SEMINAR ON

FOREIGN INTELLIGENCE SURVEILLANCE ACT

September 25, 2003

John Stevens I’m John Stevens, and I’m the current President of the U. S. District Court Historical Society of Oregon and I’d like to welcome you to what I believe is our ninth presentation that we’ve had in this continuing series, and the Federal Bar Association joins us in co-sponsoring this presentation. Before Bill Long introduces the program, I’d like to recognize several people who are responsible for putting this program on. First, Bill Long, who was the main organizer and the driving force in putting together this wonderful presentation that you’re going to see today. Also working with Bill was Jennifer Johnston, who helped him organize the program, obtained approval for the MCLE credit, and helped with publicity. Leah Lively, who was in charge of publicity, the success of which I think is borne out in the great crowd that we have here today. Linda Sherry, our clerk’s office liaison, who helped us in innumerable ways in this program, and also in everything else her organization does. Tom Sondag, our former president, who was responsible for inviting Judge Baker, and finally my partners Mike Esler and Kim Buckley, who — and this will be news to them — for their generous contribution in supplying these materials that you have today.

I might add here that for those of you who are lawyers for your MCLE credit, the very last page of these materials is your recordkeeping form so you can keep track of that for your MCLE credits.

I’d also like to recognize Roy Fulvers and the constitution team from Lincoln High School. This is, I think, their third or fourth program that they’ve attended, and we always welcome them and are very pleased that they are able to attend this program. With that, I’ll turn things over to Bill.

Bill Long Thank you John, and I add my welcome to you for this unique program this afternoon on surveillance, the Foreign Intelligence Surveillance Act in court. I think you’ll agree with me after we introduce the panelists that we have perhaps assembled the — an unequaled array of talent and experience on this issue perhaps in the national venue. Surveillance is now a hot button issue in the United States and we are going to be dealing with one aspect of that issue today, the Foreign Intelligence Surveillance Act in court. The issue, though, is just much broader than a statute. It implicates not simply a statute but the way that the Department of Justice has implemented the regulations, the way that the USA Patriot Act of 2001 has modified the Intelligence Act, and the way that a decision came to the courts regarding certain procedures of the

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United States Department of Justice.

We have today people who can help clarify issues relating to the Surveillance Act in court, and we also want to leave some time at the end for your questions on those issues. A packet has been prepared for you. It has the statute, it has some other handouts, the decisions below. And I think most interesting, if you have no more than 10 minutes, is about eight pages of petition for cert to the U.S. Supreme Court that discusses the entire history of the issue that is going to be presented to you today. I’d urge you to pick one of those up if you have not already.

Let me introduce the panelists in the order they are going to be going, who they are, what they’ll be doing today. First speaking will be Mr. Charles Gorder, Assistant U.S. Attorney from Oregon, been in Oregon about a dozen years, specializes in criminal law issues, white collar crime, came to us from the San Diego office about a dozen years ago. He will speak on the Act, the scope of the Act, and then tell us about the nature of warrant or order requirements under the Act.

We are extremely pleased to have as our next speaker the Honorable Harold Baker, who is a senior judge from the Central District of Illinois, who is a judge on the Foreign Intelligence Surveillance Court, who was the author of the opinion that you have in your packet that disallowed certain procedures that the U.S. Department of Justice wanted to implement in 2002. Judge Baker has told me that he is not the author of the opinion but the scrivener of the opinion, and I don’t know, but the only scrivener I know in law is Bartelby, and you are far different than the Bartelby I remember in Herman Melville’s tale. So I’ll just refer to you still as the author, sir, and you can correct me then later. But we welcome you and your family from Illinois.

Our third speaker will be our own Honorable Edward Leavy, who for two years now has been a member of the Foreign Intelligence Surveillance Court of Review, the court that overturned Judge Baker’s court’s decision just a few months ago, and he will be telling us about that procedure.

The fourth speaker is Mr. John Klein, an attorney from Albuquerque, New Mexico, who on behalf of the National Association of Criminal Defense Lawyers wrote the amicus brief in the, before the Court of Review and wrote the petition for cert to the United States Supreme Court from which brief we have excerpted materials in your packet.

We also have two other special guests that have emerged in the last few days. I’m just going to introduce them now. If they’ll stand, you’ll see them and maybe you’ll see why I’m introducing them, too. We have with us first of all, I learned yesterday, Mr. Jim Baker from Washington, D.C. who is the Counsel for Intelligence Policy in the Office of Intelligence Policy and

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Review in the Department of Justice. He is the chief United States officer on the interpretation and presentation of the orders for the Foreign Intelligence Surveillance Court. We are pleased to have you with us today, Jim.

We also have Professor William Funk of Lewis & Clark, Northwestern School of Law, who was a staff attorney with the Department of Justice in ’75 to ’77, staff committee member for the House Permanent Select Committee on Intelligence in ’77 and ’78, and was the drafter of what he says is every iteration of the Foreign Intelligence Surveillance Act and worked through that process, and we’re going to hear and meet these gentlemen a little later, too, but they just emerged since the program was planned and so we’ll see. And we still will have time for your questions, too.

Without further adieu, then, let us — why don’t we have a welcome to all of the panelists who will be speaking today. [applause] And first, then, Mr. Charles Gorder on the Act and its scope.

Charles Gorder Well, thank you, Bill, for the kind introduction. Let me just really identify myself and tell you who I am and who I am not in this program. I’m a federal prosecutor and I have been doing that for about 23 years now, primarily doing organized crime and white collar crime cases. I was fortunate enough to be asked to work on terrorism matters after September 11th, and I’ve been doing that pretty much full time since then. However, I am not an expert on the Foreign Intelligence Surveillance Act. The first 21 years of my career I basically had only the vaguest notion of the fact that there was a Foreign Intelligence Surveillance Court and that there was, you know, that the FBI was occasionally wiretapping spies through orders from this court. And I knew very little more about it. And those of us who work in the department today think that 911 dramatically showed why that was a problem, that somebody in my position didn’t know anything about the Foreign Intelligence Surveillance Act.

What I’d like to do is talk a little bit about the actual legal requirements for getting a court order from the Foreign Intelligence Surveillance Court. There is a lot of debate going on in our society today about FISA. That’s the acronym that we always use. And unfortunately a lot of it is uninformed in terms of what exactly is going on in the statute, what the legal requirements are. I mean frankly, I think, a lot of general public thinks that I can just — or an FBI agent can just — call up Judge Baker and say, hey, I’ve got a list of guys I want to wiretap, is that okay? And he’ll say fine, and that’s it. That’s not how it works. So what I’d like to do today is spend some time on the statute and also explain, for those of you who don’t do criminal law, which I think the majority of this audience does not, how it contrasts with the ways we do investigations in the first 21 years of my career in criminal cases.

Now the FISA statute was passed in 1978. There is a funny story about how

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it got started. If I was put under oath, I couldn’t swear that the story is true because I don’t have any personal knowledge of it. But if it is not true, it should be. And the story is, is that you’ll recall that President Ford appointed Edward Leavy to be the Attorney General, and there had been some problems with some of the past Attorneys General. Some of them were convicted, and there was an effort to clean house, I guess, in Washington, D.C. And Attorney General Leavy is sitting in his office, the first week he’s in office, and somebody comes in and says there’s an FBI agent here to see you. And he walks out and here’s this guy in his gray suit, he’s got the fedora on, I mean, this is back, you know, still J. Edgar Hoover’s FBI. And he says General, I need you to sign this. And he says, well what is it? Well, it’s a list of guys we’re going to wiretap. And Edward Leavy looks at it and says well wait a minute here. What do you want me to sign? He says, the authority for us to wiretap these people. All the Attorney Generals sign it. And he didn’t think that was right and that was one of the geneses that led to Congress passing the Foreign Intelligence Surveillance Act in 1978, which set up a court and a legal standard for when the government can do electronic surveillance in matters involving national security.

Okay, so I prepared — in your materials you will see, and it’s at the back of the statutory cites — a chart that kind of lists the requirements for both criminal search warrants and wiretaps and foreign intelligence surveillance and wiretaps. And I’d like to just go through that because I think you’ll see that they parallel each other in a number of ways. There are very important differences in the two regimes. But basically if you take a look at the chart, you will see that [in] a normal criminal investigation, two of the tools the government may use is — okay, and it’s right before the opinions that are in the material. There are two important tools that the government can use in a criminal investigation. One is to get a search warrant and the other is to get what we call in our world a criminal wiretap order or a Title III order, which allows for electronic surveillance, basically, tapping a phone or putting a bug in a particular location.

