The Court of Appeals for the Second Circuit recently held that Section 215 of the Patriot Act – the section currently used to justify the bulk collection of phone records – does not authorize the bulk collection of phone records. Rather than address the more difficult Constitutional questions (which I have discussed elsewhere), they simply held that the statute telling the NSA what they can do doesn’t let them do that. As Orin Kerr noted, this ruling is arguably more symbolic than substantive, as Section 215 is set to sunset in just a couple weeks. It would seem that the Second Circuit is simply trying to tell Congress, “If you want to continue these surveillance programs, say so explicitly.” Yet the Second Circuit had to jump through quite a few procedural hoops to make that statement, and I worry that in reaching the merits of the case the Second Circuit created an unworkable framework for foreign intelligence going forward.
A Tale of Two Courts
To begin: some jurisdiction. As I’ve discussed in the other posts, jurisdiction is based heavily upon land, so most federal courts have clear territorial boundaries delineating where their rulings apply. For district courts, this will be a segment of the state they occupy (occasionally it is the entire state). For the federal courts of appeal (which I’ll refer to as “circuit courts”), these territorial boundaries encompass several states, but more specifically they cover the territory of the specific district courts from which that circuit court hears appeals (you can see the exact outline here). The Ninth Circuit doesn’t hear appeals from Virginia, and Ninth Circuit opinions aren’t binding in Virginia district courts, all based on the courts’ established territory. Only the Supreme Court is binding everywhere.
Yet not all courts operate on this land based system: some courts are established to hear specific kinds of cases. While there are several of these courts, the important one for this discussion is the Foreign Intelligence Surveillance Court (FISC), which is the special court created by Congress in the Foreign Intelligence Surveillance Act (FISA) to manage the foreign intelligence activities set out in FISA. Basically, the FISC is the court that issues warrants for government spying. It is also a secret court, which we (the public) know little about, and it operates ex parte, meaning only the government appears before it. (This makes sense, as asking suspected terrorists to come explain why they shouldn’t be surveilled sounds like a Monty Python sketch.) The FISC is the court that initially approved bulk collection under Section 215, and while its decisions may be challenged, these challenges are supposed to come from the telecom companies that will be facilitating the surveillance. Appeals from the FISC are heard by the Foreign Intelligence Surveillance Court of Review (FISCR), but since the government is the only party to the FISC, the only appeals heard by the FISCR are for denials of warrants.
ACLU v. Clapper
This brings me to the Second Circuit’s opinion. As is often the case with national security lawsuits, the majority of the court’s time is spent determining whether it even has the authority to hear the case. There are numerous barriers to judicial oversight for national security issues – the plaintiff’s standing, preemption by the FISC, jurisdiction, state secrets – and the court must address several of these issues before even reaching Section 215, the thing people actually care about. (For those looking for a more in depth discussion of the opinion, I’d start here.) While I think each piece of the opinion is reasonable, I ultimately don’t think the Second Circuit should have ruled on the question of statutory interpretation for Section 215, and instead they should have adopted the FISC’s interpretation as a matter of deference.
Deference is a judicial practice wherein judges adopt the legal interpretation of a source that would not traditionally be binding. This is not a Supreme Court opinion, which lower courts have to follow; it is something that courts should follow, provided it is not clearly unreasonable. Much like standing and preemption, deference is one of those concepts that is frustrating to laypersons but of high import to lawyers, and particularly judges, both for high minded reasons (we defer to parties that are more easily held accountable by the public, or who have specialized knowledge of the area, or out of respect for the separation of powers and federalism) and for practical reasons (less work for judges). So deference springs up in numerous areas, from deference to the executive in matters of foreign affairs and national security, to Supreme Court deference to circuit court interpretations of state laws in that circuit’s jurisdiction, to deference to government agency interpretations of laws they are tasked to administer.
It is that third option, administrative deference, upon which I want to focus. The basic idea here is that when a statute is ambiguous, courts should defer to the relevant agency’s interpretation of the statute they are tasked with administering. The Department of Health and Human Services for HIPAA; the EPA for the Clean Air Act; etc. This is known as “Chevron deference” (referring to Chevron v. NRDC), and it is among the most important legal concepts non-lawyers have never heard of. The goal of Chevron deference is to have the law reflect the intent of Congress, and it is thought that Congress meant to empower these agencies with the authority to determine what ambiguous statutory language means. Therefore, it makes sense that the agency interpretation is given deference rather than having judges impose their own interpretations. While Chevron deference is complicated and highly litigated, I think its broad concepts are useful when analyzing the statutory scheme created in FISA.
What does the FISC say?
Now that I’ve gotten through that particularly lengthy backdrop, I want to talk about deference with regard to the FISC. Although I discussed Chevron deference specifically, it really can’t be said to apply to Section 215, because the FISC is not a government agency. The FISC is a court, and FISC opinions are not binding on the Second Circuit, or indeed in any circuit. But maybe they should be. Although the FISC is not a government agency, it is in many ways taking on the administration of a specific statute, and it would make sense that its understanding of that statute should be treated with special weight. If Congress enacted FISA with the FISC to adjudicate, it would make sense that it was the intent of Congress to delegate to the FISC the power to interpret FISA. So shouldn’t that delegation be given deference by the other circuits?
