Taking Liberties: The War on Terror and the Erosion of American Democracy (21 page)

Mayfield v. United States Part II

Judge Aiken’s ruling invalidating this expansion of FISA was vacated, however, because the Court of Appeals concluded that the Mayfield family did not have standing to raise any constitutional claim about the search and seizure of their own property. How could that be? The Court of Appeals agreed with Judge Aiken that the family had indeed been injured and continued to suffer invasions of their privacy because of the FBI’s far-reaching surveillance. As part of the settlement agreement, the government had promised to return things the agents had taken from Mayfield’s home and office—like Mayfield’s physical files or records—but they had not promised to return or destroy “derivative evidence” they still had. According to the District Court, this “derivative” category included a great deal:

photocopies or photographs of documents from confidential client files in Mayfield’s law office, summaries and excerpts from the computer hard drives from the Mayfield law office and plaintiffs’ personal computers at home, analysis of plaintiffs’ personal bank records and bank records from Mayfield’s law office, analysis of client lists, websites visited, family financial activity, summaries of confidential conversations between husband and wife, parents and children, and other private activities of a family’s life within their home.
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This material, according to the government’s lawyers, had already been distributed among various government agencies and would remain rooted in their files and databanks. The relevant statutes do not prevent the government from retaining and disseminating this trove of information about an innocent man and his family.
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In the post–Patriot Act world, information is added to the government’s hoard but not subtracted. Everyone agreed that the Mayfields were suffering ongoing injury because of the government’s retention of all of this private information. But the appellate
court reluctantly found that the family nevertheless could not challenge the constitutionality of the procedures the government had used to gather all this evidence because the government would not agree, if the Mayfields won their case, to actually return or destroy all this “derivative” evidence. Because the court’s ruling in favor of the Mayfields would not make any tangible difference under the circumstances, the case was dismissed.

There was a technical legal reason behind this ruling. In the settlement agreement, the Mayfields had agreed to drop their request for an injunction (the kind of order a court uses to compel the government to take action) and to pursue only a claim for a declaratory judgment (a judicial declaration of illegality). Judge Aiken did not think this concession mattered, remarking: “[I]t is reasonable to assume that the Executive branch of the government will act lawfully and make all reasonable efforts to destroy the derivative materials when a final declaration of the unconstitutionality of the challenged provisions is issued.”
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But the government won its appeal by assuring the Court of Appeals that—unreasonable or not—it had no intention of correcting the mistake.
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The Obama Justice Department refused to voluntarily destroy or return the illegally obtained derivative evidence that the courts agreed could continue to harm the Mayfields, and the court was not in a position to force them to do so, and so the appellate court reversed Judge Aiken’s now toothless ruling and the case ended there. The Mayfields tried to get the Supreme Court’s attention, but the high Court declined to become involved. This was the second decision finding the Patriot Act “the/a significant” expansion of FISA to be unconstitutional that was then erased on appeal.

The Secret Court and the One-Sided Litigation

The Foreign Intelligence Surveillance Court itself had also found this Patriot Act expansion of FISA to violate the Fourth Amendment not long after the statute was enacted. The FISA court, as the figures above show, had never been much of a stumbling block for federal agents wanting to wield FISA powers. In March 2002, Attorney General Ashcroft asked the FISA court to adopt new procedures for implementing the Patriot Act expansion by extending the use of FISA to law enforcement instead of just intelligence officials. If gathering foreign intelligence no longer had to be “the” purpose of FISA searches, he reasoned, criminal investigators could also now use FISA as long as they could assert that gathering intelligence was “a significant” goal of their investigation. In May 2002, the FISA court wrote
an opinion rejecting the proposed procedures, finding that the Patriot Act amendment was unconstitutional. As a result, that court denied an unprecedented seventy-five surveillance applications.
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Although the FISA court usually operates in secret, the court decided to publish its important opinion in this case after Senator Patrick Leahy inquired about how the Patriot Act provision in question was being implemented.