Now, criminal search warrants are issued by federal magistrates. Criminal wiretaps actually have to be approved by an Article III District Judge. In the FISA regime, that is similar. A FISA court judge has to issue the order for the electronic surveillance and those consist of all Article III judges.

If I want to get a search warrant, there are a number of things that I have to do — a criminal search warrant. One is to show that there is probable cause that a federal crime has been committed. Second, to show that there is probable cause that evidence or fruits of that crime exist. And third, if there’s probable cause to believe that evidence or fruits of the crime can be found at a particular location, for example, a person’s house. A wiretap order, or a FISA order, is very similar. I mean, if you think of them as search warrants to seize conversations, you can understand how these regulatory schemes work. To

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get the wiretap order, I have to show probable cause that certain federal crimes have been committed. Not every federal crime is on the list. Congress adds them over time. It’s a long list. Drug dealing, for example, is one of those. I have to show that there is probable cause that conversations which are evidence of that crime will be intercepted during the surveillance, and I have to show probable cause that conversations that are relevant to the crime are occurring on the particular facility that I’m trying to intercept. In other words, a particular phone number, for example. So a search warrant, a particular house or location, in a criminal wiretap a particular phone line, for example.

Now the FISA regime is a little bit different. The first thing that someone has to show to get a Foreign Intelligence Surveillance order is that the target of the surveillance is an agent of a foreign power. Now I’m going to talk specifically today about this in the context of international terrorism and investigations of people within the United States. The term in FISA is United States Persons. And what that basically means for our discussion are U.S. citizens and aliens who are resident in the United States, or legal residents of the United States.

To obtain — if they are the target of a foreign intelligence surveillance order, they have to be, there has to be probable cause that’s established in an affidavit signed by an appropriate official, that they are the agent of a foreign power. Now foreign power can include an international terrorist organization. So that is how it comes up in the context of international terrorism cases. So that’s the first thing. Now, you’ll notice in the criminal world, you don’t have to show that someone is working for a particular organization or a particular foreign organization. So that’s a distinction. It’s an additional element in the FISA regime that doesn’t appear in criminal wiretaps.

The second thing, however, is when it’s a U.S. person, in other words a U.S. citizen or a resident alien, we also have to show probable cause in FISA that the agent of a foreign power is committing crimes in connection with his agency so to speak. In other words, in his role as an agent for a foreign terrorist organization he is committing crimes. So this is a — it’s similar to a wiretap in the sense that you’ve got to show probable cause that a crime is being committed. But you have this additional requirement of tying that crime to a foreign power.

The next thing is — and this is — that’s the first important distinction, I guess, between wiretaps on the criminal, in the criminal world, and wiretaps in the FISA world, is the agency of a foreign power requirement.

The second important issue is, in the wiretap context, as I mentioned, in the criminal context, you’ve got to be able to show that your person is using this particular phone line to commit the crime. Now that is different in the FISA

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world. There you have to show probable cause that your agent of the foreign power is using the phone line. But you don’t have to, at least initially, show to the court that he is using that phone line as part of his role as an agent of a foreign power. So it is a different distinction in that particular case. Now there is another legal term we talk about called necessity. It doesn’t apply to criminal search warrants. When I want to do a search warrant, all I’ve got to do is take it to a federal magistrate, show probable cause as I discussed, and he’ll issue it. In order to get electronic surveillance in both the criminal context and in this foreign intelligence context, there is an additional requirement that we show that ordinary techniques of learning the kind of information we’re after haven’t worked, frankly. And so, because this surveillance is intrusive, that additional requirement has been imposed by Congress in both areas. So again, the two regimes are similar in that respect.

How about notice? That’s the next issue. When we do a search warrant, a criminal search warrant, usually the person is present. Let’s say if we’re searching someone’s house, usually they are there. So they obviously know their house is being searched. Generally when a criminal search warrant is served, notice of the search is provided to the owner of the premises. If they’re not there, we leave something behind that let’s them know, you know, the FBI was here.

There is a provision in the criminal code currently that allows a delay of that notice for some short period of time at the approval of a judge. In the FISA context, however, when there is a search that is done, you know, a search warrant from the FISA court so to speak, there is no notice to the target unless some day later the evidence is used to prosecute the person, and then he is given notice of the FISA search.

So there is one of the differences between the two regimes. In the wiretap context, for example, there is also notice provided to the target of a criminal wiretap, but it’s done after the fact, in other words, obviously as soon as you start tapping his phone, you don’t tell him you’re doing it or you wouldn’t get any good information. So the notice provided on the criminal side in electronic surveillance is provided by, after the fact, usually 90 days, although that can be postponed by a federal judge if the investigation is continuing.

Now a search warrant — here’s another distinction between the two — has to be approved by an Assistant U.S. Attorney usually. That’s not a legal requirement, but I’m not aware of any U.S. Attorney’s offices that allow, for example, the FBI to go see a federal magistrate with a proposed search warrant without them looking at it and approving it first. For a criminal wiretap, the approvals are much more extensive. There has to be approval by both the United States Attorney’s office, but also by an Assistant Attorney General in Washington. In the case of the foreign intelligence court, that approval is even higher. These applications have to be approved by either the

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Attorney General himself or the Deputy Attorney General, and as a general rule in the context we’re talking about, international terrorism, they also have to be certified by the Director of the Federal Bureau of Investigation. Under the current law — and that’s the law that the Patriot Act amended FISA — the certification has to be that the purpose, there is a significant purpose of the surveillance to collect foreign intelligence. That’s the current statute. You will hear later on a discussion about previously, before the Patriot Act, the statute said that the FBI director had to certify that the purpose was foreign intelligence collection, and that was interpreted as meaning the primary purpose of the collection was foreign intelligence collection rather than a criminal investigation.

Now, the next concept I want to talk about is minimization. A search warrant for a house, let’s say, does not as a general rule, unless it’s a real unique fact situation, allow the FBI to drive up to the house with a moving van and haul every piece of furniture and every piece of paper out of the house. It lists a specific kind of property that can be seized at the house and the agents are limited to the scope of the warrant, what the judge has authorized the seizure of, for example drugs or cash or guns or whatever.

In the context of electronic surveillance, again if you think of it as a search warrant to seize conversations that are evidence of a crime, for example, or that are foreign intelligence, there is a similar concept. You can’t seize them all. You just have to seize the conversations that are relevant to the purpose of your order; in other words, what you’re actually looking for. So, for example, in the criminal wiretap context, the way this works is the FBI will be listening to the phone conversation as the people are talking, and if they decide that it’s not evidence of a crime, they’ll turn off the recording and it will not be recorded.

So in the criminal wiretap context, what usually happens is — and there are some exceptions to this — that the recording is stopped whenever the agent who is doing the monitoring thinks he’s not getting evidence of a crime.

In the FISA context what generally happens is that concept is handled after the fact. The recording goes on and the way that it is minimized — that’s the legal term — is in the way the FBI handles the information afterwards. In other words, if it’s relevant to their foreign intelligence purpose then it’s kept in their system in a way that they can get to it, and if it’s not relevant, it’s basically not taken care of in such a way that they can review it in the future. And that’s how it works in that context.

Now those are really the comparisons between the two regimes: probable cause in both regimes, some tougher areas for the government in the Foreign Intelligence Surveillance Act, because you’ve got to show this agency of a foreign power, and some areas where it’s tougher in the Title III context in the

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criminal world where you’ve got to tie it to a particular phone line. Now that’s the statute.

Let me just talk very briefly about the wall. What happened after FISA was passed was that the dissemination of information that was collected during FISA surveillances to criminal investigators and criminal prosecutors was very, very rare. It was only under very extreme control conditions, usually kind of after the fact. In other words, after a FISA was over, if there was evidence of a crime it might be turned over to the prosecutors. And there were tweaks in this system over the years, but basically it was very rare. And that was done because of the way people read — the way people in the justice department and in the courts — read the purpose part of the Foreign Intelligence Act as to whether or not there could also be a purpose to do criminal investigations, and also the way people read the Constitution, you know, what was constitutional in this area, and also, frankly, I think as a prophylactic to protect civil liberties.

But here was the problem and it came to a head, really, after 911. Our primary mission after September 11 is to prohibit or to prevent another attack on the United States like the one we suffered. And, because when you’re dealing with these U.S. persons, there has to be probable cause that they are committing crimes involving international terrorism before you get a foreign intelligence surveillance order. When your FBI investigators working in that world were tapping someone’s phone, for example, they were tapping someone’s phone where there was probable cause to believe that they were committing a crime. And at the same time you might have another FBI agent investigating the same person for the same crime on the criminal side of the FBI and really they couldn’t talk to each other and it was a tremendous waste of resources. I mean, the FBI’s a big organization, but they can’t afford to duplicate their efforts and have two people investigating the same person and not talking to each other. So, I mean that was really the problem. And because of that, we came up with a proposal to the FISA court to change that so that criminal investigators and criminal prosecutors could be involved in the establishment of FISA orders that were being proposed by intelligence investigators, and I guess that leads us to Judge Baker and his opinion.

