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My Analysis of the Oregon FISA Decision:
Yesterday, Judge Aiken of the U.S. District Court in Oregon handed down a decision that strikes down Foreign Intelligence Surveillance Act's provisions for granting warrants. In this post, I wanted to explain the issue in the case and the decision's reasoning, and then I wanted to offer some commentary on the decision. My tentative bottom line: I found Judge Aiken's decision unpersuasive on the question of Article III standing. On the merits of the Fourth Amendment issue, I think the law is just too murky to call this one way or the other: Judge Aiken's result appears plausible, although so does the contrary result embraced in 2002 by the Foreign Intelligence Court of Review.

1. Statutory Background

  First, some background. The Foreign Intelligence Surveillance Act is the law the government uses to get warrants to monitor suspects terrorists and spies inside the United States. Before the Patriot Act, the government could obtain a FISA warrant to search or monitor someone based on a probable cause showing that the person "is a foreign power or an agent of a foreign power and that the primary purpose of the surveillance is to obtain foreign intelligence information." The basic idea was that the government had to believe the person was a spy or terrorist (an agent of a foreign power) and that the real reason behind the evidence collection had to be to to protect national security by having the information (that is, so the government can know what the spies and terrorists are doing).

  The Patriot Act changed that standard, and it's those changes that are the issue in the new case. The Patriot Act changed the language so that the standard for obtaining a evidence is probable cause showing that the person "is a foreign power or an agent of a foreign power and that a significant purpose of the surveillance is to obtain foreign intelligence information." The difference is subtle: the change from "the primary" to "a significant."

  Why the change? The basic idea is to allow the government can get a warrant to monitor spies and terrorists without knowing ahead of time whether it wants to just collect information and keep it or whether it wants to bring a criminal prosecution. Before the Patriot Act, the government had to choose at the beginning whether to take the criminal law route with traditional warrants (based on probable cause that the search would reveal evidence of a crime) or whether to take the FISA route and collect evidence to learn of terrorist plans without thinking about a possible criminal prosecution.

  After the Patriot Act, the government can get a FISA warrant in a terrorism investigation and keep open whether it wants to treat the case as a crimal case or an intelligence case. The intelligence information can go to the intelligence agencies, and the evidence of crime can go to the criminal investigators.

  The Fourth Amendment issue raised in the Mayfield case is whether a warrant issued under the amended Patriot Act standard is good enough for Fourth Amendment purposes or whether it is too "loose" a standard to make FISA searches constitutionally reasonable.

2. The Mayfield Case

  This case is a civil lawsuit by Brandon Mayfield, an Oregon attorney who was surveilled and lated arrested and detained for two weeks as part of an investigation into the 2004 Madrid train bombings. It turned out that Mayfield had nothing whatsoever to do with the bombings, and he was released. After he was released, he sued the government on a range of claims. The only issue left at this stage of the game is Mayfield's Fourth Amendment claim.

  Mayfield's Fourth Amendment claim is somewhat unusual. He does not argue that the government violated FISA when it obtained orders to monitor him and search his home. Nor does he argued that his particular Fourth Amendment rights were violated in an as applied manner, the usual argument in Fourth Amendment cases. Rather, he argues that the Patriot Act amendments to the Foreign Intelligence Surveillance Act made FISA warrants constitutionally inadequate as facial matter, such that the FISA warrants that were used to authorize surveillance of him were unlawful. This particular opinion concerns Mayfield's request for declaratory judgment that the Patriot Act amendments to FISA are constitutionally inadequate under the Fourth Amendment.

  Judge Aiken granted the request, and struck down what is really the heart of FISA — the provisions allowing the FISA court to issue search warrants both for physical searches and for electronic surveillance. There were two main issues in the opinion: First, did Mayfield have standing under Article III to bring the case, and second, did the FISA law actually violate the Fourth Amendment.

  a) Standing

  Judge Aiken ruled that Mayfield did have standing to challenge the facial constitutionality of FISA because the government retained derivative evidence from the wiretapping against him. That is, the government still had in its files records of items that had been collected from him. According to Judge Aiken, this continuing possession of information in their files established an ongoing injury in fact. Further, the injury in fact would be cured if Mayfield won the case, Judge Aiken ruled: "it is reasonable to assume that [if Mayfield wins,] the Executive Branch of the government will act lawfully and make all reasonable efforts to destroy the derivative materials when a final declaration of the unconstitutionality of the challenged provisions is issued." According to Judge Aiken, the government's possession of derivative evidence and the possibility they would be destroyed if Mayfield won conferred Article III standing.

  b) The Fourth Amendment

  Judge Aiken then reaches the merits, and concludes that the Fourth Amendment does not permit the government to obtain warrants based on probable cause to believe that a person is an agent of a foreign power if foreign intelligence collection is only a significant purpose of the monitoring. This standard lets the government search the homes and listen in on the calls of terrorist suspects and spies when the government is planning on bringing a criminal prosecution in the case. But that's not good enough, Judge Aiken concludes: If the government is really approaching an investigation of a terrorist suspect or spy with an eye to charging them with a crime, they need to follow the traditional criminal law standard for a warrant. That is, they need to obtain a warrant under the standard of probable cause to believe a crime was committed, not probable cause to believe the person is a terrorist or a spy.