Congress had created a special review court to hear appeals from the FISA court—the Foreign Intelligence Surveillance Court of Review—but that court had never convened because the government, the only party allowed to argue in the FISA court, had essentially never lost a case. If you win, you have nothing to appeal; if you aren’t a party, you aren’t allowed to appeal, even if you are somehow able to find out that you have lost. Since the appellate process was just as one-sided as the FISA court itself, only the government was invited to appear in front of this court. But since it was now public knowledge that the review court would be convening to consider this case, the ACLU and the National Association of Criminal Defense Lawyers asked permission to file an amicus (“friend of the court”) brief to defend the FISA court’s conclusion and argue that the Patriot Act provision in question was unconstitutional. That position otherwise would not be defended in the one-sided appeal. ACLU lawyer Ann Beeson bemusedly described the bizarre challenges of trying to figure out how to file a brief with a court that had no physical location, had never met, and had no procedures.
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After some successful detective work, the court’s “friends” were told that they would be permitted to file a brief—which the court might or might not read—with the clerk of the court, who worked for the Department of Justice. The review court met, as secretly as might be expected, in a secure room inside the Justice Department building. Members of Congress who wanted to attend were turned away.

Although Theodore Ruger’s study found that Chief Justice Rehnquist had tried for some bipartisanship in his appointments to the FISA court, Rehnquist’s selections for the Court of Review were all Nixon or Reagan appointees.
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The review court judges did read the amicus brief, complimenting its authors for their excellent presentation, but ruled that the Patriot Act amendment was constitutional—reversing the FISA court in the first appeal ever of one of its decisions and thus keeping the statistics overwhelmingly pro-government. Addressing the Fourth Amendment issue, the review court said that whether or not the statute was consistent with the Supreme Court’s “primary purpose” test was a question with “no definitive jurisprudential answer.”
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But, the court went on, even if the requirements
of the Patriot Act provision do not meet the minimum Fourth Amendment warrant standards, they “certainly come close.”
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And so, because national security matters were involved, the FISA expansion was declared to be reasonable and the Fourth Amendment was brushed aside. The litigation ended there. How could the Supreme Court review this ruling when there was only one party in the case—the government—and that party had won and so had no reason to appeal? Ann Beeson and her colleagues filed a motion with the Supreme Court asking to be allowed to intervene in the case for the purpose of petitioning for Supreme Court review. The Court refused the invitation.
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Judge Aiken, in the
Mayfield
case, is the only judge who subsequently agreed with the FISA court and disagreed with the review court’s ruling. The only other courts to have considered whether the Patriot Act went too far in expanding FISA have been courts in criminal cases where defendants were challenging the constitutionality of government surveillance in order to have incriminating evidence against them excluded from their trials. If the government prosecutes someone and wants to use evidence derived from FISA searches at the trial, the government is then and only then required to tell the “aggrieved person” about the origins of the evidence so that person can challenge its admissibility.
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However, if the “aggrieved person” (the criminal defendant) does challenge the admissibility of the results of the surveillance, the Attorney General may require the court to review the challenge in secret, so the defendant and defense counsel never get to see the surveillance applications or any of the other materials involved. The statute does allow the court to disclose materials to the defense attorney and to hold an adversary hearing if that is regarded as necessary to reach an accurate result but, evidently, courts never find such hearings to be necessary.
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Procedure matters.