This is a fairly novel argument (as far as I’m aware), and as such, precedent for it is lacking. There are certainly other areas where Congress created a specific court to adjudicate specific issues, but these normally are issues of jurisdiction over particular kinds of claims, and not as administration of a particular statute. For instance the Court of Appeals for the Federal Circuit handles all patent and trademark application appeals (among other things), so these cases would never reach another court and thus never require deference. When courts other than the Federal Circuit hear claims traditionally reserved for the Federal Circuit (such as malpractice suits against attorneys handling patent applications) the other court steps into the shoes of the Federal Circuit for the relevant issues. This isn’t deference, as the other court isn’t making that determination on its own; rather it is asking what the Federal Circuit would have done in those circumstances (e.g. would the patent application have resolved differently if the attorney had done xyz?)
There are other areas where Congress has established non-traditional Article III Courts, such as the US Alien Terrorist Removal Court and the US Court of International Trade, but these courts too have not been addressed in the context of interpretive deference. The Alien Terrorist Removal Court, although structurally similar to the FISC, has never actually been utilized, so it is of little precedential worth, whereas the Court of International Trade is not tied to a specific statute, and instead has exclusive jurisdiction over specific areas, like embargoes. Unlike the FISC, which was created by a specific statute solely to adjudicate specific claims in that statute, the Court of International Trade has broader jurisdiction over certain trade matters, and deference to its interpretation of specific statutory language makes little sense unless that language was directed specifically for it to adjudicate.
Deference or Preemption?
I suspect that the primary response to this line of argument, (apart from the secrecy point, which I’ll get to), is that the Second Circuit essentially dealt with this issue in its discussion of preemption and jurisdiction. The Second Circuit devoted a good portion of the opinion to whether the creation of the FISC precluded bringing claims in other courts, and concluded that since FISA did not expressly limit jurisdiction to the FISC, it did not preempt bringing suit in a separate court. While this line of argument is similar to the one for deference, it is conceptually distinct. Preemption is essentially a question of where the case will be heard; deference is a question of who determines what the law means. So it is not unthinkable the citizens could mount challenges to FISA in regular federal district courts, but that those district courts must defer to the interpretation of the FISC.
I should emphasize that the framework I am suggesting would not preclude the Second Circuit from ruling on the constitutionality of Section 215, but rather it would preclude the circuits from each crafting their own interpretation of what Section 215 means. The Second Circuit, adopting the FISC’s interpretation (that Section 215 justifies bulk collection), could still rule that such an interpretation is in violation of the 4th Amendment, and therefore unconstitutional. The question of interpretation is ultimately asking what Congress intended, and the creation of the FISC suggests that Congress intended the FISC to be the interpreter in that regard. The question of constitutionality asks whether what Congress intended comports with the Constitution, a question that every court is empowered to ask.
The final point that needs to be addressed is the question of secrecy. As I mentioned above, the FISC and FISCR are secret courts, and very few of their opinions are publicly available. As such, a requirement of deference is difficult, because there are no opinions for the other courts to defer to. Rather, the Courts will be forced to defer to conclusions (e.g. that Section 215 allows bulk collection) without any chance to review the analysis. The usual reasonableness analysis for deference would either shift to a “no-reasonable Court” standard (which is extremely problematic) or would be removed altogether. The latter is moving into the territory of pure choice of law, which ultimately may be necessary.
Personally, I think such a system makes more sense. While I’ve been focusing on the theory, the practical effect of the Second Circuit’s decision is that the FISC is subject to a bizarre framework where every circuit is theoretically binding, at least with regard to interpretations of FISA. The problem goes back to the discussion of land: although the circuits all are bounded by geography, the FISC is not. Each of the circuits can craft a unique interpretation Section 215, applicable to their jurisdiction, and the FISC is forced to wrangle with all of them. Although not directly bound, the FISC’s opinions would be meaningless unless they comported with each circuit, as otherwise the government would be barred from acting. And while distinctions could theoretically be made by the location of the target (surveillance targets located in the Ninth Circuit would be subject to Ninth Circuit interpretations), this is of little use considering the primary target of foreign intelligence surveillance is likely to be overseas, and would nonetheless be difficult to pin down to a specific jurisdiction. While it is ultimately the job of the Supreme Court to resolve these types of circuit disputes, regular district courts are not subject to conflicting circuit court opinions while the Supreme Court deliberates.
I must admit that this entire area is a mess. The fundamental problem is that Congress did not intend for the targets of surveillance under FISA to ever become aware of the surveillance, and as such they would have no grounds to challenge it. But Congress did not expressly abrogate the right of the individual to challenge the statute, and the judiciary is reluctant to deny this right unless Congress explicitly says as much. So with the revelation of the NSA’s bulk collection, effectively every citizen was made aware that they were subjected to surveillance, which would arguably give rise to a right to challenge the statute. Basically, Congress didn’t foresee an Edward Snowden, and the statute is not well written to deal with that contingency.
The solution to all of these problems is nonetheless that Congress needs to clarify FISA. I’ve focused on deference, because it is relatively unexplored, but this problem could be rectified if Congress clarified the questions of jurisdiction, preemption, and standing. Even if Section 215 expires, it would still be worthwhile to clarify how the FISC should interact with other courts, if at all, as much of FISA will still be on the books. Yet given the current legislative environment, relying on Congress to clarify such a contested issue might prove to be fruitless, and courts will need to craft a workable framework from the legislation that we currently have.
I apologize for this post being a bit longer than usual, but the complexity of the topic required a more in depth analysis, if only to help me properly frame the issues for myself. Indeed although I only made a passing reference to choice of law, I am still wondering if that might be a better framework into which to file this issue. But I digress. Until next time.