  Judge Aiken notes that her conclusion is contrary to the legal ruling of the Foreign Intelligence Surveillance Court of Review decision in In Re Sealed Case. She concludes that In re Sealed Case is incorrect, and that the FISCR's analysis is unpersuasive. Because the current version of FISA adopts the Patriot Act standard, the provisions of FISA that authorize FISA warrants to be issued are invalid.
cboldt (mail):
Thanks for the extended analysis and commentary.
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As far as being "too murky to call," judges are in the position of having to make calls, one way or another.
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Standing *and state secret) have so far been very effective tools for disposing of cases without ruling on the underlying statute. I'm looking forward to the 9th Circuit's treatment of the case to see whether they dispose of it as you opine they are apt to (depending on the panel, of course)
9.27.2007 1:13pm
OrinKerr:
cbolt,

No one could possibly disagree that "judges are in the position of having to make calls, one way or the other." You will notice that I am not a judge, however, so I assumed that did not apply to me.
9.27.2007 1:17pm
cboldt (mail):
I did notice that you didn't take a side on the 4th amendment conclusion.
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I haven't taken the time to compose a comparative analysis between Judge Silberman's and Judge Aiken's analyses. But I do like the luxury of having competing arguments, and the one expressed in this case is one I hadn't seen before.
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I've sensed a bit of an issue where a no-suspicion FISA snoop bootstraps into suspicion of criminal activity, but don't have a clear solution in mind.
9.27.2007 1:26pm
frankcross (mail):
I think standing law is very screwed up, but I don't think your redressability argument can be right under the 4th Amendment and maybe not injury in fact. Suppose there is an illegal seizure of a person, later released. Does that eliminate standing to challenge the seizure under the 4th Amendment. There's no redressability here (can't undo the past seizure) and perhaps no remaining injury in fact. Yet don't you think a court would have standing?
9.27.2007 1:32pm
AF:
I'm not a standing expert, but I don't understand why that could be a continuing injury in fact: what is the "concrete" and "particularized" injury to Mayfield if somewhere there is a file that has information about him?

A file on a particular individual certainly seems to me to be "particularized." And it also seems to me to "concrete" enough for Article Three purposes. Imagine a statute that gave individuals the right to sue to have the government destroy illegally obtained materials about them. Would this statute be unconstitutional under Article III? If not, then plaintiffs have Article III standing. Whether they are entitled to that remedy under the Fourth Amendment is a merits question, not a standing question.
9.27.2007 1:32pm
AF:
frankcross -- the difference here is that plaintiffs have already settled their claims for past injuries.
9.27.2007 1:34pm
Raffi (mail):
Maybe I'm misunderstanding the Lujan/cure question, but isn't one reading of the judge's view something like "it is reasonable to assume that [if Mayfield wins,][and I order the government to destroy the materials as the remedy, which I believe to be the appropriate remedy for this injury the Executive Branch of the government will act lawfully and make all reasonable efforts to destroy the derivative materials when a final declaration of the unconstitutionality of the challenged provisions is issued"

Based on the rest of your discussion I still come out on your side on standing, but it strikes me that the judge's sentence may have been shorthand.
9.27.2007 1:43pm
OrinKerr:
AF,

Re your first comment, 12:32, I don't follow. Redressability requires a likelihood of actual relief, right? The fact that it would be constitutional to have relief if a statute existed that required it doesn't seem to make it likely here.

Re your second comment, 12:34, that is correct.
9.27.2007 1:45pm
M. Lederman (mail):
Terrific and helpful summary, Orin. Thanks.

On the merits, you write this: "I should say that as a matter of policy, I think the Patriot Act amendment to FISA is a good idea. If the government can establish probable cause to believe someone is a terrorist or a spy possessing foreign intelligence information, that should be enough to monitor them; allowing the government to then use the evidence to prosecute the terrorist or spy in a criminal case seems sensible to me."

Perhaps that's right. And I imagine many people would agree (perhaps even five guys currently in robes). But this is basically taking issue, isn't it, with the unanimous opinion of the Court in Keith. There, even if the government were not going to use the evidence used for criminal prosecution, but only for domestic "security" purposes, heightened Fourth Amendment protections (going well beyond FISA standards, although perhaps not as high as criminal-law requirements) would apply.

You've only changed one variable from Keith: Now, instead of showing probable cause that the U.S. person is a terrorist, the government shows probable cause that the suspect is an agent of a foreign terrorist -- or, for that matter, of any other foreign power).

But why should that "foreigness" showing make such an enormous difference in what the constitutional minima should be between two cases, both of which involve searches here in the U.S. of U.S. persons? After all, the wholly domestic terrorist (Tim McVeigh) is more dangerous than someone who happens to be in cahoots with, say, the Nepalese government (and as to whom no dangerousness showing needs to be made at all).

So, even if there were no prospect of criminal prosecution, it's not entirely clear why this case should be that much different from Keith. Good ol' Justice Powell was quite to the point when he wrote:

Official surveillance, whether its purpose be criminal investigation or ongoing intelligence gathering, risks infringement of constitutionally protected privacy of speech. Security surveillances are especially sensitive because of the inherent vagueness of the domestic security concept, the necessarily broad and continuing nature of intelligence gathering, and the temptation to utilize such surveillances to oversee political dissent.