In a criminal case, the result of a court finding the Patriot Act FISA amendment unconstitutional would be to exclude actual evidence of a criminal defendant’s guilt. And in a criminal case, defense attorneys are unable to see or respond to the relevant materials. Is it a coincidence that judges considering the Fourth Amendment issue in this context have all upheld the Patriot Act FISA amendment?
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The
Mayfield
court, in the context of considering the case of a demonstrably innocent man, in a public civil proceeding, was far more skeptical about the sufficiency of the FISA safeguards. While the results are lopsided, it should also be noted that the number of constitutional challenges to this Patriot Act amendment heard by courts is quite small. The fact that targets of FISA searches, unlike targets of regular
search warrants or eavesdropping orders, are never given notice that they have been subject to a search unless they are prosecuted means that the government can control when and if challenges will occur. By deciding not to prosecute someone, or not to use a particular piece of evidence, or by offering a defendant an attractive plea bargain, the government can prevent courts from considering motions to suppress FISA-derived evidence. But there seems to be little need for the government to avoid the courts, which have almost unanimously accepted the lowering of the FISA bar. Judge Aiken and, notably, the FISA court itself were unusual in their dedication to Fourth Amendment principles. And the combination of all the procedures surrounding the FISA court and review of its rulings truly stacks the deck.

A Job for Congress and the Courts

The section of the Patriot Act that broadened the reach of FISA by eliminating the “primary purpose” requirement was highly controversial and so it was scheduled to expire in 2005. Realizing that it was passing the Patriot Act hastily, barely over five weeks after 9/11 with virtually no debate or reflection, Congress provided that sixteen of its more controversial provisions would “sunset” after four years unless they were intentionally renewed. There was no controversy and no real discussion when Congress decided to make this particular expansion of FISA permanent in 2005– 2006, or during the 2009 reauthorization hearing process. Congress evidently does not hear much on this subject from disgruntled constituents. Who other than Brandon Mayfield and a few people convicted of crimes would know if they have been subject to “foreign intelligence” searches? The whole point of secret surveillance is that the targets do not know they are under surveillance. Judging from Brandon Mayfield’s case, there is no way to escape the reach of the FISA power, since avoiding all international travel and contacts is not enough to prevent being designated an “agent of a foreign power.” But how many people are willing to absorb the complexities of this body of law to understand how the Fourth Amendment is being diluted here and why that matters?

Very few judges today are willing to push back against the government’s ever increasing power to search and eavesdrop with less and less supervision. Since 9/11, the U.S. Supreme Court has decided about thirty-one cases raising Fourth Amendment claims. The Court has ruled against the Fourth Amendment in twenty-six of those cases.
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At the oral argument of the first search and seizure case the Court heard post-9/11, Justice Sandra
Day O’Connor remarked that “[w]e live in perhaps a more dangerous age today than we did when this event took place.”
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Judge Aiken was right to worry that expanding this dragnet threatens our Fourth Amendment rights by allowing too much discretionary executive authority: “In place of the Fourth Amendment, the people are expected to defer to the Executive Branch and its representation that it will authorize such surveillance only when appropriate.”
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There was a brief period during the 1960s when the Supreme Court seemed on the verge of holding all electronic eavesdropping unconstitutional because it is such a powerful tool and so difficult to contain.
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Justice William Brennan, one of the stalwarts of the Warren Court, said: “Electronic surveillance… makes the police omniscient; and police omniscience is one of the most effective tools of tyranny.”
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The Patriot Act’s expansion of FISA is not consistent with previous Supreme Court interpretations of the Fourth Amendment but, if the Court ever consents to hear a case on the subject, it is quite likely to shrink the Fourth Amendment one more size in order to validate this expanded authority. Congress is unlikely to roll back FISA to its pre-9/11 size. But even if the expanded power to acquire dossiers on Americans is with us to stay, Congress or the courts could at least fashion meaningful limits on the ability of the government to retain and distribute information so that other families won’t have the experience of the Mayfields.
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Do we need another Church Committee to make that happen? It might seem unlikely that we could muster such a constructive process in our highly partisan age, but it should not be impossible. One concern people across the political spectrum, liberals and libertarians alike, share with the framers of the Fourth Amendment is suspicion of allowing the government too much arbitrary power over our lives and our property. What is at issue here is not whether or not the government will be allowed to search for terrorists, but what procedures the government must follow in order to do so. As the authors of the Fourth Amendment clearly saw, procedure matters.