‘Political Branches,’ FISA Court Proper for Wiretapping Review, DOJ Tells 9th Circuit

The Jewel plaintiffs suffered “concrete injuries” to their statutory and constitutional rights, EFF lawyer Kevin Bankston told the judges. U.S. District Judge Vaughn Walker, since retired, inappropriately ruled that every customer of AT&T allegedly was wiretapped and thus the plaintiffs didn’t suffer anything unique, an argument no party had raised, Bankston said: If that’s the case, multiple people whose homes had been searched without a warrant would lack standing as well. “We're still stuck at the starting gate” after three years of argument and can’t argue the merits of whether Section 1806(f) of FISA -- providing for a judge’s in camera and ex parte review of a government wiretapping order to verify its legality -- is superseded by the state-secrets privilege, the government’s position, he said.

Judge Margaret McKeown asked why not wait until the earlier Al-Haramain case, in which Walker ruled against the government and considered 1806(f), reaches the 9th Circuit to decide the law’s relevance. The government declined to use 1806(f) to justify its alleged wiretapping in Al-Haramain. Judge Harry Pregerson, hearing the case by videoconference from Los Angeles, suggested that if the panel rules the Jewel plaintiffs have standing, it send back the question of state-secrets privilege for the district court to consider. Bankston said the government had put “squarely at issue” whether state secrets supersede 1806(f), so the panel should decide it. The 1806(f) question may not even come up on appeal in Al-Haramain because the plaintiffs used non-classified evidence to show their standing, said lawyer Ilann Maazel, representing plaintiffs in the related Shubert case: The issue is “ripe for decision” by the panel.

Judges grilled Justice Department lawyer Thomas Byron on his contention that the question of lawful wiretapping falls under the “oversight of political branches.” Judge Michael Hawkins asked: “If these plaintiffs don’t have standing, who would?” Walker ruled that the Jewel claims involved nationwide policies on alleged “dragnet surveillance,” which Byron said means the courts should not “go beyond the role that is set for them.” McKeown said Byron was arguing that national security concerns were “infused” into the doctrine of standing: “I don’t know what the precedent would be for such a position.”

The government isn’t asking for a “sweeping doctrinal rule,” Byron said, but simply a case-by-case review that considers “unique circumstances” in alleged surveillance. “What role would the judiciary have if your position is adopted? We just get out of the way?” Pregerson said. Courts “need not go to the full extent of their Article 3 powers in every instance,” Byron said: “It may be appropriate to step aside” in a “narrow category of cases” and let the other branches oversee foreign surveillance. “But the judiciary plays a role in our system,” Pregerson said: “You're asking us to abdicate that role."

Congress has already provided a statutory basis for wiretapping orders to be reviewed in court, and no court has found that state secrets is a “prudential bar,” Bankston argued in rebuttal. EFF has sufficiently argued the plaintiffs were “aggrieved persons” and the court can’t force them to “demonstrate” that claim, which would require them to prove their case in the complaint. Plaintiffs need only show the government acquired their communications, not by what methods they were acquired, he said. “Do you have anything more concrete than that to offer?” Pregerson asked. Just the evidence provided by an AT&T employee that the company was intercepting all traffic at a San Francisco facility at the direction of the National Security Agency, Bankston said. Justice’s case-by-case argument has no precedent, Maazel said: “Congress spoke in 1978” with FISA and a private cause of action.

'No Check’ or ‘Narrowly Circumscribed’ Role for Attorney General?

The latitude of the attorney general to shield telecom companies from liability for assisting the government was next considered by the judges in Hepting. EFF lawyer Cindy Cohn said Section 802 of the FISA Amendments Act violates the “nondelegation doctrine” under which Congress can’t delegate its unique authority to another entity, in this case the executive branch. The provision lets the attorney general certify for the FISA court that a telecom company was authorized to undertake lawful surveillance at the direction of the government, and is thus retroactively immune for past surveillance. The statute includes no guidance for how the attorney general, who can submit secret evidence with “no check whatsoever,” should go about the certification process, Cohn said.