What part of that rationale, exactly, is different in this case than in the case of the wholly domestic terrorist -- that is to say, of the bombers being investigated in Keith itself?

And then we add to the mix the heightened constitutional concerns when the possibility of prosecution is involved . . .
9.27.2007 2:05pm
Oren (mail):

Whether they are entitled to that remedy under the Fourth Amendment is a merits question, not a standing question.


It's fairly clear that the government does not want the courts to get the merits.
9.27.2007 2:05pm
Joshua Holmes (mail) (www):
IANASE, but if there is a class of people whose rights could be endangered before they could get to court, the court will allow the person to stand in place of the class. The most famous case is Roe: pregnancies end in 9 months, while court cases do not. Without standing, no woman could sue to challenge anti-abortion laws, since the pregnancy would end before the court appeals do, and there would no longer be an injury in fact.

I don't think Judge Aiken or Mayfield made this particular argument, but it applies. The government could run all sorts of surveillance in violation of the Constitution, yet simply destroy its records whenever anyone found out and challenged it. So, the records would be destroyed before the case was exhausted, the injury-in-fact would disappear, and the government could go right back to using that method. So a standing-by-class could be appropriate here.

Obviously, there's a better case for standing where the government follows the FISA provision and the person is convicted. That person would have a more obvious injury-in-fact - Gitmo. But the standing test doesn't ask if there are better supplicants, just whether this one passes. And I think he does.
9.27.2007 2:06pm
Bob from Ohio (mail):
The District Judge's opinion is interesting but I am guessing the Supreme Court will eventually make its own mind up. The opinion is really just another amicus brief.
9.27.2007 2:11pm
AF:
Orin: Right, my comment above went only to the existence of a concrete and particularized injury, not to redressability. I misspoke by extending it to standing in general. But since you said there was no injury as well as no redressability, I would be interested in your response to that point.

I agree that there are questions about redressability. But when there is a concrete and particulary injury, redressability does not require that that the injury be redressed in full. Rather, the current injury must be "abated" and/or future injuries deterred. Laidlaw. Would it "abate" the injury caused by the government's possession of illegally obtained evidence to declare that evidence illegal? That is not meant as a rhetorical question. If a declaratory judgment would have absolutely no effect on what the government could do with the derivative evidence, I agree the injury is not redressable and there is no standing.
9.27.2007 2:13pm
Mark Field (mail):

Indeed, there is an apparent irony in this entire topic: Here the government actually wants to use the criminal court system in terrorism cases, which is usually seen among civil libertarians as a positive thing. Forcing the government to conduct monitoring entirely outside the criminal court system seems unnecessary and unwise to me.


I'm not following here. I guess if we abolished the 4th A altogether, the government would be much more willing to use the criminal court system. But that wouldn't be a positive thing for civil libertarians. What civil libertarians want requires a two-fold protection: (1) the government MUST use the criminal court system; and (2) the government must abide by the rules of that system.*

Weakening either prong has the effect of weakening the safeguards the 4th A was intended to provide.

*I'm only addressing situations like the Mayfield case in making this point. It's clear that government power is at its weakest when the search involves an American citizen and criminal proceedings. A different standard might be applied in cases involving furriners and "pure" intelligence gathering.
9.27.2007 2:14pm
OrinKerr:
Marty,

I disagree. To the Nixon Administration, "domestic security" was another word for "crime by people with radical politics." I think the switch to agents of foreign powers is a very important switch; I see spies and terrorists working with international terrorism groups as different from common criminals with radical politics. Plus, we're assuming there is a warrant requirement at all, which is unclear.
9.27.2007 2:32pm
Cameron (mail):
Regarding the standing issue:
Because I have misgivings about the FISA standard as modified by the Patriot Act, I really wanted to buy the judge's standing argument; indeed, this situation provides an ideal test-case scenario for my point of view, since the evidence is pretty strong that the investigation of Mayfield was, at best, problematic and, at worst, entirely corrupt. That said, like Prof. Kerr, I simply wasn't persuaded. Even if all minds agreed that there is an ongoing injury in the case, I think Prof. Kerr's "human computer" example demonstrates that some privacy violations are not subject to an "in-kind" sort of remedy, and the fact that no apparatus exists to guarantee the one described by Judge Aiken further undercuts her arguments. (The plaintiffs did not, apparently, ask for a court order requiring the return or destruction of the material collected during the period of the Mayfield's surveillance--I don't know enough to know whether it would have mattered or would have been within Judge Aiken's discretion to grant it, but it might have made the redressability element more credible.)

Regarding the Fourth Amendment issue:
Color me the tin-foil type: while the element of "probable cause" is present for both standard warrants and warrants under FISA, I lack confidence that the meaning of "probable cause" is not altered by the context in which it is used. That said, I think that the 9th will reverse on standing, SCOTUS will deny cert, and we'll have to wait for someone less savory than Mr. Mayfield, i.e., someone awaiting trial or appealing conviction on the basis of evidence turned up under a FISA warrant, to contest the issue. And I imagine my policy point of view will fail to carry the day in such a contest. It will be interesting to see how this one fares the appeals process nonetheless.
9.27.2007 2:33pm
Bryan DB:
Orin,
I would agree with your standing analysis but for the existence of "capable of repetition yet evading review." As you know, that doctrine promotes standing in certain cases. Here, the doctrine might not (but I'm not sure) apply if Mayfield had challenged the statute on as-applied grounds; if he got a full remedy, there would be no need to address the underlying problems with the statute.

