FISC and TECA

[Edward Hartnett]

As Kim notes, 50 USC 1806(h) does not refer to decisions by the FISC or
FISC of Review, but instead makes decisions to suppress (or not suppress)
evidence by the _district courts_ under 1806(g)  "binding upon all courts
of the United States and the several States except a United States court of
appeals and the Supreme Court."  Federal district courts are specifically
empowered to suppress evidence under 1806(g), not only where the evidence
is sought to be used before the district court itself, but also if the
evidence is sought to be used before a state court (or other legal
proceeding) in that district. 50 USC 1806(d).  Thus the point of making the
district court's ruling binding on other courts appears to be to make sure
that its decision to suppress (or not suppress) evidence is honored in a
state court (or other proceeding).  (In effect, 1806 stands as a
legislative exception to the Younger doctrine, permitting a federal court
to order the suppression (or non-suppression) of evidence in a state
criminal trial.)

On further reflection, it appears that 1806(g) may answer any reliance on
the good faith exception to the 4th amendment's exclusionary rule.  That
statute directs that the district court, if it "determines that the
surveillance was not lawfully authorized or conducted," "shall . . .
suppress the evidence."  Suppression, then, is not a function of the 4th
amendment's exclusionary rule (subject to its good faith exception), but
instead is a statutory rule of evidence that does not appear to have any
good faith exception. Cf. Rios v. US, 495 US 257 (1990) (statutory remedy
of suppression under title III).

Nor has a quick look revealed any evidence that courts deciding whether to
suppress defer to the FISC.  See, e.g., US v. Belfield, 692 F.2d 141 (D.C.
Cir. 1982) (noting that "[a]ll four judges (not counting the original
USFISC judge) who have examined the Exhibit agree upon the legality of the
surveillance"); US v. Ott, 637 F.Supp. 62 (ED Cal. 1986).

As for Mark's concern:  I do not have any historical evidence of appellate
review of the refusal of judges to issue search warrants.  (Does anyone
have evidence either way on this point?)  But if successive applications
for a search warrant to Judges A, B, C, D, E, F, and G present "cases"
within the meaning of Article III, on what principle could one say that an
application for a search warrant to Judge A, followed by an application to
Judges H, I, and J, sitting together, does not?  Is the point that it would
be acceptable to allow Judges H, I, and J to issue the warrant as a
successive original application, but not to "review" the refusal by Judge
A?

Or is the point that the only reason to tolerate treating ex parte
proceedings as within article III is historical pratice, and that anything
not tightly within that historical practice should be treated as outside
article III?  If so, I would ask where the presumptive principle that ex
parte proceedings are outside article III comes from.  Does that mean that
applications for TRO's are outside article III?   Don't the real concerns
about ex parte proceedings -- whether traditional search warrants, title
III warrants, FISA warrants, and TRO's  -- stem from the due process
clause, not article III?

Ed Hartnett
Seton Hall






                      Kim Lane Scheppele
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                      11/25/02 10:34 PM
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I don't read 50 USC 1806 (h) that way -- it refers back to 1806(g), and the
courts mentioned there are district courts rather than the FISC or FISCR.
As far as I understand it, FISC and FISCR are limited to granting or
denying
warrant requests, and they have no general control over whether regular
Article III courts admit or suppress evidence from FISA surveillances in
criminal cases.   (This section was amended by the PATRIOT Act so perhaps
something slipped by that I didn't notice.)

I agree completely with Bill Funk's legislative history -- it's refreshing
to recall that FISA was one of the reform laws to emerge from the Church
Committee report.   But the war on drugs, and now the war on terrorism,
have
made FISA much less about bringing some legal discipline to domestically
based espionage and much more about finding ways to circumvent the
relatively rigorous requirements of Title III searches.    It was during
the
1990s that the use of FISA skyrocketed so that by the end of the decade
there were more FISA warrants granted by the FISC than there were TItle III
warrants granted in all of the federal courts combined.  And that was
BEFORE
9/11.

--kim


Kim Lane Scheppele
Professor of Law and Sociology
University of Pennsylvania
3400 Chestnut Street, Philadelphia PA 19104
Phone:  215-898-7674   Fax 215-573-2025
Email:  kimlane at law.upenn.edu
----- Original Message -----
From: "William Funk" <funk at LCLARK.EDU>
To: <CONLAWPROF at listserv.ucla.edu>
Sent: Monday, November 25, 2002 9:22 PM
Subject: Re: FISC and TECA


> Kim Lane Scheppele wrote:
>
> >One question to Eddie on Article III court status:  What would your
guess
be
> >as to the likely influence of the FISCourt of Review's opinion on other
> >courts?
> >
> The first question is how either the FISC or the FISCR decision could
> ever be considered by another court.  FISA goes to great lengths to
> provide that attempts to suppress information or otherwise challenge
> surveillances under FISA be considered only by the FISC or FISCR, by
> providing for removal of those questions to those courts, the decisions
> by which are "binding upon all courts of the United States and the
> several States except the [FISCR] and the Supreme Court."  See 50 USC
> 1806 (h).
>
> Bill Funk