Published by The Lawfare Institute
in Cooperation With
Published by The Lawfare Institute
My friend Steve Vladeck has graciously responded to my post on the Article III problems I see with appellate review in the Leahy bill. I wanted to return to the issue one more time to sharpen the discussion on my end and to clarify where we disagree. Here's a hypothetical to frame the question. Let's say the Leahy bill becomes law, and the FISC signs an order allowing a particular kind of surveillance for 90 days. After signing the order, the FISC certifies three questions to the Court of Review. The first question asks the Court of Review to interpret a key statutory term on which the FISC's order rests. The second question asks the Court of Review to ponder some hypothetical Fourth Amendment questions that the FISC is interested in that might or might not be relevant to the order. The third question asks the Court of Review to answer a matter completely unrelated to FISA: Are rights provided by the Third Amendment (the prohibition on quartering troops in peacetime) incorporated by the Fourteenth Amendment so they apply to the state governments? Let's assume that the Court of Review answers all three questions and then certifies all three questions to the Supreme Court. The Supreme Court is considering what to do with the certification from the Court of Review, and the Justices want to know if the three questions are justiciable under Article III. Are they? Steve's view, as I understand it, is that all three issues are indeed justiciable under Article III, at least if the Supreme Court rules within the 90-day period the FISC's order is in place (and perhaps longer), and as long as you accept that the nature of the application before the FISC is sufficiently like a traditional warrant to allow a federal court to rule on it. In Steve's view, the application by the United States creates a continuing case or controversy during the period of the order: The FISC essentially takes over the case for the duration of the order, so Article III is triggered and the court can issue any ruling or effectively delegate any ruling up to a higher court. The certified decision could be dicta, of course. But Steve's view is that if the Supreme Court wants to use the certification to hand down an opinion on hypothetical Fourth Amendment questions, or to decide the burning question of whether the Third Amendment applies to the states, then the original FISA application gives it the Article III authority to do that. I disagree with Steve in two primary ways. First, I'm skeptical that issuing a surveillance order gives judges continuing Article III power to rule on legal issues prompted by the order whenever the order is in place. As I see it, the theory behind ex parte court orders is that Congress (or, in constitutional cases, the Fourth Amendment) requires a judicial check before the surveillance occurs. Once the judicial review has occurred and the order is signed, legal questions that the judge implicitly or explicitly answered in order to sign the application have been answered. With the question answered, the judge's role in answering that question is done until there is some other matter before the Court. The judge can't just insert himself into the investigation and take on a managerial role while the investigation is ongoing. See Lo-Ji Sales v. New York, 442 U.S. 319 (1979). At least that's the way I think of how surveillance orders work, no doubt influenced by the example of Fourth Amendment warrants. Second, I'm skeptical that the existence of a case or controversy in the original application gives courts Article III power to address any issues it likes. "[T]he approach to take in applying Art. III is issue by issue," not case by case. U.S. Parole Commission v. Geraghty, 445 U.S. 388, 401 (1980). I would think that Article III requirements like redressibility and the imminence of any alleged injury-in-fact mean that a court can't just use a case or controversy over one issue to hand down opinions purporting to decide entirely separate questions. In my hypothetical, the Fourth Amendment issue was merely abstract and the Third Amendment issue had no conceivable relevance to whether the FISC should have entered the order. Maybe I'm missing something, but I wouldn't think that the existence of an Article III case or controversy over the application automatically confers Article III power over any other legal issue that the court can think up. Let me add a third point. In his post, Steve mentions the interesting question of Article III and the original FISC decision. I've pondered similar questions but from a somewhat different direction. Coming at the question from a Fourth Amendment perspective, I've occasionally wondered whether the review of a warrant application is an exercise of the judicial power at all. The Fourth Amendment does not require that judges are the ones who review applications and issue warrants, after all. See Shadwick v. City of Tampa, 407 U.S. 345, 353 (1972) (allowing municipal court clerk to take on role of issuing warrants). Given that, it's not obvious to me that having a federal judge review a warrant application makes that review an exercise of Article III power. I realize that Megahey suggests it is. But I'm not so sure that's right. And if it's not, that raises the question of what exactly judges are doing from an Article III perspective when they respond to surveillance order applications by issuing opinions purporting to decide legal questions prompted by the applications -- a question made all the more pressing if those questions can be certified up to the Court of Review and then on to the Supreme Court. Anyway, those are my thoughts. Steve writes in this area and I don't, so it's always possible I'm just missing something obvious.
Orin Kerr is a Professor at the University of California, Berkeley School of Law. He is a nationally recognized scholar of criminal procedure and computer crime law. Before becoming a law professor, Kerr was a trial attorney in the Computer Crime and Intellectual Property Section at the Department of Justice and a Special Assistant U.S. Attorney in the Eastern District of Virginia. He is a former law clerk for Justice Anthony M. Kennedy of the U.S. Supreme Court and Judge Leonard I. Garth of the U.S. Court of Appeals for the Third Circuit.
With FISA Section 702 soon set to expire, two Senate bills and a House report frame the reauthorization debate as it comes down to the wire.
The surveillance authority could expire unless significant reforms are made—it is time for the Biden administration to assist Congress in addressing Section 702’s most controversial aspect.
This week, Alan Rozenshtein, Quinta Jurecic, and Scott Anderson were joined by co-host emeritus Benjamin Wittes to talk through the week's YUGE national security news.