Judge Baker Good afternoon, ladies and gentlemen. It’s a pleasure to be here, and I thank the Historical Society for inviting me. I’m concerned about the array. I have a wife and a daughter in the jury box and I don’t think that would fly in a real life situation.

This is a unique opportunity for a trial judge to have the experience of being placed in this position. Here I am on a panel with an appellate judge who wrote the opinion that reversed the order that I wrote and also gave me the dubious historical significance of being the only FISA judge in history who ever got reversed.

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If what I say is critical of the Sealed Case — the FISA Court of Review decision, it’s entitled “Sealed Case” — I intend my remarks in a constructive way and hope they will be received in that light, and of course Judge Leavy gets the chance to speak last and he can point out to Baker that you were in error in your thinking before and you still are.

I intend this as an academic discussion of the interpretation of the FISA. You’ll hear us talk about FISA, F-I-S-A, Foreign Intelligence Surveillance Act, as it’s been amended by the Patriot Act. I can’t and won’t discuss any individual cases or matters that might compromise the intelligence community’s methods or sources. Those will not be discussed in our afternoon session here.

Understand the narrow question that’s before us. And it is a very narrow question that we want to discuss in this forum. I will talk about U.S. persons as they are thought to be acting for a foreign power. And a foreign power is defined in the FISA as foreign government, an entity controlled or directed by a foreign government, or a group engaged in international terrorism.

What’s the historical background of FISA? There’s been some reference to it. It sprang directly from the abuses of surveillance by the executive during the Cold War, Watergate, and Vietnam. It goes back before that. It really starts with the United States’ emergence as a world power at the turn of the 20th Century, back in the time of Theodore Roosevelt, when the United States really emerged on the international scene as a power. After McKinley was assassinated, remember the Red scare, the problems of anarchy, if you think back into your history lessons, and the Executive branch of government reacted. Then Attorney General Bonapart in 1908 appointed 34 special agents in an unnamed investigative bureau in the Department of Justice — I bet you didn’t know where “special agent” came from — to look for anarchists, Reds, and turned that into the FBI in 1923. And you’ll find that Saint J. Edgar Hoover’s name runs all through the history of domestic surveillance until his death in 1972. World War I’s sphere of espionage that then Attorney General Palmer instigated surveillance tactics by the executive involving foreign intelligence. World War II, with President Franklin Roosevelt in the development of the Office of Special Services, OSS, and then the Cold War came upon us.

And then, of course, we have the revolution in communication methods. The Fourth Amendment talks about persons, houses, papers and effects. It doesn’t talk about telephones, faxes, e-mails, internets, local area networks, wide area networks, things of that sort. Henry Kissinger was mentioned, I guess, before, is notorious. He got sued by Halperen. It’s reported in the federal reports where he thought Halperen was leaking information from the National Security Council and he authorized surveillance taps. Again, the straight

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Executive’s power to protect the United States in foreign intelligence matters.

Now you should understand that the Executive, the President, has as one of his hats, he’s the head diplomat and he is charged with protecting the United States in foreign intelligence affairs and matters relating to foreign governments. He still has that. It’s where the United States’ person enters into the formula that we have concern and in our discussions here.

The activities of the Church Committee —and it wasn’t the Pike Committee at all — I guess it was the Select Committee of the House that had more to do with FISA than the Pike Committee. The Rockefeller Commission. I was a staffer for the Rockefeller Commission. I had the exalted title of Senior Counsel and was involved in the surveillances that the agency carried on on dissident Americans who were engaged in criticism of the Vietnam War, Operation Chaos it was called. The mail intercept that the agency conducted. Remember the Pentagon Paper flap in history? All these things led to the passage in 1978 of the FISA Act which was amended in 2001 following 911 by the Patriot Act.

All the Executive’s activities, with the exception of J. Edgar Hoover’s wiretaps, concerned or sprang from concern about foreign influence, about foreign influence infiltrating our society. It’s part of the discharge of the Executive’s power and function to protect the United States from foreign influence.

FISA was intended, I submit to you, to provide judicial oversight and balance to the Executive in the field of gathering foreign intelligence and counter- intelligence within the United States, and through the minimization procedures — and I’ll talk more about those in a minute — called for in the statute to afford some respect for privacy under the Fourth Amendment for U.S. persons who were FISA targets. There’s a distinction between foreign intelligence and counter-intelligence. Foreign intelligence is gathering information about foreign government, foreign power activity within the United States, and the counter-intelligence is also that to some extent, looking for spies from foreign powers, but also looking for defectors within the United States intelligence community who become agents of foreign powers in betrayal of their own government.

How did these opinions arise? Mr. Gorder — no it wasn’t, it was Professor Long — said I wrote — no, that’s not true. I was the scrivener of the one that got reversed. So let me tell you how it came about. The government moved before Royce Lamberth, who was the then presiding judge of the FISA court, to vacate all prior orders on minimization procedures. What’s a minimization procedure? The intelligence or information is collected. It’s then evaluated, analyzed, and disseminated, and what’s foreign intelligence is kept and what’s trash is thrown out. And if there is evidence of criminal activity, the

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intelligence officer is required to keep that and turn it over to the Department of Justice. It’s in the statute. They don’t just throw out the criminal information because it’s not foreign intelligence. The statute specifically, the FISA specifically says it should be retained and disseminated to the Department of Justice. Lamberth refused after hearing before all the judges. We were then seven of us. There was no provision for en banc hearing or acting together, but we all decided we should have a consensus and so we scheduled a special hearing and all seven of us went to Washington and had a hearing where the Department of Justice came and argued for its position that we should vacate the existing minimization procedures and wall procedures that had been adopted by — I got ten minutes left? Wow, I better hurry up, because I want to get to the important part. Anyhow, he refused. I was the judge on duty in July. He wrote an opinion. We all edited it. All seven of the judges had their hand in that. It was the opinion written by a committee. And when I had the duty in July, they brought the case to me, a particular case, I refused to vacate the existing minimization procedures and that order then was taken on appeal and that’s the thing that got in front of Judge Leavy.

The wall and minimization procedures that I want to talk about grew out of Executive decisions and actions of the FISA court to keep the criminal and the foreign intelligence operations separate. And the heart of the matter that we’re discussing lies in the order of the FISA court that we prohibited the Criminal Division of the Department of Justice from initiating or controlling a FISA surveillance investigation for law enforcement objectives. In other words, we said the Criminal Division cannot run a FISA operation. It’s for foreign intelligence, not for law enforcement purposes. And that is the particular question that went up on appeal — I have to hurry now, because I’ve only got ten minutes, I understand — and was presented to the Court of Review: Could the Criminal Division control and initiate a FISA investigation for law enforcement purposes? The two things that I find truly amazing about the Court of Review’s opinion that the FISA law is a law enforcement tool and you were all supposed to read both opinions before you came and do your homework. First, the Court of Review found a constitutional question where none had been decided. And second, it ruled that the procedures for the collection and dissemination of FISA product were not minimization procedures within the meaning of FISA. Nothing in the history or wording of the statute would suggest that it is anything but a foreign intelligence collection statute. It’s not a law enforcement statute.

What constitutional question was raised? None. We specifically wrote that the question before the court raises no constitutional question that need be decided. In the best jurisprudential tradition, we avoided the constitutional question and decided the case on the basis of statutory interpretation and what we viewed as the Congressionally-granted discretion to evaluate proposed minimization procedures where U.S. persons’ rights to be secure in their persons’ houses, papers, and effects was invaded. Yet the opening sentence

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of the Sealed Case says this is a case that raises important questions of statutory interpretation and constitutionality. As to the minimization procedures, the words of the statute clearly and obviously give the court the right to modify the Attorney General’s proposed minimization proposals if they are not reasonably designed and consistent with the need of the U.S. to obtain and produce foreign intelligence. Yet the Court of Review opinion says that what we were amending were not minimization procedures but internal regulations of the Department of Justice and none of the FISA court’s business. Well, query, why then did the Attorney Generals submit them to the court? Minimization, as I told you before, deals with analysis, evaluation, and dissemination of collected information. It seems perfectly clear that that is what the Attorney General was writing about. Now I certainly don’t — how much more time have I got? Oh, I can handle it then.

