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A Franks motion is premised on material misrepresentations and omissions in the warrant affidavit; but without access to that affidavit, a defendant cannot identify such misrepresentations or omissions, let alone establish that they were intentionally or recklessly made. As a practical matter, the secrecy shrouding the FISA process renders it impossible for a defendant to meaningfully obtain relief under Franks absent a patent inconsistency in the FISA application itself or a sua sponte disclosure by the government that the FISA application contained a material misstatement or omission. To date, courts have either overlooked the problem or acknowledged it without being able to identify a satisfactory work-around.Enter, Judge Coleman. Her novel approach to this problem was to provide Daoud’s counsel—who possess the requisite security clearances—with access to all of the materials on which the government’s application for a FISA warrant was based, and to thereby seek to place Daoud on the same footing in the Franks context as an ordinary criminal defendant seeking to attack the validity of an ordinary search warrant. Only with such access, Judge Coleman reasoned, could Daoud’s counsel help her properly resolve the Franks motion 2. Judge Posner’s Frustrated (and Frustrating) Reaction The problem with such a “solution,” as Judge Posner was quick to point out in his 13-page opinion for the majority in Daoud, is that it contravenes FISA’s plain language. Under 50 U.S.C. § 1806(f), a district court considering a motion to suppress FISA-based evidence
shall, notwithstanding any other law, . . . review in camera and ex parte the application, order, and such other materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted. In making this determination, the court may disclose to the aggrieved person, under appropriate security procedures and protective orders, portions of the application, order, or other materials relating to the surveillance only where such disclosure is necessary to make an accurate determination of the legality of the surveillance.In other words, as Judge Posner explained, Judge Coleman skipped a step by mandating access for Daoud’s counsel to the classified materials supporting the FISA warrant without first specifically finding that such access was necessary. [Perhaps Judge Coleman might have argued that § 1806(f) is focused on disclosures to the defendant, and doesn’t control disclosures to his security-cleared lawyer (especially insofar as constitutional concerns might otherwise arise), but that argument appears to not have been pursued.] The problem, from Judge Coleman’s perspective, is that it may not always be possible for a district judge to determine whether disclosure is necessary (as opposed to whether it “may be necessary”) without the benefit of adversarial presentation. That is to say, § 1806(f) conditions the disclosure of classified FISA materials to a defendant (or, at least, his security-cleared counsel) upon a finding by the district judge that may, in some cases, only be possible with defense counsel’s participation. This is why, in her order mandating disclosure, Judge Coleman devoted so much of her energy to the importance of adversarial proceedings, especially in criminal cases—not because all proceedings in U.S. courts are adversarial (they’re not), but because, in this context specifically, adverse-ness makes it easier for a judge to have faith that she is comporting with her statutory and constitutional obligations. But rather than accept—or at least sympathize with—Judge Coleman’s efforts to square a circle, Judge Posner derided them by suggesting that the government has a right to keep these materials secret, repeatedly criticizing calls (one is left to wonder from where) for “openness.” “Not only is federal judicial procedure not always adversarial,” Posner wrote; “it is not always fully public.” This is true, but entirely beside the point; Judge Coleman wasn’t seeking to open the proceedings; she was seeking to provide security-cleared defense counsel (who, just like everyone else, are subject to the Espionage Act) with access to classified information. Apparently, for Judge Posner, this is a distinction without a difference, for requiring such access necessarily brings too great a risk of public disclosure: “Though it is certainly highly unlikely that Daoud’s lawyers would, Snowden-like, publicize classified information in violation of federal law, they might in their zeal to defend their client, to whom they owe a duty of candid communication, or misremembering what is classified and what not, inadvertently say things that would provide clues to classified material.” This assertion is, of course, entirely speculative (and unsupported with any case examples). Nor is there any real argument that the unsubstantiated fear of such a leak is a proper basis for denying cleared counsel access to material. Indeed, the fact that these lawyers have received these clearances reflects the Executive Branch’s determination that they can be trusted with classified information. Judge Posner apparently thinks he knows better, but offers no support of that belief. And in fact, there are myriad examples—including litigation before the FISA Court, the Guantánamo habeas litigation, and elsewhere—that are decisively to the contrary. But far more troubling than these (gratuitous) rhetorical flourishes is the last part of Judge Posner’s opinion, which doesn’t just conclude that disclosure to Daoud’s defense counsel in this case is unnecessary under § 1806(f)—the step the Court of Appeals criticized Judge Coleman for skipping—but then goes on to resolve Daoud’s Franks motion on the merits. Thus, the majority concluded that “our study of the materials convinces us that the investigation did not violate FISA,” even though the district court hadn’t even gotten that far. In other words, in a case in which the whole question is how