However, because Mayfield challenged the statute facially, he has a more solid claim to standing to remedy possible future Constitutional violations against himself or others. Superior Tire v McCorkle phrased the "evading review" test as: "the existence of an immediate and definite governmental action or policy that has adversely affected and continues to affect a present interest."

I would think that the "immediate and definite governmental policy" is the lowered cause requirement as embodied in the statute. The "has adversely affected" is self-evident. The "continues to affect a present interest" is satisfied by Mayfield's (and others') interest in maintaining their privacy in the face of possibly unconstitutional state action.
9.27.2007 2:36pm
M. Lederman (mail):
Oh, so Keith was a special rule for the Nixon Administration -- a rule that applied there even though they were investigating folks who were allegedly plotting to blow up government buildings in Ann Arbor, and that shouldn't apply here because the Bush Administration is so much more careful about targeting only the actual bad guys, and not, say, discriminating against Muslims?

OK, that's a fine rule-of-law reading of the precedent.

But in that case, I don't think Mayfield is quite the case in which the government wants to be pressing such an understanding of the limits of Keith.
9.27.2007 2:38pm
MacGuffin:
No one could possibly disagree that "judges are in the position of having to make calls, one way or the other." You will notice that I am not a judge, however, so I assumed that did not apply to me.

Fair enough, but perhaps I can address jurisprudential questions to a law professor disinclined to opine on the merits of the Fourth Amendment issue other than to pronounce the law just too murky to call this one way or the other.

Assuming arguendo that Judge Aiken ruled correctly on the standing issue, and also that you are correct that it is possible to reach more than one equally sound judgment from the prior state of the Fourth Amendment law, do you, Orin, find anything objectionable in Judge Aiken's actions? Was she under any obligation or should she have shown some deference to a kind of horizontal stare decisis respecting the FISCR opinion? Or was following her own, personal sense of the correct reading of the law, in fact, wholly appropriate or even preferable in thereby presenting conflicting opinions to the appellate courts?

In short, is the system working exactly as it should in this instance, or do those who complain of corrupting influences on the courts and Judge Aiken have valid counterpoints?
9.27.2007 2:46pm
AF:
I think Prof. Kerr's "human computer" example demonstrates that some privacy violations are not subject to an "in-kind" sort of remedy

I think the "human computer" example demonstrates that the retention of physical documents and evidence is concrete injury but retention of memories is not. That seems like an eminently reasonable and practical place to draw the line, for Article III injury-in-fact purposes.
9.27.2007 2:49pm
Montie:

You've only changed one variable from Keith: Now, instead of showing probable cause that the U.S. person is a terrorist, the government shows probable cause that the suspect is an agent of a foreign terrorist -- or, for that matter, of any other foreign power.

But why should that "foreigness" showing make such an enormous difference in what the constitutional minima should be between two cases, both of which involve searches here in the U.S. of U.S. persons?


I am not a lawyer, so I have always been curious about the following contrast:

A domestic terrorist organization is committing a crime when it conspires against the U.S., and warrants can be obtained on the conspirators in the organzation. Their communications with previously unidentified conspirators can be monitored.

In contrast, is a foreign government or organization committing a crime when it conspires against the U.S.? Can a warrant be obtained against the foreign government or organization to monitor its calls to potential foot soldiers in the U.S.? I am sure that someone knows the answer here.
9.27.2007 3:17pm
Bruce Hayden (mail) (www):
A domestic terrorist organization is committing a crime when it conspires against the U.S., and warrants can be obtained on the conspirators in the organzation. Their communications with previously unidentified conspirators can be monitored.
I really don't think that FISA would apply here. Maybe some day we will have to go to a similar regime for purely domestic terrorism. But part of the justification for FISA, etc. is that it is aimed at external threats, and not at U.S. Persons (citizens and legal aliens). U.S. Persons only get swept in at the periphery, and even then the 4th Amdt. likely applies.

In this case, the allegation was a credible claim of international terrorism. Note that the act of terrorism occurred in Spain. Those who pulled it off or worked on it would almost assuredly be classified as agents of a foreign power (under FISA). The problem was that the U.S. Person who was surveiled wasn't involved, and thus turned out not to be an agent of a foreign power, etc.
In contrast, is a foreign government or organization committing a crime when it conspires against the U.S.? Can a warrant be obtained against the foreign government or organization to monitor its calls to potential foot soldiers in the U.S.? I am sure that someone knows the answer here.
Oh, yes. You have to keep in mind that when FISA was originally enacted, the principal objects of surveilance were the USSR and probably, PRC, plus their allies. And much of the Act revolved around that fact. It was set up to allow spying on the USSR, China, their allies, and their agents. It was only with the PATRIOT Act that it was loosened up enough to easily cover terrorist organizations like al Qaeda.
9.27.2007 3:53pm
OrinKerr:
AF writes:

I think the "human computer" example demonstrates that the retention of physical documents and evidence is concrete injury but retention of memories is not. That seems like an eminently reasonable and practical place to draw the line, for Article III injury-in-fact purposes.
But why? Do you have an argument for this based on the cases interpreting the injury-in-fact element? Or is that just your personal instinct for a a sensible doctrine that would in your view work well? In my view, the only real difference could be redressibility: presumably even an Article III judge cannot successfully order a person to forget something.
9.27.2007 3:54pm
Bruce Hayden (mail) (www):
Assuming arguendo that Judge Aiken ruled correctly on the standing issue, and also that you are correct that it is possible to reach more than one equally sound judgment from the prior state of the Fourth Amendment law, do you, Orin, find anything objectionable in Judge Aiken's actions? Was she under any obligation or should she have shown some deference to a kind of horizontal stare decisis respecting the FISCR opinion? Or was following her own, personal sense of the correct reading of the law, in fact, wholly appropriate or even preferable in thereby presenting conflicting opinions to the appellate courts?
Also, I would suggest more deference to FISA would be in order. In fact, I would suggest that the judge here showed less, not more deference to the statute, and that is precisely opposite what I understand the case law requires. The statute was enacted to protect national security, and gutting it should take a lot more than one abuse of it. I am not suggesting that this was the only time that the FBI cut corners and crossed the 4th Amdt. line through its use of FISA. Rather, I am suggesting that this Court should not have invalidated it as a facial violation of the 4th Amdt., when likely almost all uses of the invalidated statutes are likely outside the 4th Amdt. due to their national security aspects, and the avowed goal of the statute of surveiling enemy communications. Rather, I am suggesting that the furthest that the judge should have gone would have been to possibly invalidate it as applied, instead of facially.
9.27.2007 4:05pm
Bruce Hayden (mail) (www):
I am also suggesting that a better and more sustainable approach would have been to leave the statute alone, but still find a 4th Amdt. violation. This would have the effect of protecting what needs to be protected (the privacy of U.S. Persons), without throwing out the bathwater with the baby (i.e. by hampering national security surveilance of international communications involving agents of foreign powers, notably international terrorist organizations).
9.27.2007 4:10pm
John (mail):
The troublesome language, " a significant purpose of the surveillance is to obtain foreign intelligence information," seems sort of a red herring. The language refers to the motivations of the government ("purpose"), which the Fourth Amendment does not address. The Amendment doesn't even say what sort of probable cause must exist, but only that warrants shall not issue "but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

My point is, if the statute simply omitted the "significant purpose" language (or the prior version simply omitted the "primary purpose" language), why wouldn't that be sufficient? That is to say, what, if anything, would be unconstitutional about a statute that said, a court could issue a warrant upon a finding of probable cause that the person "is a foreign power or an agent of a foreign power"?

Is there any ruling that that alone would not be sufficient?
9.27.2007 4:25pm
OrinKerr:
MacGuffin (Mark Hamstra), I often find your comments to me have an underlying tone of hostility; is that intentional, or am I just misreading you? I would like to know.
9.27.2007 4:37pm
Just Dropping By (mail):
Is there any ruling that that alone would not be sufficient?

The problem is a string of Supreme Court decisions from the late 1960s to mid-1970s that got cute about suggesting the Fourth Amendment did not apply to surveillance for purposes of "national security" without ever bothering to clearly spell out the parameters.
9.27.2007 4:53pm
Kelvin McCabe:
On why the "if you have nothing to hide you have nothing to fear" argument with regard to expanded governmental power in the patriot act, protect act, etc... is complete BS - - -from the opinion:

"Here, the government chose to go to the FISC, despite the
following evidence: Mayfield did not have a current passport; he had not been out of the country since completing his military duty as a U.S. Army lieutenant in Germany during the early 1990s; the fingerprint identification had been determined to be "negative" by the SNP; the SNP believed the bombings were conducted by persons from northern Africa; and there was no evidence linking Mayfield with Spain or North Africa. The
government nevertheless made the requisite showing to the FISC that Mayfield was an "agent of a foreign power."
That representation, which by law the FISC could not ignore unless clearly erroneous, provided the government with sufficient justification to compel the FISC to authorize covert searches and electronic surveillance in support of a criminal investigation..."

Chew on that for awhile.
9.27.2007 5:16pm
cboldt (mail):
-- It seems unlikely to me that the government would seek to circumvent the traditional Fourth Amendment standard of pc that a person committed a crime (however minor) simply by establishing pc that a person was a terrorist or a spy; if that's an easier threshold to meet, it's not clear to me why. --
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I can think of two advantages, off the top of my head, for seeking a FISA warrant, compared with seeking a "criminal investigation" warrant.

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One being the "difference" you allude to, in light of available "suspicion." That is, if the government doesn't have an articulable suspicion of criminal activity, but does have an articulable suspicion the person may be a source of foreign intelligence information, then the FISA warrant will be the only one that is available. That is, the requires for a "criminal surveillance" warrant would be rejected for want of pc.

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In this concept, note that there is no need to elucidate that the surveillance is to a terrorist or spy. The snooper need only elucidate that the surveillance is apt to disclose foreign intelligence -- some, but not all of which is spying and terrorism related.

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Another advantage being perpetual secrecy (and reduced possibility of leak from judicial venues, by restricting court activity to FISC). The government need never disclose the undertaking of a FISA search. This is particularly advantageous in terrorism investigations, where the connections between terrorists (the terrorist's networks) are opaque or unknown. If the snooping here involves "dry holes" and innocent people, the government would risk the ability to continue probing for connections, if publicity attached -- i.e., if the target was served with the warrant, even after a sneak and peek.

