Legislative intent behind FISA?

[Thom Cmar]

Marty,

Thanks for your reply.  Here's what I was getting at,
however imperfectly, with my question:

Let's assume that all Congress thought it was doing in
enacting the probable cause standard of FISA was
clarifying/codifying the standard that it, Congress,
thought that the Fourth Amendment required of the
Executive.  By this reading, Congress saw itself as
engaging in its own interpretation of what the Fourth
Amendment meant and how it should be applied to these
kinds of cases.

Fast-forward to the present.  Senator Roberts and
others now argue -- based, in part, on cases decided
after FISA was enacted -- that FISA sets a more
restrictive standard than the Fourth Amendment
requires of the Executive in these kinds of cases.  In
other words, they argue that, although all Congress
saw itself as doing in enacting FISA was
clarifying/codifying its interpreation of the Fourth
Amendment, the congressional interpretation of the
Fourth Amendment was wrong.

If this argument is correct -- and I'm by no means
sure that it is, for several reasons -- then wouldn't
it be fair to say that the FISA probable cause
standard is the product of the legislature's relative
institutional incompetence (as compared to the
judiciary) at engaging in constitutional
interpretation?  It seems to me that a statement like
that could indeed influence the current debate.

Thom Cmar
thom at post.harvard.edu





--- Marty Lederman <marty.lederman at comcast.net> wrote:

> Not quite sure I understand your question, Thom, but
> here's one response:
> 
> In the mid-1970's, in the wake of the Keith case,
> there was widespread disagreement and confusion
> about the Fourth Amendment standards that would
> apply to various forms of domestic electronic
> surveillance undertaken for foreign intelligence
> purposes.  (Check out the detailed opinions in the
> DC Circuit Zweibon opinion.)  I'm not sure Congress
> understood that the Fourth Amendment only imposed a
> "reasonableness" requirement on these sorts of
> interceptions in 1978 -- not across the board,
> anyway.  Congress and the Executive both embraced
> FISA in large part because it was thought that it
> would eliminate the Fourth Amendment uncertainty, by
> establishing statutory standards and protections. 
> It was thought that the courts would defer to
> FISA-compliant searches because of judgments made
> by, and procedures imposed by, the national
> legislature.  And, sure enough, courts have done so.
>  Until a month ago, the attacks on FISA typically
> came from the other side, by those who thought its
> protections did not suffice to satisfy the Fourth
> Amendment.  But those challenges have generally been
> unsuccessful, if I understand correctly.
> 
> I'm not sure whether any of this bears on the
> current controversy.  All parties -- even DOJ and
> Sen. Roberts -- agree that searches must comply with
> the Fourth Amendment, even if there is a
> disagreement about what that Amendment requires
> (which probably depends on facts about the NSA
> program that we don't yet know).  
> 
> In addition, even Fourth-Amendment-compliant
> searches must satisfy FISA, unless FISA was
> overridden by the AUMF or is, as Sen. Roberts
> argues, unconstitutional.
> 
> Is that what you were looking for?
> 
> 
> 
> - Original Message ----- 
> From: "Thom Cmar" <t_h_o_m at yahoo.com>
> To: "Marty Lederman" <marty.lederman at comcast.net>;
> <CONLAWPROF at lists.ucla.edu>
> Sent: Friday, February 03, 2006 6:01 PM
> Subject: Legislative intent behind FISA?
> 
> 
> > Reading Marty's cogent synopsis of the Roberts
> letter
> > raised a question in my mind.  Perhaps someone
> with
> > knowledge of the relevant issues could enlighten
> me.
> > 
> > Roberts asserts that the FISA probable cause
> standard
> > is significantly more restrictive than the
> > "reasonableness" standard that courts currently
> apply
> > to Fourth Amendment challenges.  Let's assume, for
> the
> > sake of argument, that Roberts' assertion is
> correct
> > under current Fourth Amendment case law.  The
> Supreme
> > Court's application of the Fourth Amendment to
> > government searches and seizures, however, has
> become
> > significantly more permissive in the decades since
> > FISA was enacted.  My question, then, is this:
> > 
> > Can Congress, at the time it enacted FISA, be
> fairly
> > said to have understood the Fourth Amendment to
> > establish only a "reasonableness standard," and
> thus
> > to have further understood that FISA's probable
> cause
> > standard would be significantly more restrictive
> than
> > what was constitutionally required by the Fourth
> > Amendment?
> > 
> > To anyone kind enough to offer an answer, here's a
> > follow-up question:  should it make any
> difference,
> > either way, to the present controversy?
> > 
> > Thanks in advance for your thoughts.
> > 
> > Thom Cmar
> > thom at post.harvard.edu
> > 
> > 
> > 
> > 
> > 
> > 
> > 
> > --- Marty Lederman <marty.lederman at comcast.net>
> wrote:
> > 
> >>
> >
>
http://balkin.blogspot.com/2006/02/senator-roberts-declares-fisa.html
> >>  
> >> Senator Roberts Declares FISA Unconstitutional 
> >> 
> >> 
> >> Marty Lederman 
> >> 
> >> 
> >> Senator Pat Roberts of Nebraska, Chairman of the
> >> Senate Intelligence Committee, today issued a
> >> 19-page letter to the Senate Judiciary Committee
> in
> >> which he became (as far as I know) the first
> member
> >> of Congress to opine that the NSA's doemstic
> >> wiretapping program is lawful. Senator Roberts's
> >> argument is, almost in its entirety, that to the
> >> extent FISA purports to provide the "exclusive
> >> means" for the President to engage in electronic
> >> surveillance -- and Senator Roberts agrees that
> FISA
> >> does so (pp. 10-11) -- FISA is unconstitutional.
> >> 
> >> Notably, Senator Roberts does not really indulge
> >> DOJ's specious argument that Congress gave the
> >> President the authority to override FISA -- and
> that
> >> Congress impliedly repealed the "exclusive means"
> >> provision of FISA -- when it enacted the force
> >> authorization related to Al Qaeda on September
> 18,
> >> 2001. To be sure, in the Conclusion to his
> letter,
> >> Senator Roberts mentions en passant that he
> "do[es]
> >> not discount" the AUMF argument -- but he doesn't
> >> try to defend it in the slightest. Indeed, he
> does
> >> not even suggest that when he himself voted for
> the
> >> AUMF, he intended -- or had any inkling -- that
> FISA
> >> was being overriden and in part repealed. His
> >> argument, instead, is that the President's
> >> constitutional authorities "should be the
> beginning
> >> and end of our legislative inquiry into the
> >> 'legality' of this program. It is quite clear to
> me
> >> that Congress could not, through passage of FISA,
> >> extinguish the President's constitutional
> authority
> >> to conduct the terrorist surveillance program at
> >> issue." Senator Roberts concludes (p.13) that the
> >> Supreme Court would, "even after FISA, determine
> >> that Congress cannot define the 'exclusive means'
> >> for the conduct" of the President's electronic
> >> surveillance within the United States.
> >> 
> >> It's a rather remarkable and unusual event when
> the
> >> Chair of a congressional intelligence committee
> >> asserts that the landmark framework statute over
> >> which his committee has jurisdiction is
> >> unconstitutional. But that is what we've seen
> today.
> >> (One wonders why Senator Roberts did not, over
> the
> >> past five years, respond to the several enacted
> and
> >> proposed amendments to FISA, including in the
> >> PATRIOT Act, by saying they were unnecessary
> because
> >> FISA cannot limit the President's
> >> foreign-terrorism-related electronic
> surveillance.) 
> >> 
> >> One other important thing about the Roberts
> letter:
> >> He reveals what many of us had suspected --
> namely,
> >> that one reason the Administration is
> circumventing
> >> FISA is because it is engaged in interceptions
> that
> >> the FISA Court could not approve under the law as
> >> currently drafted: "FISA's burden of proof --
> >> probable cause that [the targeted] individual is
> an
> >> agent of a foreign power -- is higher than the
> >> 'reasonableness' the Fourth Amendment requires
> and
> >> does not enable surveillance of all the
> assistants
> >> and collaborators of our enemies that the
> President
> >> should target for intelligence collection."
> >> 
> >> Now, it should be understood what Roberts is
> saying
> >> here: FISA does not regulate at all the
> surveillance
> >> of "all the assistants and collaborators of our
> >> enemies" insofar as the interceptions occur
> overseas
> >> -- even if the communications are with persons in
> >> the U.S., NSA may freely intercept those calls
> (or
> >> that's my understanding, anyway). And even if the
> >> interception is made here in the U.S., FISA
> allows
> >> for a judicial order upon a showing of probable
> >> cause that the person in the United States whose
> >> phone or computer is targeted is "an assistant or
> >> collaborator of our enemies." Therefore, what's
> at
> >> issue here is (i) the targeting of U.S. persons
> who
> >> are not suspected of being Al Qaeda assistants or
> >> collaborators, but who are calling persons
> overseas
> >> who are suspected of being such; and/or (ii) the
> >> targeting of U.S. persons who the NSA suspects of
> >> being "assistants or collaborators," but where
> there
> >> is not probable cause to believe it.
> >> 
> >> (By the way, Roberts confirms that "assistant or
> >> collarborator" is defined very broadly, to
> include
> >> not only members of Al Qaeda or those who assist
> in
> >> Al Qaeda's terrorist operations, but also persons
> >> "affiliated with" Al Qaeda and persons who are
> >> members of "organizations affiliated with Al
> Qaeda."
> >> Thus, some of the intercepted calls might not
> >> involve any party who is in league with Al Qaeda
> or
> >> who is otherwise even suspected of having had
> >> anything to do with the attacks of September 11,
> >> 2001.)
> >> 
> >> Posted 4:16 PM by Marty Lederman [link] (0)
> comments
> > 
> > __________________________________________________
> > Do You Yahoo!?
> > Tired of spam?  Yahoo! Mail has the best spam
> protection around 
> > http://mail.yahoo.com 
> >


__________________________________________________
Do You Yahoo!?
Tired of spam?  Yahoo! Mail has the best spam protection around 
http://mail.yahoo.com