Hawkins asked whether EFF was simply complaining that Congress took away its cause of action through Section 802. The law itself lacks due process, Cohn replied. “That’s your argument? You're done?” McKeown said. A court hasn’t “entertained” the nondelegation doctrine in 75 years, the judge added. But Section 802 has no “intelligible principle,” Cohn said: “The statute just leaves it up to the attorney general’s whim.” Pregerson said the FISA court has authority to rule whether the certification is backed by “substantial evidence” and is made for the “safety of the country.” The court has a “veneer of a role in this case but it’s not a full role” that would include de novo review and a “neutral adjudicator in the first instance,” Cohn said. McKeown said the executive branch generally has authority over foreign affairs, and the alleged surveillance was done for that purpose even if it involved domestic eavesdropping. But the government can’t constitutionally eavesdrop on “ordinary Americans,” Cohn said. Congress created a system that “stacks the deck” in favor of the attorney general, she told Hawkins, who asked if judges would “rubber stamp” certifications.

Defendant Verizon made a broad claim that it can turn over customer records to the government for any reason under the First Amendment -- a question that demands a “forum” to be considered, yet is precluded by Section 802, plaintiff attorney Harvey Grossman said. Most of the wiretapping cases target the telcos alone because they are viewed not as “secondary players” but “willing collaborators.” Plaintiffs only want an injunction, not damages, he told Pregerson, who asked how the situation might change if the government indemnified telecoms against any claims.

Section 802 is “not all that unusual” among laws in that it depends on an executive branch determination, Justice lawyer Thomas Bondy said. The attorney general’s certification role is “cabined and narrowly circumscribed,” limited to certifying whether one or more of five specific circumstances exist, he said. The first -- whether an alleged defendant’s conduct was done pursuant to a FISA court order, which is always classified -- practically precludes any evidence plaintiffs might offer, Bondy said: “There’s nothing they can add to that discussion,” and neither can Congress.

Asked by Hawkins whether the FISA court can do its own “fact-finding,” Bondy said: “Of course the court plays a role here. This is no rubber stamp.” Noting that some of the FISA Amendments sections are based in underlying statutes, McKeown asked whether the court would have to judge the constitutionality of those statutes. Perhaps, Bondy said, calling the sections “new procedures” for existing laws. Congress didn’t give the attorney general the certification authority with the directive that “you must use it,” but rather to ensure that private parties wouldn’t shy away from helping the government in national security cases because of potential litigation and liability, he said.

Congress could have blocked lawsuits against telcos entirely but chose to put that discretion under the attorney general with some court review, AT&T and Verizon lawyer Michael Kellogg said. The courts have understood that deference to the executive in these cases is important, he said: The plaintiffs’ interest in the wiretapping cases is “at best marginal” compared to the government’s interest in national security and intelligence-gathering methods. The five factors under Section 802 are “really very straightforward” and additional procedures, as EFF suggested, would “not lead to any more likely correct result,” Kellogg said.

Congress can’t just say any ex parte procedure is sufficient for judicial oversight, as Kellogg implied, McKeown said: Otherwise, “no more hearings. Everything can be ex parte.” That’s why the courts have what’s known as the Matthews balancing test, as well as numerous precedents in the 9th Circuit and the Supreme Court, Kellogg said: The risk of “erroneous deprivation” to an alleged victim of wiretapping is very low.

Responding to Bondy’s claims that plaintiffs can’t say anything about a classified court-approved certification order, Cohn said EFF can say a lot. The surveillance program “must have been designed to prevent a terrorist attack” under the rules for certification, but EFF is precluded from bringing evidence that AT&T engaged in dragnet surveillance of all customers, she said. It also can’t bring evidence that “something much broader is going on” than the certification’s claim that the government isn’t doing “keyword searches” for content surveillance, Cohn said: “The denial is very artfully crafted.” EFF would also challenge Verizon’s contention that a computer’s review of phone calls -- not a human’s review -- doesn’t count as interception. If the government’s certification claim is based on that analysis, EFF would litigate on that issue, she said.