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I don't see either advantage as necessarily resulting in obtaining a FISA warrant being an "easier" task than obtaining a criminal surveillance warrant.

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I've found it useful to look at the choice from the other direction too, that being how the information will be used. In Keith, the evidence was precluded - so there is a risk that absence of independent cause for suspicion (independent of a FISA snoop, where the FISA snoop had no articulable suspicion of criminal activity) will compromise a criminal prosecution.

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In other words, "easier" has play on the back end, not just on the front end.
9.27.2007 5:18pm
Anderson (mail):
The government nevertheless made the requisite showing to the FISC that Mayfield was an "agent of a foreign power." That representation, which by law the FISC could not ignore unless clearly erroneous

I'm not clear whether the feds had to make a *showing*, which to my mind involves some proffer of evidence, or a *representation*, which does not.
9.27.2007 5:19pm
cboldt (mail):
FISA's 1804 seems to require a statement that other methods (e.g., criminal warrant) would NOT result in obtaining the information sought. This may be the situation where the snooper has insufficient probable cause to obtain a criminal search warrant.


Each [FISA warrant] application ... shall include ...
a certification ...
that the certifying official deems the information sought to be foreign intelligence information ...
that such information cannot reasonably be obtained by normal investigative techniques ...


So, if the information can be reasonably obtained by "normal investigative techniques" (not defined), the FISC is supposed to reject the application.
9.27.2007 5:41pm
OrinKerr:
Anderson, it requires a factual showing of probable cause.
9.27.2007 5:42pm
cboldt (mail):
Aside from the "destroy the wrongfully obtained evidence" remedy, I've been thinking about how this ruling affects the government.
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The District Court in Oregon has no direct say-so over FISA, so FISC is free to use the statutory standard for granting FISA warrants. Likewise, this opinion and order has no impact on any case that involves FISA-obtained information, where that case is in a different Court.
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Besides triggering an issue for appeal, the effect of the opinion (as I see it) is at most to put the government on notice that if it brings a criminal case in Oregon, any evidence obtained must have more probable cause than whatever fruit flowed from a FISA warrant issued on the "significant purpose" threshold. Otherwise, that evidence is at risk for being precluded from introduction at trial.
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The most that a "wrongfully" surveilled (shorthand for 4th amendment violation according to this judge) plaintiff could obtain would be a repeat of the same opinion and order.
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I do think it's good to have this case working it's way through the review process. The standard for application of a warrant to a criminal prosecution, as viewed by the various federal courts, may well differ from the standard perceived by the FISC, as it operates in its limited jurisdictional role of receiving FISA warrant applications and acting on them.
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IOW, there is a bit of jurisdictional combat underway, between District/Circuit federal courts and the FISA court.
9.27.2007 5:56pm
WAattorney:

"what is the "concrete" and "particularized" injury to Mayfield if somewhere there is a file that has information about him?"



The opinion does emphasize that much of the retained data is attorney work product or client information of 3rd parties. ISTM that illegally taking and refusing to return or destroy such material is causing an ongoing injury to Mayfield, no?
9.27.2007 5:59pm
cboldt (mail):
-- it [obtaining a FISA warrant] requires a factual showing of probable cause --
.

But complicating the analysis is that the pc under FISA is of a different sort from the pc under a criminal surveillance warrant. The two sorts of pc have some overlap (i.e., aren't mutually exclusive); but they aren't the same showing -- and in some fact patterns (some targets of FISA warrants), MAY be mutually exclusive (i.e., there is an absence of cause for suspicion of criminal activity)
9.27.2007 6:00pm
AF:
Orin: I was responding to your memory hypothetical -- not to case law -- and suggesting that the hypothetical is unpersuasive as applied to the retention of documents, which are concrete in a way that memories are not.

I am more persuaded by my own hypothetical, of a statute creating a right of action for individuals seeking to require the government to destroy illegally obtained evidence about them. While, as you correctly point out, that hypothetical does not address the question of redressability, it does address the question of injury in fact, conclusively in my view, since I think such a statute would be clearly constitutional.

Which brings us to the question of case law, which neither of us have cited (making it, I think, slightly unfair of you to disparage my comments as based on "personal instinct"). I am not aware of any Supreme Court case law addressing whether the retention of evidence is an injury in fact. But what is striking about the cases defining the injury-in-fact requirement -- Lujan, Laidlaw, Mass v. EPA, Sierra Club v. Morton, etc. -- is that virtually all of them involve "public interest" lawsuits by plaintiffs who have relatively unpersuasive claims to be any more harmed by a particular public policy than anybody else. The requirement that an injury be "concrete and particularized" seems to be largely synonymous with the prohibition on federal courts hearing "generalized grievances." Eg, Lance v. Coffman, 127 S. Ct. 1194, 1196-97 (2007).

