Unfortunately, we probably won’t get an actual review of the merits of “Mayfield v. United States due to a lack of standing. But just for kicks, and on the off chance that someday a plaintiff might be able to get to the merits, an analysis of Judge Ann Aiken’s decision regarding FISA is worth while.

In the Plaintiffs’ (Mayfields’) Amended Complaint, attorney Gerry Spence seeks the following on behalf of his clients:

Plaintiffs seek a declaratory judgment that 50 U.S.C. §§ 1804 and 1823, as amended by the Patriot Act, violate the Fourth Amendment of the United States Constitution, on their face, because they:

a. permit the federal government to perform covert physical searches and electronic surveillance and wiretaps of the home, office and vehicles of a person without first requiring the government to demonstrate to a court the existence of probable cause that the person has committed a crime;

b. permit the federal government to perform covert physical searches and electronic surveillance and wiretaps of a person without first requiring the government to demonstrate to a court that the primary purpose of the searches and surveillance is to obtain foreign intelligence information; and

c. permit the federal government to covertly collect, disseminate and retain information collected through covert physical searches and electronic surveillance without first requiring the government to demonstrate to a court the existence of probable cause that the person who is the target of physical searches and electronic surveillance has committed a crime, or, alternatively, that the primary purpose of the searches and surveillance are to obtain foreign intelligence information.

Based on Judge Aiken’s decision I say, Gerry Spence for next Justice of Supreme Court rather than Judge Aiken!

The argument in the Mayfields’ Memorandum is summed up in the heading:

The “Significant Purpose” Standard of FISA, as Amended by the Patriot Act, is Unconstitutional. Unless the Primary Purpose of Electronic Surveillance and Physical Searches is the Gathering of Foreign Intelligence, Fourth Amendment Standards Must Limit the Government’s Intrusive Police Actions.

Mr. Spence lays the argument out as an either/or issue:

1. Either the government seeks information via the FISC because the primary purpose of the surveillance is for foreign intelligence matters, OR

2. The government must comply with the Fourth Amendment.

It seems very simple. Yet Judge Aiken manages to mangle the issues and her reasoning in the decision.

Her Honor does seem to get part 1 correct:

Significantly, a seemingly minor change in wording [by the Patriot Act] has a dramatic and significant impact on the application of FISA. A warrant under FISA now issues if “a significant purpose” of the surveillance is foreign intelligence. Now, for the first time in our Nation’s history, the government can conduct surveillance to gather evidence for use in a criminal case without a traditional warrant, as long as it presents a non-reviewable assertion that it also has a significant interest in the targeted person for foreign intelligence purposes.

…

The decisions in Katz and Keith drew a line between surveillance conducted by law enforcement officials to investigate crime - which requires a traditional warrant based on probable cause - and surveillance conducted by intelligence officials to obtain foreign intelligence information.

From there, the decision goes haywire.

Rather than simply require the government attest to the FISC that the primary purpose of surveillance sought is for foreign intelligence, or in the alternative, require the government get a warrant, Judge Aiken veered into an analysis of the Fourth Amendment with regard to FISA.

The crux of the issue is judicial review. If a court determines that the primary purpose of surveillance is to gather foreign intelligence, the Fourth Amendment does not apply. See, United States v. United States District Court, (Keith) 407 U.S. 297, 322 (1972).

But the Patriot Act removes true judicial review from the FISA application process. As such, it is the Executive Branch - not judges - that determines whether certain surveillance is for the “purpose” of gathering foreign intelligence.

Therein lies the real constitutional issue. If the Executive can merely write their own FISA warrants without true judicial review, then in cases where it is not gathering foreign intelligence, the Executive can thereby circumvent the Fourth Amendment via an ill-conceived Congressional act - FISA. Congress has cut judicial review out of the process thereby giving the executive broad power violating the bedrock of the Constitution: Checks and Balances.

The Threshold Question

Is the purpose of the surveillance sought for foreign intelligence or domestic?

Until that question is answered, the Fourth Amendment should not be considered. If deemed foreign intelligence gathering, then probable cause is not the standard. FISC issues such warrants.

The problem is that the Threshold Question is asked and answered by the Executive Branch and the Executive Branch alone under the “clearly erroneous” standard of 50 U.S.C. Section 1805 (a)(5).

It seems that in the Aiken ruling the solution is to apply the “probable cause” standard under the Fourth Amendment to determinations of the Threshold Question. I believe this is not the proper standard. It is putting the cart before the horse. The Fourth Amendment does not apply if it is determined that perspective surveillance is for foreign intelligence.

The Threshold Question must be determined by an independent member of the judiciary - FISC. The standard applied should be the “preponderance of the evidence” standard rather than the “clearly erroneous” standard.

Once the Threshold Question is answered in a detached manner, the application of the Fourth Amendment becomes clear:

If the court determines by a preponderance of the evidence that the purpose of surveillance sought by the Executive Branch is for foreign intelligence, then FISA applies.

If the court determines by a preponderance of the evidence that the purpose of surveillance sought by the Executive Branch is not for foreign intelligence, then the Fourth Amendment applies.

It is the blurring of the distinction between foreign intelligence and domestic by all in government that has led to the expansion of FISA itself.

A tailored, logical approach might prevent the expansion of warrantless searches and seizures.