All right, I certainly don’t see any point in holding any further autopsy of the lower court decision in [inaudible] matters or engaging in further criticism of the Sealed Opinion. What I’d like to do is talk briefly about what I see as the outcome of the Sealed Case opinion. First, the members of the FISA court are true and loyal servants and we dutifully vacated the July order and approved the Attorney General’s minimization procedures. However, knowledgeable people are of the opinion that the decision of the FISA court of review did a real disservice to the intelligence community. Elizabeth Rindskopf Parker, an expert on national security law and anti-terrorism law, former counsel of the National Security Agency and to the CIA, expresses the opinion that Sealed Case, and I quote her, “which turns two decades of legal learning on its head may not be helpful in combating terrorism.” She observes that since Watergate and Vietnam, the intelligence community has striven to avoid public criticism of its covert activities and to act with concern for individual rights. They seek to gain and maintain public confidence. That is a major theme of the late William Colby’s biography. He urged that to be effective, modern intelligence had to have the support and confidence of the public. Allowing the cops to utilize a foreign intelligence collection procedure to build a criminal case against a citizen is not likely to build public confidence or support.

From a practical point of view, the last thing a person running a foreign intelligence or counter-intelligence operation needs or wants is some law enforcement person telling him how to run the operation. Consultation and cooperation are fine, but the goal of a foreign intelligence or counter- intelligence case is not to build a case for arrest and conviction. That is what law enforcement does. The foreign intelligence or counter-intelligence case is to find out what is going on and what is planned. True, in counter- intelligence cases like Ames, Nicholson, Pitts, Hanson, Sheik Rahman’s arrest and incapacitation are an end result. In other words, in some foreign intelligence operations you’re going to want to pick the person up off the

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street and incapacitate them. But discovering the extent of compromise would be a private objective in the investigation. In other words, you want to see what’s been compromised and find out how you’ve been hurt, how much you’ve been hurt. Arresting foreign agents and locking them away may be necessary to thwart an impending act of terrorism, but it doesn’t get at the network or the source the way intelligence work can. Nothing in the rulings of the FISA court prevented — they encouraged the sharing of information and cooperation within all branches of the government. Knowing the propensity of the intelligence operatives toward secrecy, I doubt that the Court of Review decision will make them any less secretive or compartmentalized in relations with the Criminal Division. Now there are good things going on. The FBI is becoming more of a counter-intelligence agency and there is a great deal of sharing going on, which has been encouraged by the FISA court.

Speaking of compromise, the risk of compromise rises exponentially with the increase in the number of persons who are witting to an ongoing intelligence operation. The challenge to the intelligence community and national security and anti-terrorism matters is not the ability to get convictions. That is just not their bag. The challenge is the accurate and speedy analysis of collected information. The analysis and evaluation of collected information turns heavily on language skills and culture knowledge, things the intelligence community has been short on. The FBI, which is responsible for counter- intelligence in the homeland, historically has not evaluated collected information. It was primarily a collector of raw data. That has changed dramatically since 911, and Director Muller has placed great emphasis on the expansion and improvement of the counter-intelligence capabilities to the Bureau. The cooperation within the intelligence community also has taken great strides forward, not like the days when J. Edgar Hoover withdrew his one liaison agent from the CIA because he was angry about some turf struggle.

Criminal law enforcement is not, I submit to you, an effective way of combating international terrorism. Law enforcement can punish an individual and incapacitate him, but deterrence is a joke where you are dealing with religious fanaticism. In fact, it is a joke in most criminal matters about criminal law deterring other activities. It doesn’t work. Taking out an individual will not break or deter a network. Others will immediately fill in the ranks and be tipped off to the government’s awareness — I’m losing my voice — of their presence and objectives.

Finally, let me end up by saying the Congress is going to have the last say in this matter. FISA originated with the Congress and it will surely be revisited. The Patriot Act sundowns, I think, in 2005, and so certainly by then there will be a full-scale debate and hearing. Senators Leahy and Durbin, who are on the judiciary committee, and Durbin’s also on the select committee of the

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Senate for intelligence, unequivocally say that they had no intention that the Patriot Act should be used for law enforcement purposes when they voted for it. And what will transpire at reconsideration is a matter of total conjecture.

Judge Leavy — congratulate the persons in charge of this program for assembling my colleagues with me here in Portland. I consider it a special privilege to have these two gentlemen with us, and I should just fill in a few blanks about myself. First of all, Judge Baker, I want you to know and be reminded that I was a trial judge for 30 years and I know the mindset of a trial judge and I appreciate it. In fact, one of my favorite lines to an appellate court was one that I uttered to a Justice of the Supreme Court of Oregon when I had been reversed in a case by a margin of 4 to 3, and I suggested to that Justice that the score was even, because it was 4 of them against 3 of them and me.

And then I should tell you that Mr. Klein and I first got acquainted when he represented Wen Ho Lee in connection with the events at Los Alamos Laboratory, and I did the mediation in connection with that case and came to respect all of the lawyers, both prosecutors and defense attorneys in that case, and that was a rewarding experience from a standpoint of professionalism.

Now I, like many of you, as was indicated here earlier, had very little, if any, consciousness of the Foreign Intelligence Surveillance Act or the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review until I was contacted by the Administrative Office of the courts and asked if I would accept an appointment to the Foreign Intelligence Surveillance Court of Review. And I allowed as how I would, and I began to learn a little bit about that court, and found that in its 24 years of history or whatever it is, it had never heard a case. Now, I thought I was being appointed to the perfect court, and I think we would all agree that that comes as near to perfection as you can get. The appointment is made by the Chief Justice, and a judge of the Foreign Intelligence Surveillance Court of Review need be a district judge or a circuit judge. As it happens, the judges of the Court of Review are all judges of circuit courts. The judges of the Foreign Intelligence Surveillance Court, as I recall, must be district judges, that a circuit judge would not be qualified to be on that court. The appointment is made by the Chief Justice. The term is for 6 years. My term expires in 2008.

We first became aware a few months before the motion for review was actually filed that the court had a potential case in the works. When the motion for review was filed, and incidentally the lingo is slightly different because it’s not a notice of appeal, it’s slightly different lingo. We are not a court of appeals, we are labeled a court of review. When that was filed, we then set up some schedules, including allowing the American Civil Liberties Union and the Association of Defense Counsel to file amici briefs. And as you know, Mr. Klein filed one on behalf of the defense lawyers association. The chief judge, or presiding judge to be more precise, of the Court of Review

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is Judge Ralph Guy of the Sixth Circuit from Ann Arbor, Michigan. He happened to be here in Oregon to witness the defeat of the Michigan football team at Autzen Stadium. And the other judge at the time was Judge Larry Silverman of the DC Circuit.

As has been stated here, the Act was passed in 1978 and all of the Attorneys General prior to Attorney General Leavy, as I understand it, had opposed a statutory control of wiretap done at the behest of the administration, the various administrations in the name of national security. He became a supporter of the legislation. It had been introduced a number of times over a number of years. The Act that ultimately passed, as I say, it was introduced in, let’s say, ’78. And from my perspective, given the sponsors of that legislation and the kind of support that it had, I suspect that those who thought that the administration had the power to wiretap without the benefit of court orders were afraid that the courts would say no, you don’t. And those that felt that the administration did not have that power were afraid that the courts would say oh yes, you can, or oh yes, they can. And so both sides of the political spectrum or both sides of the advocacy, if you will, decided that whatever it was going to be, it should be controlled by statute. And it was passed after various efforts with the support of the persons from the Ford administration as well as the active support of the Carter administration. The legislation was actually introduced by, in the House by then Representative Redino, who had been chairman of the committee that heard the impeachment issue with respect to President Nixon, and in the Senate was introduced by Senator Kennedy with the support of a diverse group that included Senator Strom Thurmond.

Now I, I say that, because the crafting of this legislation is the product of a great deal of compromise, a lot of hearing, and a lot of thought. Now, I had the benefit of taking a sophomore philosophy course once, and I became fascinated with definitions, such as the definition of beauty. And as it happens, I memorized it. I’m not going to recite it here, but I said as a preface to the proposition that the substance of this Act, as the legislative history says, is contained in its definitions. And anyone who talks about this Act without focusing on the definitions will lose sight of where they are.