When the government has a file on you that you wish to destroy or have declared illegal, that is hardly a generalized grievance; you have a specific, concrete disagreement with the government about particular objects within its possession. That seems worlds away from the taxpayer suits, citizen suits, and attenuated controversies (like the Sierra Club members who hike in a particular wildnerness that is under threat) that have usually been involved in standing cases. But of course, I am not a Fourth Amendment scholar and have not done thorough research on this question. Do you have cases applying more particularly to the Fourth Amendment context that suggest there is no standing?
9.27.2007 6:05pm
AF:
In the last sentence of my previous post, I again wrote "standing" when I meant "injury in fact." Doh.
9.27.2007 6:19pm
MacGuffin:
[Deleted by OK; Macguffin, do not comment at the Volokh Conspiracy again.]
9.27.2007 6:26pm
OrinKerr:
AF,

Okay, so here's the next hypothetical: The government deletes its files, although Agent X still remembers what he saw. At that point you would say there is no injury in fact. The next week, the Agent X is writing an e-mail to another Agent Y in which he mentions something he saw inside Mayfield's home. I gather at that point you would say that there was injury in fact again? What if the two agents delete the e-mail -- no injury in fact? What if the e-mail is somewhere on a server, although the agents don't know about the copy on the server -- injury in fact again? I don't know how "eminently reasonable" this line actually turns out to be.
9.27.2007 6:30pm
OrinKerr:
MacGuffin,

Different people have different tolerances for obnoxious behavior. Your repeated obnoxiousness directed at me over various threads has managed to exceed my own tolerance. I've thought a lot about this, and I really don't want you to comment here ever again. In light of that, I am banning you from VC comment threads.
9.27.2007 6:35pm
Anonymous Liberal (mail) (www):
Orin,

This is from page 23 of the opinion:

The government provides that derivative materials may include photocopies or photographs of documents from confidential client files in Mayfield's law office, summaries and excerpts from the computer hard drives from the Mayfield law office and plaintiffs' personal computers at home, analysis of plaintiffs' personal bank records and bank records from Mayfield's law office, analysis of client lists, websites visited, family financial activity, summaries of confidential conversations between husband and wife, parents and children, and other private activities of a family's life within their home.


Given that the primary interest protected by the 4th Amendment is privacy, the continued possession of this material by the government (assuming it was obtained illegally) seems very much to be a concrete and particularized injury. The only thing that would cause me to question whether there is standing here is if it is somehow beyond the court's powers to issue an order instructing the government to return or destroy this material. I don't know the answer to that. But if that is within the court's power, I think Mayfield clearly has standing. Which I suppose is a long way of saying that I agree the issue boils down to redressability.
9.27.2007 6:52pm
Just Dropping By (mail):
Prof. Kerr,

With regard to your discussion with AF, I think an analogy with a protective order is apposite. When parties receive documents pursuant to a protective order in a civil case they are usually required to either return all documents to the original owners or certify that they have destroyed them. The lawyers cannot be ordered to erase their brains, but if they repeat information that was received by them pursuant to a protective order, they can be found to be in contempt of court. I don't see why something similar couldn't be applied to government files composed of improperly collected information and their custodians.
9.27.2007 6:59pm
OrinKerr:
Anonymous Liberal,

Los Angeles v. Lyons is a helpful case here; In that case it seemed like it was the search or seizure that actually had to happen again to create standing.
9.27.2007 7:00pm
AF:
Orin: I would say that once records are destroyed, the injury becomes less concrete, and an email here and there does not make it concrete again. Sure, there could be line-drawing difficulties in particular cases (like if they tried to recreate reports, etc. from memory), but I don't see how that defeats the distinction in principle.

Though you've already responded to far more of my comments than I have any right to expect, I am still interested in your response to my hypothetical statute.
9.27.2007 7:09pm
cboldt (mail):
On the question of standing, I wonder in general about how any statute is found unconstitutional!
.
In this case, the plaintiff appears to have standing as to certain counts of his original complaint, and counts 12 and 13 just happen to survive a damages settlement on certain other parts. Does standing therefore "evaporate," even if counts 12 and 13 (challenging the constitutionality of the law) were valid as long as civil damages were still in play? Does a finding of liability on injury in fact remove standing as to a finding of unconstitutionality?
9.27.2007 7:17pm
OrinKerr:
AF,

I guess I don't see what principle you're applying, other than the fact that some things seem concrete to you and others don't. What's the difference, in your view?

Oh, and I thought I had responded to your proposed statute in my first comment: "Redressability requires a likelihood of actual relief, right? The fact that it would be constitutional to have relief if a statute existed that required it doesn't seem to make it likely here." Or did you have another post on this?
9.27.2007 7:24pm
Anonymous Liberal (mail) (www):
Orin, it seems to me that Lyons is pretty easily distinguishable. In Lyons, the plaintiff's person was seized and then released; the government retained nothing. So the issue was whether there was any likelihood of that happening again.

In Mayfield's case, the government is currently in possession of very private, tangible things (photographs of confidential client files, transcripts of personal conversations, personal documents from his hard drive) that he contends were obtained illegally and which he wants destroyed. He's alleging that it is an ongoing violation of his privacy that government agencies remain in possession of these private tangible things (which he alleges--and the judge agrees--were obtained unconstitutionally).

