of that surveillance are lawfully obtained and there is no valid reason to reject it as the foundation for a FISA warrant application. The only justification wold be the wall, which, as aforesaid, has been abolished. The US persons in question receive all the process that is due via the mechanism of the FISA warrant procedures. It's just too bad for them they got caught up in a foreign intelligence surveillance operation. It sucks to be a terrorist. Not saying you could prove a criminal case with the surveillance take, only that it ought to be admissible in the FISA warrant application process.
The FISA Court has demonstrated a repeated tendency to be too big for its britches. Reimposing the wall by judicial fiat after it was abolished by the Patriot Act is, in my view, reckless, obdurate and scandalous in the extreme.
The court cases preceding FISA provide some substance to the inquiry of what is within the administration's constitutional and statutory authority. Both the Keith and Truong cases REJECTED some of the evidence obtained, while proclaiming the executive's right to unfettered surveillance for foreign intelligence purposes.
A refusal on the part of a FISA court to grant a warrant does not mean, as you note, that the surveillance is unreasonable. The surveillance can be tested as though FISA did not exist, on a case by case basis, arguing that the FISA court rejection was either 1) incorrect and a legal error, or 2) not to be construed as a conclusion of "unreasonable." All it could mean would be thatteh FISA court concluded the request did not fit within the statutory mandate.
The administration can file a suit for mandamus - shades of Marbury v. Madison!
Not saying you could prove a criminal case with the surveillance take, only that it ought to be admissible in the FISA warrant application process.
The purpose of FISA is to provide an orderly intersection of foreign intelligence and criminal spheres. The intersection is where all of the interesting debate lies. "The wall," or something resembling it, remains. What is changing is it's height, thickness and transparency. "Primary purpose" changing to "significant purpose" is the extent of demolition that has been accomplished by "In re: Sealed Case."
The FISA Court has demonstrated a repeated tendency to be too big for its britches. Reimposing the wall by judicial fiat after it was abolished by the Patriot Act is, in my view, reckless, obdurate and scandalous in the extreme.
I agree with all that.
The NSA surveillance can be lawful, yet outside of FISA's scope for granting warrants.
I had another thought, using an example that probed exactly the question of whether a certain surveillance activity is within the warrant granting authority established by FISA.
When Clinton & Co. wanted to make a physical entry into Aldrich Ames' residence, they first sought a warrant from the FISA Court. They argued quite vigorously that "physical entry" was a form of surveillance that Congress intended be part of the FISA law. The FISA Court disagreed and did not issue the warrant. The physical entry was thereafter made without a warrant.
Whether or not that entry was "reasonable" was not tested by a Court. Ames and his wife entered a plea bargain. However, his defense counsel asserted that they planned to attack all evidence found as a result of the physical entry. This planned legal attack on the evidence in the Ames case was part of the impetus for Congress to expand Chapter 36 of Title 50, FISA, to include a subchapter on physical entries.
Long story short, I wouldn't be critical of a FISA Court decision that -is- correct (I think denial of a warrant based on NSA surveillance may well be the correct decision - the analysis being out of the FISA Court's jurisdiction), just because they have made others that are incorrect (e.g., assert "primary purpose" over express Congressional orders to the contrary). Their authority is limited by the statutory language in FISA.
The only justification wold be the wall, which, as aforesaid, has been abolished.
"The wall" is still there, in some yet to be determined form. It can appear in a Court's opinion in a criminal prosecution at any time. It's form as set out in DoJ guidelines (e.g., Gorelick memo) and FISA Court interpretation has been demolished. But it's pure origination is the administration itself. "Primary purpose" is an artifact of earlier SCOTUS decisions, such as Truong, and earlier, Kieth. And THAT "primary purpose" language seems to have originated with the argument made by the entity conducting the searching! "Hey, our primary purpose is foreign intelligence gathering, and that cannot be regulated by Congress or the Courts."
The FISA Court of Review, in In re: Sealed Case, 310 F.3d 717 (FISA Ct. of Review 2002), didn't get to the question of whether granting a warrant was proper. It rejected the lower (FISA) Court's imposition of certain conditions in its order authorizing surveillance. The conditions in the order were very much an embodiment of "the wall," directing procedures to be used by the DoJ. The conditions resulted from the FISA court employing the "primary purpose" standard, and the FISA Court used the "minimization procedures" language as their statutory authority to impose the conditions.MR. JUSTICE DOUGLAS, concurring
This is an important phase in the campaign of the police and intelligence agencies to obtain exemptions from the Warrant Clause of the Fourth Amendment. For, due to the clandestine nature of electronic eaves-dropping, the need is acute for placing on the Government [407 U.S. 297, 325] the heavy burden to show that "exigencies of the situation [make its] course imperative." 1 Other abuses, such as the search incident to arrest, have been partly deterred by the threat of damage actions against offending officers, 2 the risk of adverse publicity, or the possibility of reform through the political process. These latter safeguards, however, are ineffective against lawless wiretapping and "bugging" of which their victims are totally unaware. Moreover, even the risk of exclusion of tainted evidence would here appear to be of negligible deterrent value inasmuch as the United States frankly concedes that the primary purpose of these searches is to fortify its intelligence collage rather than to accumulate evidence to support indictments and convictions. If the Warrant Clause were held inapplicable here, then the federal intelligence machine would literally enjoy unchecked discretion.
UNITED STATES v. UNITED STATES DISTRICT COURT [Keith], 407 U.S. 297 (1972)