Now, first of all, an agent of a foreign power is defined. Well, I should back up. A U.S. person is defined. A U.S. person is a U.S. citizen or a lawful permanent resident, a U.S. person. An agent of a foreign power, if that agent is a U.S. person, must not only be acting on behalf of a foreign power, but while acting on behalf of that foreign power, must be engaged in conduct which either is or could be a violation of the criminal law of the United States or a state. Now that means that the term “agent of a foreign power” is defined in reference to criminal law. A foreign power is defined in six different ways. Now we might think we know what a foreign power is by just thinking of the various nations around the world. But one of the six ways that an entity could

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be a foreign power is to be engaged in international terrorism. And international terrorism is in turn defined as conduct which is dangerous to persons or property and which is or may be, or if committed within the United States would be, a violation of the criminal law. Foreign intelligence is defined to include that kind of information which is necessary to protect the United States from attack or serious damage or espionage which is defined by reference to the criminal code. So the first thing I was struck with, I must say, was that every term in this Act as far as the definitions are concerned, is a reference to the criminal law of either the states or the United States.

Now I’m not going to, and I hope you will not take, anything I say as a defense of the court’s decision in In re Sealed Case. That case is reported in 310 F.3d 717. It’s been my attitude that when a court publishes a decision, that decision should stand on its own, and what it says ought to be the reason why you condemn it or the reason why it defends itself. And it shouldn’t take anybody that was a party to it to embellish it any in order to make it stand for anything good.

Now from our perspective, what the Department of Justice had done was set up its own internal arrangement, including an office of intelligence policy and review, or just review?

?? And review.

Judge Leavy That department or portion of the Justice Department had the responsibility for preparing and presenting the petitions for warrants to the Foreign Intelligence Court. Interestingly enough, the legislation which required that these kinds of wiretaps or searches be authorized by the judicial branch — that legislation required that every application bear the certificate of the Attorney General himself or his Assistant Attorney General to the effect that this application conformed to the law. It also required a second certification, that being from another Presidential appointee confirmed by the Senate, who would certify that it was for the purpose of foreign intelligence. Now it was that purpose, the language of that purpose, that was changed by the Patriot Act. The original legislation said “for the purpose of foreign intelligence.” The Patriot Act said that the certification had to be that it was for a significant foreign intelligence purpose. It’s that change in language that the Patriot Act brought to the foreign intelligence surveillance issue, along with a couple of others.

Now I want to go back again to definitions. Minimization is a defined term, and I don’t know whether I trust myself to recite it, but it essentially requires that the Attorney General come up with a plan which will prevent or minimize, if you will, or reduce, the collection, the retention, or the dissemination of non-public information, except — it doesn’t say except, it says consistent with the ability of the government to acquire foreign

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intelligence information. Now literally what that says to me is there can be no collection, no retention, and no dissemination within that plan other than foreign intelligence information as defined in the Act. Now significantly, the next section in that definition says, notwithstanding what the Congress just said, if criminal information is collected or criminal evidence is collected, then that, that evidence must be turned over to prosecutors.

Now in that setting within the Justice Department, the investigators, the FBI investigators who were investigating foreign intelligence were not permitted to confer with lawyers in the criminal division. Now I’ve already went through all the definitions of things as they relate to crime. Except to report after the fact some evidence of what they thought was serious crime. Now I know that the Foreign Intelligence Court did not intend to shut down any prosecution, that wasn’t it at all. The concern, and it’s a legitimate concern, is that the foreign intelligence mechanism not be simply controlled by prosecutors, and the court made it clear that that’s what it wanted to avoid is control by prosecutors. In order to avoid control or direction by prosecutors, it in effect, as a minimization procedure, established a situation in which the investigators could not confer with the criminal division with some exception, that is, through the Office of Intelligence Policy and Review. And in many instances the requirement was that that portion of the Justice Department which constituted the Office of Intelligence Policy and Review had to be present while FBI agents were conferring with criminal division lawyers, or if they were not to be present, they had to be given notice and then some report had to be given as to what was said.

Now our holding was to the effect that that type of restraint, if you will, or wall, as it was referred to, was not necessary. Or that form of what became known as, I guess was in the Justice Department, as the chaperone requirement, wasn’t necessary. So it was variously referred to as the chaperone requirement or that.

Now these are significant values. They are significant values. And Congress, in my view, was fully aware of it in 1978, and this Act, by its structure, requires periodic legislative review, and I don’t know whether Congress has been as diligent over the last 24 years as it might have been on that. I’m not sure. But it will review, and the Act in its total structure then requires that the Attorney General certify that the application conformed to the law, another Presidential appointee confirmed to the Senate has to certify that it’s for a lawful purpose, that is, the purpose of foreign intelligence. The judiciary is invoked by putting the judiciary in a responsible role of saying that the elements of probable cause are met with respect to whether or not the target is an agent of a foreign power and whether or not this specific or particular facility is being used by that agent. And then Congress has its responsibility, too. So when you put the three together, there are, if you will, some balancing, coupled with the realization that this Act does not permit all of the

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openness that might be available in another setting, such as what we refer to as more typical criminal prosecution.

Now I would just close by saying that the legislative history says that — and it’s in the House report — that at some point law enforcement and foreign intelligence, or more precisely counter-intelligence, merge. The case that originally set up this dichotomy between criminal law and foreign intelligence was a case that was decided on facts that occurred before the time of the passage of the Act, but the decision was made after the passage of the Act. And it’s that case that is the origin of this dichotomy, as if criminal law is one thing and foreign intelligence is another. That the two are separate. And Congress in its legislative history has suggested that they merge at some point in counter-intelligence. And if a foreign intelligence investigator turned up evidence that somebody was about to commit some serious crime that constituted terrorism, what would you hope he’d do? Would you hope that he would arrest him? Or let him commit the serious crime, and then kill him? When you suggest that there is a place for prevention in the criminal law, I don’t think it’s necessarily wrong and I think this Act contemplates that.

John Klein Good afternoon. I want to say that Judge Leavy is the unsung hero of the Wen Ho Lee case. I think more than any other person involved in that case, he helped to bring it to, if not a satisfactory conclusion, one that everyone could live with. And I think all of us who played a part in that case owe him a debt of gratitude.

The FISA decision that we’re here to talk about today, the Court of Review decision, presents and addresses a very important Fourth Amendment issue, and that was the subject of the amicus brief that the NACDL presented and to a large extent that the ACLU presented. But it’s not what I want to talk about today. I want to talk about what I think is a more fundamental problem with the whole FISA regime, and that is the fact that everything that happens in FISA happens ex parte and in secret. And I want to begin with some statistics, some numbers, which I have drawn from the annual reports that the Attorney General has to submit every year concerning the operation of FISA.

Between 1979 and 2001, the Foreign Intelligence Surveillance Court, that’s the lower court, the court that Judge Baker sits on, approved 14,036 applications or extensions authorizing FISA surveillance or searches. 14,036. It modified 4 applications before granting them, and on one occasion in 1997 it did not approve an application but it permitted the Department of Justice to amend it and resubmit it. So between 1979 and 2001, we’re talking about a 22-year period, the Foreign Intelligence Surveillance Court approved, without modification, 14,031 out of 14,036 applications, which is a 99.96% rate of approval. That’s a pretty good record, for the government at least. Enviable, I think, for any lawyer.

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Now I compiled those numbers last year when I was preparing the amicus brief for NACDL. And they only run through 2001, so I thought I’d take a look, before I came up here to give this talk, at the 2002 numbers just to see if maybe something had changed in the last year. And I’m here to tell you that the government had another good year. Last year, according to Attorney General Ashcroft, 1,226 applications were made to the Foreign Intelligence Surveillance Court — I’m sorry, 1,226 applications were approved without modification. The Foreign Intelligence Surveillance Court, Judge Baker’s court, approved 2 applications as modified. Those are the two that got appealed to the Court of Review. And the Court of Review reversed and ordered the Foreign Intelligence Surveillance Court to approve them without modification. So Attorney General Ashcroft concludes his 2002 annual report maybe with just a bit of deadpan humor. All 1,228 applications presented to the Foreign Intelligence Surveillance Court in 2002 were approved. So the government batted 1,000 in 2002.

You’ll recall just a moment ago, Mr. Gorder was describing all the hurdles that the government has to jump to get a FISA application approved. He made it sound like, like a mountain the government has to climb. Well, if FISA is a mountain that the government has to climb to get approval, then my friend Jim Baker here, who presents the applications to the court on behalf of the government, must be Sir Edmund Hillary, because he climbs that mountain successfully every single time.

Here’s another way to look at it. The Court of Review — that’s the court Judge Leavy sits on, the one that decided the case that we’re all here to talk about — was created in 1978 as part of the original FISA statute. Now under the statute that created the Court of Review, it’s 50 USC 1803, only the government can appeal, so only the denial of an application gets appealed.

In its 25-year history, the Court of Review has heard one case. That means, that’s because the government has only lost once in the Foreign Intelligence Surveillance Court, that’s the lower court. And of course that one case is the one that we’re here to talk about, and guess what? The government won in the Court of Review. So, that’s because the government always wins when you’re talking about FISA.

