Former FISA Appeals Judge Calls Congress Villain in Warrantless Taps

Edward Leavy of the 9th U.S. Circuit Court of Appeals in San Francisco until last year defended the one-sided and closed proceedings that the 1978 Foreign Intelligence Surveillance Act set up in the surveillance courts. He said the ACLU and allies had taken a position contrary to civil liberties in defending barriers between federal officials in intelligence and those in law enforcement.

“Congress was probably the weakest of the three” branches “in not maintaining a closer look at what was going on,” Leavy told law students at a meeting this week of the Federalist Society at the University of California, Berkeley. “They have that power. And it is sad to me that this has taken on a partisan flavor … They have a lot of wisdom after the fact.” Leavy stepped out of the shadows of the secret Foreign Intelligence Surveillance Court of Review to discuss his experience there starting two weeks after 9/11. He was the presiding judge the last three years of his term of almost seven on the court.

“Ostensibly, it’s a very secret court,” Leavy said. But it has heard only two cases and “has published both” opinions, after redaction, he said. He acknowledged that he “had never heard of the court until I was asked to accept an appointment to it.” Leavy also said he “had no experience with this law.”

The three-judge court had never met when Leavy, who remained on the 9th Circuit throughout, was appointed by Chief U.S. Justice William Rehnquist to hear government appeals of judges’ denials of FISA tap orders. Leavy was a Reagan appointee to the federal district and appeals bench and former Oregon prosecutor and has been a state or federal judge more than 50 years.

The ruling that Leavy took part in, an unsigned 2002 opinion on In re: Sealed Case No. 02-001, threw out a trial court condition on a surveillance-order grant, banning consultations between foreign-intelligence officials and Justice Department prosecutors. The importance of the case was shown by Solicitor General Theodore Olson’s making the government’s argument, he said. Leavy choked up when he recounted that Olson’s wife, Barbara, had been on the jet that was crashed into the Pentagon on Sept. 11. “It has an emotional overlay even for me,” he said, though he didn’t know her.

The decision has “been roundly criticized,” Leavy said. “A lot of people who speak on the subject … have very little knowledge.” But he also said this opinion, like others, should “stand or fall on its own weight.”

The trial-court order had carved into law a Justice Department rule, imposed during the Clinton administration, Leavy said. It prohibited foreign-intelligence investigators from conferring with Criminal Division lawyers, for fear of triggering the higher warrant requirements of criminal cases, he said. But the Clinton administration had changed its position by 2000, and it appealed the order, he said. “You can see the good intentions” behind the restriction, in efforts to obey the law, Leavy said. But the DoJ and the GAO criticized it after investigations, he added.

The restriction created “a major wall in preventing one portion of the government from knowing what another portion might know about the threat of an attack,” Leavy said. In the appeal ruling, “we held that this wall of separation was totally unnecessary, either constitutionally” or under statute, he said.

“You've got to have sympathy” with the Justice Department in its “dual role” in national security, Leavy said. “They want to obey the law” and “at the same time they don’t want an attack to occur on this country,” he said. “That’s a tough position to be in.” If a foreign- intelligence investigator learns in advance of plans for a crime like the 9/11 attacks, Leavy asked rhetorically, “What do you want them to do with that?” Criminal investigation and foreign intelligence “are not separate worlds,” he said. “At some point they merge.”

The appeals court accepted amicus briefs from the ACLU and the National Association of Criminal Defense Lawyers, Leavy said. But the filers didn’t have access to the facts or the chance to argue to the judges orally, he said. Supporting the ACLU’s brief were the Center for Democracy & Technology, Center for National Security Studies, Electronic Frontier Foundation and Electronic Privacy Information Center.

“The irony is that the ACLU and the association of defense lawyers were on the wrong side of the case,” Leavy said. He dismissed part of a 1980, 4th Circuit case relied on by critics of the government as “a throwaway line,” dictum in the earlier opinion. The ACLU didn’t respond right away to a request Thursday for comment.

Congress showed great foresight in creating FISA, Leavy said. “I was amazed that they put this law together in 1978 and it seemed so appropriate in the year 2000 or 2001,” he said. One way was in including international terrorism groups among six kinds of foreign powers that the law applied special procedures to, Leavy said. The law also imposed safeguards, in certifications required -- from the attorney general and another Senate-confirmed presidential appointee - - of the legitimacy of each request for a FISA order, he said. “You have all three branches of the government committed to doing it right.”

FISA’s secrecy is “the trade-off for the security,” Leavy said. “If somebody has an alternative, there’s plenty of room for it,” he said. “But we've made the trade.” Leavy said there are indications the Obama administration may agree with the view expressed in 1978 by then-Rep. Al Gore, D- Tenn., in congressional debate on FISA that foreign- intelligence surveillance should be handled by law enforcement.

Foreign-intelligence warrants can’t be argued in the open without alerting the targets, Leavy said. “If you share the information as a lead-up to a wiretap, the well is going to be dry.” Besides, “we do quite a bit of law enforcement in private,” including grand-jury proceedings, and indictments sealed before arrests are made, he said. “I have issued warrant after warrant” for conventional criminal searches “from the privacy of my residence.” Ordinary warrant requests aren’t subject to adversary proceedings unless someone is charged, he said.

Still, Leavy said: “I'm very discouraged about the state of privacy in this country. I'm very concerned about my privacy. The government knows every pill I take. Literally … I don’t even like to carry a telephone. The government pays for one for me. But I like to leave it.”