judges should decide whether they need adversarial participation in order to properly resolve a FISA-based Franks motion, Judge Posner’s answer is, in effect, “don’t worry about it; we judges can handle this without any help.” With all due respect to one of the brightest and most gifted appellate judges in the country, how does he (or his colleagues) know that? Indeed, I thought one of the most significant revelations from the FISA-related disclosures of the past year is that, in fact, judges won’t always get these issues right without the benefit of adversarial presentation and argument. Of course, that’s not to say that the Seventh Circuit got this case wrong. So long as (1) § 1806(f) also circumscribes disclosures to defense counsel; and (2) is constitutional as so applied, the courts’ hands may well be tied in this context. But Judge Posner’s rhetoric suggests that, like too many of his judicial colleagues, he’s missed the deeper lessons of the past year—and continues to be far too self-assured that judges can fully and fairly resolve the factual and legal issues raised in FISA cases without the benefit of adversarial presentation. Whether or not that belief holds true in Daoud’s case (we’ll never know), it simply can no longer be defended as a categorical proposition. 3. Judge Rovner’s Concurrence Instead, the far more nuanced approach to this problem can be found in Judge Rovner’s concurrence, which, from the top, seeks to grapple with “the difficulty of reconciling Franks . . . with a proceeding in which the defense has no access to the FISA application that resulted in court-authorized surveillance of the defendant.” As she notes,
I believe it is time to recognize that Franks cannot operate in the FISA context as it does in the ordinary criminal case. To pretend otherwise does a disservice to the defendant and to the integrity of the judiciary. We must recognize both that the defendant cannot make a viable Franks motion without access to the FISA application, and that the court, which does have access to the application, cannot, for the most part, independently evaluate the accuracy of that application on its own without the defendant’s knowledge of the underlying facts. Yet, Franks serves as an indispensable check on potential abuses of the warrant process, and means must be found to keep Franks from becoming a dead letter in the FISA context. The responsibility for identifying a solution lies with all three branches of government, but as the branch charged with applying Franks, the duty falls to the judiciary to acknowledge the problem, make such accommodations as it can, and call upon the other branches to make reforms that are beyond our power to implement.This passage—and the entire concurrence—is one of the most candid and concise discussions of this issue that I’ve seen. Indeed, as the above discussion should make clear, I think Judge Rovner is absolutely right: There’s a huge tension between § 1806(f) and Franks (and the underlying Fourth Amendment values Franks aims to protect). Judge Posner dismisses this tension out of hand, but Judge Rovner meticulously and painstakingly documents it in Parts 1–5 of her opinion (which are worth reading in their entirety). As she concludes, “courts cannot continue to assume that defendants are capable of carrying the burden that Franks imposes when they lack access to the warrant application that is the starting point for any Franks inquiry. Courts must do what they can to compensate for a defendant’s ignorance as to what the FISA application contains. Otherwise, Franks will persist in name only in the FISA setting.” Even then, as she recognizes, such efforts by district judges likely won’t suffice. The million-dollar question then becomes how this tension can be better resolved. One possibility, as she notes in the text surrounding footnote 3, is to seek to vindicate the values of Franks before the FISA Court itself—through the participation of a “special advocate” who could push back against the government’s evidence at the warrant-issuance stage, as opposed to leaving it to a collateral attack by a criminal defendant in a subsequent criminal proceeding. Although I am a strong supporter of a FISA “special advocate” (see, e.g., the authorities Judge Rovner cites in footnote 3), I’m not sure I agree with its invocation here. As I’ve explained elsewhere, a “special advocate” is likely least necessary, and, more significantly, most burdensome, in “classic” FISA cases like Daoud—where the FISA order is based upon an individualized showing of probable cause. Not only will few of those cases produce legal opinions that affect anyone other than the target (unlike, say, the opinions upholding the telephone metadata or PRISM programs), but it’s the rare FISA warrant that produces evidence that’s subsequently introduced in a criminal proceeding. Indeed, my own view is that a Franks hearing is the right way forward—but with legislative reform of § 1806(f) to allow for broader access to the government’s supporting materials by defense counsel (e.g., by requiring access to information that “may be necessary” to resolution of the Franks motion, as opposed to information that is necessary). But regardless of the best way forward, all of us (including Judge Posner) should take careful heed of Judge Rovner’s concerns—and of the need for some kind of legislative solution to the increasingly illusory availability of Franks in FISA cases. As Judge Rovner concluded,
Thirty-six years after the enactment of FISA, it is well past time to recognize that it is virtually impossible for a FISA defendant to make the showing that Franks requires in order to convene an evidentiary hearing, and that a court cannot conduct more than a limited Franks review on its own. Possibly there is no realistic means of reconciling Franks with the FISA process. But all three branches of government have an obligation to explore that question thoroughly before we rest with that conclusion.