Now let me give you some more numbers, because from my perspective, it just gets worse. We’ve been talking here about the application process. That’s when the government goes to the Foreign Intelligence Surveillance Court, Judge Baker’s court, and asks to have one of these surveillances approved. And by the way, just so this isn’t too academic, when we’re talking about surveillance, we’re talking about tapping someone’s phone, reading their e-mails, maybe searching their home, and of course people who are surveilled, whose homes are searched, don’t get notice. They don’t get told that this is going on. It could be happening to you, and you wouldn’t know it.

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So we’re talking about the application part of the process. But suppose that you’re one of the lucky few who doesn’t just get searched or surveilled, you get indicted later on. Then the government has to give you notice — if they plan to use the evidence at least — that they searched you or they surveilled you, and you have a chance under FISA to file a motion to suppress. All right?

Well, what happens then? That’s when everything comes out, right? That’s when the constitutional errors, all the issues get fully aired, and everything is okay, right? Wrong. As far as I can tell from my research, no district court has ever granted a motion to suppress FISA evidence. No court of appeals has ever reversed a district court’s refusal to suppress FISA evidence. So here’s the bottom line. The government applies for 500, 1,000, sometimes more of these FISA orders or extensions every year. Before Intelligence Surveillance Court, that’s Judge Baker’s court, always grants the applications, or if it doesn’t, that one time, the Court of Review reversed it and ordered it to. Federal district courts never suppress the fruits of a FISA surveillance or a FISA search, and the courts of appeals never reverse the district courts. To put the matter simply, when you’re talking about FISA, the government always wins.

Now I’m getting to my point. What accounts for the government’s perfect record in FISA proceedings? Could it be, is it possible, that in this one endeavor the government has achieved perfection? It just always gets it right? Well, I may be a cynic, I may be a skeptic, but I don’t think so. I think the government does in FISA, as in other things, a good job, an honorable job, a professional job, but I don’t think it does a perfect job. I think that the explanation for the government’s enviable record in FISA proceedings may lie with some additional numbers.

I mentioned a moment ago that if you’re lucky enough to get indicted and FISA evidence is going to be part of the case, you have an opportunity to move to suppress the evidence. But, if you file a motion to suppress and the Attorney General then comes into court and says that disclosure to you of the FISA application that was filed with the FISA Court of Review or the order by the FISA court — I’m sorry, with the Foreign Intelligence Surveillance Court — or the order of Judge Baker’s court that authorized the surveillance, if disclosure of that to you, that’s the defendant or defense counsel, would harm national security, then the district court has to conduct the review of the suppression motion ex parte and en camera unless such disclosure to the defense is necessary to make an accurate determination of the legality of the surveillance. So it’s going to be review of a suppression motion. Here I am a defendant, now. I’ve been indicted. I file a motion to suppress. I claim that the surveillance was illegal. I don’t get to see the underlying application. I don’t get to see the order that allowed them to tap my phone, read my e-mail,

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search my house. That is all ex parte and en camera unless the district court finds that it’s necessary for me to see it to fairly and accurately determine the legality of the surveillance.

Now, let me get back to some numbers. In every single case over the last 25 years where defendants have moved to suppress FISA evidence, the Attorney General has come into court and filed an affidavit saying that disclosure of the application or the order to the defense would harm national security, every single case. And in the entire 25-year history of FISA, no district court has ever found that disclosure of those materials to the defense, the application and the order, is necessary to make an accurate determination of the legality of the surveillance, never. No defense lawyer, no defendant, has ever had the application and the order disclosed under FISA.

Coming up here I did a little research to see if there were any new FISA cases out there, and I came across the FISA order in the case of Lynn Stewart, she’s the lawyer in New York who’s been charged with providing material support to terrorists for disclosing something her client told her. And that case is the unbroken case in every single decision rendered under FISA. The district judge decided the suppression motion, and of course decided it in favor of the government, on an ex parte basis, denied disclosure to the defense. And in that case, the court says — this is September 15 of 2003, so we’re pretty current here — says the government represents that it is unaware of any court ever ordering disclosure rather than conducting en camera and ex parte review and the defendants cite no such case to the court. And of course, that court wasn’t about to be the first, so ex parte review. So the government gets the FISA order from the Foreign Intelligence Surveillance Court, that’s Judge Baker’s court, through ex parte, en camera procedure. The suppression motion, as well, is invariably determined ex parte and en camera. So are you beginning to maybe get an idea of why the government always wins?

Now the defendant can file a suppression motion, of course, under FISA. You can come into court after you’ve been indicted, and you can say, this was illegal. The surveillance under FISA was illegal. But of course you don’t have the application, the thing that the government files with the Foreign Intelligence Surveillance Court to explain why it’s lawful. You don’t have the order from the Foreign Intelligence Surveillance Court. So, of course, your arguments are utterly hypothetical. You don’t know. You don’t know how they did it. And I actually — believe it or not — I actually filed a motion to suppress once in a case involving FISA, and the government’s response was, it’s just speculation on the part of the defense. Well, of course, it was.

Even this case, the one that we’re here to talk about today, which is the most highly publicized FISA case in history, which isn’t saying a whole lot, reflects the secretive and ex parte nature of FISA proceedings. Of course, the actual targets of the surveillance in the case that we’re talking about here got no

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notice and no opportunity to participate at all in the proceedings before the Foreign Intelligence Surveillance Court or the Court of Review. And the ACLU and the NACDL, the defense lawyers group that I represented, we didn’t get a chance really to participate either. For example, there was an oral argument on September 8, 2002 before Judge Leavy and his colleagues. I mean, to call it an argument is sort of a joke. It was the government. I mean, there must have been ten government lawyers there, and they argued brilliantly. The transcript was finally made public. But there wasn’t anybody on the other side. It’s like one hand clapping. And of course the judges asked good questions and were extremely conscientious, but what kind of an argument is that? Have you ever been to an argument in a court where just one side argues and the other side doesn’t even get to participate? But that’s what happened.

Now, the way we got involved is word kind of seeped out last summer, I think largely through Congress, over the summer of 2002 that some remarkable thing had happened in front of the Foreign Intelligence Surveillance Court, that’s Judge Baker’s court, the remarkable thing being that the government didn’t get everything they wanted on this one occasion, and that the government was going to appeal to the Court of Review. Well that was big news. There was this ex parte oral argument before the Court of Review, but you know we began to talk among ourselves and thought maybe it would be a good thing if we filed an amicus brief. And so we did, and we didn’t get to argue orally, but we did get to present our views on the legal issues to the court. But then there was a kind of a little irony after this. The Court of Review, of course, came out differently than we would have hoped and we thought about we, the ACLU and the NACDL, trying to seek certiorari from the United States Supreme Court. We wanted the Supreme Court to take a look at this important Fourth Amendment issue that the Court of Review had decided, but there was a problem. The FISA statute provides for review by the Supreme Court, but only on petition of the United States. I mean, the people who drafted FISA never thought that maybe somebody other than the government might want to have something reviewed that the FISA Court of Review had done. So we moved to intervene before the Supreme Court, just for the purpose of filing a cert petition, and our motion was denied. So end of story. The Court of Review decided a very important Fourth Amendment issue. We were the stepchildren left out in the cold and couldn’t even seek review from the Supreme Court.

So the bottom line is, FISA proceedings invariably occur ex parte, both at the application stage and at the motion to suppress stage, and the government invariably wins. It always occurs in secret; the government always wins. I think there’s probably a connection between those two facts. Justice Frankfurter said 50 years ago something I like to quote, usually not to any effect, that “fairness can rarely be obtained by secret, one-sided determination of facts decisive of rights. No better instrument has been devised for arriving

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at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it.” For anybody here who’s a lawyer, that just seems like common sense. That’s the basic premise of the system that we work with. And in fact, the Supreme Court, even in the Fourth Amendment context, has said the same thing. In the Alderman case, Aldersman v. United States, which involved illegal wiretap surveillance, the Supreme Court refused to sanction ex parte procedures. In Franks v. Delaware, which is a famous Supreme Court Fourth Amendment case involving false statements in a search warrant affidavit, and what a person later moving to suppress has to do to challenge those statements. Again, the court criticized ex parte proceedings, not because any of the participants are dishonest or not doing their jobs, but because the way we get to the truth in our legal system is to have both sides getting a full chance to argue. For some reason, those principles, which to all of us I think seem fundamental so much so that we don’t even think about them in our normal practice, haven’t seeped their way into FISA jurisprudence.

