FISC and TECA

[Edward Hartnett]

I think that Kim is right in her response to Mark.  That is, I think that
the traditional rule was (and is) that if one judge turns down a warrant
application, nothing stops the government from asking another judge to
issue the warrant.  I have not, however, in a quick look, found a clear
statement of this as a traditional rule.  See U.S. v. Pace, 898 F.2d 1218
(7th Cir. 1990) (asserting the principle, but without claiming it as
traditional, and noting a district court case going the other way).

FISA explicitly provides that "no judge designated under this subsection
shall hear the same application for electronic surveillance under this
chapter which has been denied previously by another judge designated under
this subsection," 50 USC 1803(a).  Thus the provision for appeal that
immediately follows in 1803(b) can be viewed as a substitute for what would
otherwise seem to have been the permissible step of judge-shopping until
one found a FISA judge to issue the warrant. Cf. S. Ct. R. 22 (permitting,
but discouraging, parties whose applications are denied by an individual
justice to "renew it to any other Justice").

As for Kim's question:  I tend to think that the law of vertical precedent
follows the hierarchy of review and therefore that the decision of the FISC
of Review would not be binding precedent on any court other than the FISC.
It would seem, then,  that district courts and courts of appeals could
reject its reasoning, although, as Kim notes, there is a possibility that
they would tend to defer to the specialized court in a specialized area.
(Do we have any track record of deference by the regional courts of appeals
to the Federal Circuit?)   Apart from such possible deference, moreover,
any court inclined to disagree with the FISC of Review would also have to
deal with the good faith exception to the exclusionary rule -- or at least
wrestle with the question of whether the good faith exception applies to
FISC warrants as well as 4th amendment warrants.  Right?


Ed Hartnett
Seton Hall








                      Mark Tushnet
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                      TOWN.EDU>                  cc:
                      Sent by: Discussion        Subject:  Re: FISC and TECA
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                      11/25/02 02:22 PM
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Something's been nagging me about the FISC appeals "court."  Clearly the
fact that applications for search warrants made to district judges are
ex parte doesn't mean that they (either the judges or the warrant
applications) are outside Article III.  To the extent that I can figure
out why, it is that an ex parte warrant process is a "a case or
controversy" in a form familiar to the Westminster courts (or whatever
the precise phrase is).  That is, the justification is largely
(exclusively?) historical.  But, as far as I'm aware (I could be
corrected on this, which would resolve my puzzlement), there wasn't a
historically established practice of appeals from denials of search
warrants.  So, conceding that an application for a warrant presents a
"case or controversy" because of past practice, is it still the case
that an appeal from a search warrant denial (ex parte, of course) is a
"case or controversy"?  And, if so, what's the theory?

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