I want to make three suggestions on how the system might work a little bit better. I’m going to make them quickly, because I don’t have much time. All of my suggestions focus on the motion to suppress part of the FISA process, not the application part which comes first, but the motion to suppress part. I think if the motion to suppress part were a bit more two-sided, that possibly the application process would be improved as well. The first part thing is that district courts that consider motions to suppress ought to take more seriously the issue of whether, under FISA, it is necessary to have the defendants participate, or the defense participate, to reach a fair determination of the legal issues. It cannot be that in 25 years of litigation there has never been a case where it was necessary to have the defense participate to fairly decide the legal issues. I think what’s happened is, and the Lynn Stewart decision kind of confirms this, is that this practice has grown up where judges never allow the defense access and as a result the next judge thinks, well it’s never happened before, why should I do it? And so it just never happens. I think if courts were to look at the legislative history of the statute and look at that provision more carefully and on a case-by-case basis, there would be more defense access to the underlying FISA materials.

The second thing is, that courts ought to take a pretty careful look at the due process implications of denying defendants — uniformly denying defendants — access to the underlying FISA application and FISA order when a motion to suppress has been filed. Under Supreme Court decisions, Matthews v. Eldridge in particular, there is a three-factor analysis for determining what process is due when a due process issue has been raised. There is the private interest that’s going to be affected by the official action. Here, we’re talking about Fourth Amendment rights, the right to privacy, the right not to have your home searched, your e-mail observed, your phone listened in on. A pretty important right. We’re talking about the risk of an erroneous

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deprivation of such interest through the procedures used and the value of additional procedures. Well here we’re talking about the fundamental question of the adversarial process, whether two sides clashing, offering competing views, is more likely to produce a fair, reasonable decision than just one side, like we had before in the oral argument before the Court of Review.

And then there’s the government’s interest, including the function involved and the fiscal and administrative burdens. And the government’s interest here, I’ll certainly say, is strong. The interest in national security is a strong one, but it doesn’t necessarily trump the other two and foreclose defense access to FISA materials.

And my third point is that courts ought to consider what’s called the Classified Information Procedures Act, also known as CIPA. We have FISA and CIPA, it’s sort of an alphabet soup, which was passed in 1980, a couple years after FISA, and is a way for classified information to be handled in criminal cases. And basically it provides fairly cumbersome procedures, but they’ve turned out to work in practice, by which the defense can be given access to classified information that is important in a criminal case. There is no reason at all why, when the defense, for example in the Wen Ho Lee case, I was one of the defense lawyers, we got access, Wen Ho Lee got access to what the government claimed were the crown jewels. I mean, they told us that that information could change the global strategic balance of power. Well if I can have access to that stuff, and here we are, the world’s still standing, there’s no reason on earth why I can’t have access under CIPA, under appropriate security procedures, to a FISA application and a FISA order. There’s just no reason why that won’t work. And I think if courts were to look at the FISA process through the prism of CIPA, they would quickly decide that there really is no reason why people like me who have security clearances and aren’t going to do anything crazy could have access to that and have an adversarial presentation of the FISA issues.

I’m going to close, because I know I’m over my time, with a prediction. Until the defense gets access to FISA materials through CIPA or through some other process, the government will continue to win every single FISA case. There will never be a defense victory until the defense gets access. There will never be a motion to suppress granted until the defense gets to argue on equal footing with the government. And I’ll also predict that the first time a court grants the defense access to a FISA application or FISA order or begins to do that, that’s when we’ll see motions to suppress start to be granted in FISA cases just like they are in normal wiretap cases, Title III cases, and just like they are in normal criminal cases. It’s not a surprise that in a game where only the government gets to play, the government always wins. Thanks.

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Bill Long We really do have an embarrassment of riches today, I think you would admit. And before we have an opportunity for questions, I’ve asked Professor Funk no more than five minutes, but to talk a little bit about his activity in the late 70’s in writing the Act. Professor Funk Thank you, Bill. I will be brief. I did want to confirm Mr. Gorder’s story that the FBI agent did come to the Attorney General and say here’s something for you to sign and he said what is it? And he said, is this legal? And he wasn’t wearing a fedora, the FBI agent, even they had enough sense not to wear those indoors in the 70’s. But then Attorney General Leavy turned to his Assistant Attorney General for the Office of Legal Counsel, Antonin Scalia, and said is this legal? And Antonin Scalia said, I don’t know. And he called me because I was the only person who had a clearance sufficient to look at the stuff. So that’s how it started.

And then this idea of why do they want this bill in the first place. Well, Judge Leavy’s explanation about the balance is very accurate. One thing that was left out between those who were worried about having the inherent authority found unconstitutional and those who were worried that it would be found constitutional was that at that time — this is 25 years ago, before PCs, before cell phones, before the breakup of ATT — ATT was starting to say we won’t do it for you any more. And if AT&T stopped cooperating, it was going to shut down most of what we were doing, and this was a critical issue. Lots of behind closed doors discussions about this.

And so it was actually in the White House, the counsel to the President, Phil Bukin, and the President himself, who came to the Attorney General and said we need to do something to get positive authority. And so Attorney General Leavy turned it around and said okay, good, we’ll take the ball here. Senator Kennedy was involved. And they said all right, they grabbed the staff attorney to draft the thing, and that was me. And the first thing I did was, I said I need a good acronym for the act. I mean, I don’t want this to just be the effective death penalty act or whatever it is. I want something you can refer to. So the Foreign Intelligence Surveillance Act, FISA, but I couldn’t control how people pronounced it. But it should be FISA, because it’s foreign ĭntelligence, it’s not foreign īntelligence. So I don’t know why they call it FISA. I couldn’t control that.

And I sat down and I did it through definitions. I defined all of these terms and said put all the real stuff in the definitions as was correctly pointed out. That’s where you should look for everything that’s substantive in the law. And then when we took it up to the hill, the parliamentarian and the legislative drafting people up there said where did you learn legislative drafting? And of course I’d never taken it, so I had never learned it and they were very critical of that, but that’s the way it came about.

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Now I want to say just the few things I’m going to say, that I agree with Judge Leavy that, just like a judge’s opinion speaks for itself, the Act should speak for itself along with the legislative history. You don’t really need to hear what the scrivener really meant or intended or knew at the time. But we were very interested to hear what Judge Leavy had to say about his opinion, so I’ll tell you what my knowledge of it was at the time. And it’s clear to me at that time, that is, at the time the bill was drafted and when it was passed, this was not to be used for law enforcement purposes as a primary means. It was always understood that it was incidental. If you incidentally picked up information, of course you could use it. And this didn’t mean that you couldn’t talk to prosecutors, but there was a wall. There was a wall between what we call the spooks, those are the people who are doing this stuff, and the law enforcement community, the Department of Justice, the Criminal Division, and parts of the FBI. There was a wall between those that pre-dated FISA. It existed. It had existed since at least the 40’s. And that had always been there. So that when you did the surveillance under the authority of the President’s constitutional, inherent authority, no one ever imagined you would then take the evidence gathered by that and take it to a court. One, there was some strong question whether it was constitutional, because it wasn’t just electronic surveillance. You were breaking into people’s houses to plant the bugs, and everybody sort of agreed that that was something that maybe you needed a warrant for. That was more problematic. There was the idea that usually these were ongoing surveillances. So even if you got information about a crime, you didn’t stop the surveillance. Title III, it ends, and then you prosecute the person. In intelligence, you may have information you may want to give to prosecutors, but you may want to keep that surveillance ongoing and therefore not stop it by having to tell somebody you’re doing it when you bring a prosecution.

And also this idea of counter-intelligence crimes. In terrorist activities, this is 25 years ago, there was no domestic international terrorism. We had domestic terrorists. We have domestic terrorists today. But the international terrorism then was the Baader-Meinhoff Gang, Black September, it was abroad, but some of their people came to the United States. We wanted to monitor them here in the United States. They weren’t violating any federal law, any law of the United States. They violated laws in Germany, they violated laws all over the world where they were acting, engaging in terrorist activities. But they weren’t violating our laws. And so it was never our intent to prosecute them. We gathered this information and gave it to the Germans and gave it to the Israelis and gave it to whoever because that’s what we were doing in counter- terrorism in those days. Counter-intelligence, counter-surveillance, we would turn agents, we would feed them false information. It was better to have a spy, better to have a spy in place that you knew about, who you knew exactly what they were reporting, than to arrest that person, put him in jail, and then that person would be replaced by the foreign intelligence service with somebody else who you might not know what they were doing.

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And so this was part of the game, and long before FISA we had a wall. And so, when FISA was enacted, the wall was part of the background principles of the way we were operating. FISA was supposed to provide statutory authorization and a warrant from a court for that which the President had done under his inherent foreign intelligence authority which no one had ever imagined you could just take to a court and use that for law enforcement purposes. Incidental, yes, but for the purpose of gathering it, no. That wasn’t, that wasn’t what was involved.

There’s two great ironies about this law. One is that in the House Intelligence Committee we had a number of people testify about this law, and some were supportive but critical a little bit, and so forth. We only had three people who testified who were absolutely, adamantly opposed to this law. One person who made an impassioned speech about how this law, and especially the court, the special court, was unconstitutional. That person was Larry Silverman, who was on the court and may have had something to do with the opinion that the court did. So that’s one of the great ironies here, is that he thought that court was unconstitutional, but you can change your mind over time.

The other great irony is that the reason that people like Judge Leavy can read this law and think, given the way the definitions are crafted, that it had originally had a belief that you could use it intentionally for law enforcement purposes was it keeps referring to people involved or maybe involved or closely related to crimes. And so, therefore, it seemed like the idea that you would use this as a law enforcement tool may have been part of the original idea. It’s just the opposite, really. The irony is it was the ACLU who enforced on the administration the inclusion of all this criminal stuff because they wanted to limit the amount of surveillance. The administration in our original draft of the bill — there was nothing about illegal stuff in there. It was all about just gathering intelligence, counter-intelligence, foreign intelligence, international terrorism intelligence, nothing about violating the law. We didn’t care if they were violating law. It was irrelevant to us. All right? And it was the ACLU on the other side who, to protect people’s liberties, wanted to get that in there. And so that’s then what provides the evidence that enables you to broaden it. So that’s the other great irony of the law Thank you.

Bill Long Ironies on ironies. And then, before a question or two, Jim, do you want to say a word, just greetings from Washington, D.C.? The federal government’s man on FISA before the court who prepares all of these orders, is Mr. Jim Baker.

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Jim Baker Thank you. Thanks very much for this opportunity. I just want to just briefly say hello. I do head the Office of Intelligence Policy and Review, which consists of about 65 people, 35 or so attorneys, and it’s 9:00 o’clock in Washington and I can guarantee you that people are still at the office and working hard and, from my perspective, they’re working hard for you. They’re working hard to protect your security, they’re working hard to protect the national security of the United States, and they’re working hard to protect your constitutional rights from inappropriate intrusions. And just to comment directly on some of the things that John said, because I have only a couple of moments, I mean, I think — John commented about the numbers and so on and so forth, and I think I’ve supervised or been involved in the preparation of about 5,000 or so of the FISA applications, so I’m not quite up the slope of Everest yet, but getting there.

I mean, I think we’re successful. We, the government, are successful in the context of FISA. We are also successful in the context of Title III, the criminal proceedings, and in Rule 41 search warrants, also criminal search warrants, both of which are disclosed to the defendants in criminal proceedings. I am unaware of, quite frankly, Title III applications that have been denied, and I think we were talking about it earlier today, I’m really unaware of applications for search warrants in the criminal context that get denied either. And why is that? It’s because the government does its job. We do what we are supposed to do. We comply with the law. We adhere to the law. We are conscientious in what we do. We are conscientious in our work, and I think that, in large measure, is why we are successful. It’s not to say Judge Lamberth, who was referenced earlier, who was the former presiding judge of the FISA court, has spoken publicly a couple of times, and he has said the court is not a rubber stamp. It asks questions. It asks for changes. It is involved in the process. It gets to the nitty gritty of what’s going on with a case, and then, when it’s satisfied, it signs it. And I think that it’s not just an anomaly or some fluke that you have the May 17th opinion that Judge Baker and the rest of the court issued. They issued it because they obviously felt strongly about that particular issue, but it is, it should be clear evidence that the FISA court is independent. It reviews what we present independently and it makes up its own mind about what the government is doing. So I really wanted to make those couple of comments.

My final comment before I sit down really will be that if you find these issues interesting, OIPR is hiring, and we have slots available and we welcome people who are interested in both saving the country and having a country that’s worth saving. So thank you very much.

John Stevens Thank you, Jim. Thank you, Bill. It is just about 6:00 o’clock, but we do, we will stay for a while and we do want to have an opportunity to raise some questions with the many issues that have been probed, and so I’d like to have an opportunity for a few people to ask a question at this point to any of the

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panelists that have been — yes, sir. Question Mr. Gorder, isn’t it a serious concern that a defendant isn’t able to review the order or the request that resulted in information that is the subject of the motion to suppress? Doesn’t that in part deny that defendant the right to confront the accuser?

Mr. Gorder Well, I know Mr. Klein thinks so. You have to realize that the defendant in a case like that is going to get access to all the evidence that’s going to be used against him. In other words, if there are 500 phone conversations that are intercepted that show that he was a Russian spy that we’re going to use to prosecute him, he is going to get all that evidence. He is going to confront the evidence against him. The question is whether or not he should be entitled to review the applications that have been filed that got the court order. And you know, there are a lot of good reasons that he should not. And the reason primarily is national security. I mean, this is an area where we have to both protect our national security and protect the rights of criminal defendants. He gets the evidence that’s used against him. He also gets an independent federal district court judge. We’ve already had one independent federal district court judge look at the application and say it was good enough and approved it. But the judge who is trying his case will also have the opportunity to look at that and that judge does not work for the President of the United States. He is an independent third party. And we have to trust our judges to take a look at it and decide whether it was appropriate or not. And I think generally the defendant knows what the, you know, what the charges are, that I’m a Russian spy, for example, and present arguments to the district judge by saying, for example, you know, I’ve looked at all the evidence the government’s obtained and there’s nothing in there that shows that I’m a Russian spy, and so they couldn’t have gotten probable cause to show that I’m an agent of a foreign power. Well, the district judge is perfectly capable of taking that argument, looking at the application, and making a decision. And you know, I’ll just say, that in some of these applications you’re going to find the most sensitive intelligence information that the United States possesses, so it’s something we have to balance.

Question I guess I would like to kind of follow up with a question. I mean, many times the FISA court is making a probable cause determination, and if the agents that provided the information ultimately to the FISA court acted in bad faith, lied, exaggerated, left out important information that would have impacted the probable cause determination, it seems to me that there will never be a way of challenging that or bringing that to the court’s attention. And so, I sort of balance that on the one side, and then what the speaker said about the defense attorney being able to gather, to have this information, you know, with proper security clearance and keep it confidential outside the public view, it seems to me that’s ultimately the problem, is they could never be able to determine whether the judge would have granted the FISA application had he had all the information without the defense counsel challenging that, he would never be

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able to figure that out.

Mr. Gorder Well, without getting into too long a discussion, we who participate in the criminal law and prosecution and defense processes get very used to the exclusionary rule. In other words, that evidence of a crime cannot be used, in other words to find the truth, because we want to deter illegal police action. I mean, that’s the basis of the exclusionary rule. You’ve got to realize that in these kinds of situations, when you’re talking about, okay, we’re not going to let the jury hear the truth, we’re not going to let this evidence be brought to the court, what’s the purpose of that, when the agents who are involved in the foreign intelligence [tape cut off]

?? — is that the FISA court and the Department of Justice were following. Can you take away the law? I think you may have a different ballgame. Bill Long Okay, a couple more questions. Leave us if you need to along the way, but we’ll continue for a couple more questions before we finish. Let’s have one more and then we’ll call it quits and we can talk more informally. Professor Funk?

Professor Funk I have a question for Judge Leavy. The review opinion, the review court’s opinion, spent a lot of time trying to assess what the original meaning of FISA was, which is what I discussed and what largely Judge Baker talked about. Rather than talking about after the amendment of Patriot Act, which at least in my view ended the discussion. It seems to me pretty clear that with the Patriot Act amendment, you can do it for law enforcement purposes. That’s what Congress said. And why, I mean why so much consideration about the original meaning?

Judge Leavy Well, I don’t want to speak for my colleagues, but you will recall that the government made the argument and we pointed out that it made the argument for the first, that the dichotomy was false. And then you’ll recall the opinion points out that after the government had taken notice of what the courts were doing by way of the dichotomy went back to Congress and asked for an amendment. The government was arguing that the amendment wasn’t necessary, and then you will notice that I think at one point the opinion says, the opinion that we agreed with the government’s assertion but because Congress went ahead and made the changes on the language surrounding the purpose, that that made it a fact that the dichotomy was real and that Congress by acting made that which the government was a false dichotomy, a true dichotomy. And so, and that is one more of the ironies in all of it, see? And we even, you may recall, said that the Patriot Act muddled the waters. Now I hope that’s an answer to your question.

Bill Long I think irony is a wonderful note on which to conclude tonight. And I wish to thank the panelists for a wonderful program and insightful. There are some

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refreshments and be free to mingle for as long as you want. Thank you very much.

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