That strikes me a HUGE difference.
9.27.2007 7:34pm
OrinKerr:
AL,

You say that the government possesses tangible things of Mayfield's, but I believe that's incorrect. As I read the case, the government only has its own written records of what the government saw and heard:
The government provides that derivative materials may include photocopies or photographs of documents from confidential client files in Mayfield's law office, summaries and excerpts from the computer hard drives from the Mayfield law office and plaintiffs' personal computers at home, analysis of plaintiffs' personal bank records and bank records from Mayfield's law office, analysis of client lists, websites visited, family financial activity, summaries of confidential conversations between husband and wife, parents and children, and other private activities of a family's life within their home.
This seems to be all about the government's summaries of what they saw and heard, and in some cases copied computer files; I believe the government does not possess any copy of any tangible thing seized.
9.27.2007 7:42pm
AF:
I had another post clarifying that the statute hypothetical is meant to address injury-in-fact, not redressability. "The fact that it would be constitutional to have relief if a statute existed that required it" does mean that there is injury in fact, because without injury in fact, the statute would be unconstitutional.

As for why I think a physical file is concrete and a memory isn't, I guess I would rely on a dictionary definition of "concrete" such as "representing or applied to an actual substance or thing, as opposed to an abstract quality." Of course, neuroscience is telling us that memories are also actual substances and things, but I don't think the language has caught up to that yet (see, eg, Scalia's discussion of "psychic injury" in Hein). Also, as you point out, the real reason it would be absurd to try to erase memories is redressability.
9.27.2007 7:43pm
Steve2:
Professor Kerr, I'll take a stab at what I think makes AF's distinction valid: that memory alone is factually distinct from artificially enhanced (written description, photograph, computer file, etc.) memory, in terms of degree of detail for information, length of time information can be stored, transmissability without loss of the information (think the difference between a fax and the game telephone), etc? I know the law, whether you look at 4th amendment case law or Prosserian tort law, treats that as immaterial, but I don't think the arguments that artificially enhanced human senses and memory factually are, and thus should be legally, the same as the naked-body state are convincing and I think the case law's been dead wrong since day one on the matter.
9.27.2007 7:47pm
cboldt (mail):
If I'm getting the gist of the contention, it's that if the government didn't have a tangible artifact as a reminder of the search (no notes, no electronic record, no photocopies); then the plaintiff has no standing.
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IOW, if the remedy of "destroy the record" is executed pre-emptively, the case goes away.
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If that's the rule, then no search that avoids taking tangible evidence can be ruled unconstitutional. Any pat down, anywhere, at any time - any requirement to show ID, etc. -- no tangible injury unless a record is made and/or an object is removed from the subject's possession? Is that the proposed rule?
9.27.2007 8:02pm
OrinKerr:
Af,

To be clear, I know what "concrete" means; my question is why you think some things are concrete and others are not. Take the e-mail, which you say is not concrete. If Agent X prints it out and takesa manila envelope and writes"Mayfield file" on it, does that =make the injury in fact concrete such that it creates article III standing?

Steve2,

Does that mean that out-of-focus photographs do not create Article III standing, but in-focus photographs do? What if the government only has one word from a document found in Mayfield's house, and that one word is "the"? I find this line puzzling.
9.27.2007 8:05pm
Anonymous Liberal (mail) (www):

I believe the government does not possess any copy of any tangible thing seized.

I'm just going by the opinion, which, as you point out says that the government possesses, among other things, "photocopies or photographs of documents from confidential client files in Mayfield's law office." Isn't that a copy of a tangible thing the government seized?

Furthermore, suppose the government illegally eavesdropped on a very private conversation between you and your wife and retained copies of the transcript, as well as memos that quote juicy parts of the transcript. Wouldn't you consider the government's continued possession of those documents to be a violation of your privacy? That seems like a concrete and particularized injury to me, one that would be remedied (at least in part) by an order instructing the government to destroy those documents.
9.27.2007 8:09pm
WAattorney:
Professor Kerr,

If I might politely take strong exception to your 6:42pm assertion that "the government does not possess any copy of any tangible thing seized." It does according to the very words in the section of the opinion you quote from, and the continued adverse possession of 4th Amendment-protected items seems a core part of the damages. For example, the government has "[its own, self-generated] photocopies or photographs of [Mayfield's original] documents from confidential client files." It has a tangible photocopy of a thing seized. Assuming arguendo that the "things" were returned, as was demanded in claim 13, the physical photocopy of the protected paper was still retained. You aren't alleging electronic file copies of electronic files, or photocopies of papers, are insufficiently tangible to give meaningful relief, are you? ISTM that this logic carried through would prevent a facial challenge to a statute that authorized 1-time-only warrantless sneak and peek searches where only photos were taken, no? Nothing original taken, no ongoing violation... Certainly that can't be right.
9.27.2007 8:16pm
AF:
Orin -- sorry, I didn't mean to be sarcastic or anything like that. Not having worked directly with law enforcement officials, I am making some assumptions about their records that might not be correct. I am assuming law enforcement agencies keep fairly detailed and well-organized records of their investigations, so if, for example, someone with the authority to do so called up the FBI and asked whether they had a file on me, and what was in it, they would get a fairly clear answer, without having to ask around or search through individual agents' email. If that assumption is correct, then it is a relatively concrete fact whether or not the FBI has retained a file of their investigation of you. I would think that the existence of such a file, if its contents were illegally obtained, is an injury in fact (whether it is redressable is a separate question). I guess you could say this is based on my "sense" of what is concrete and what is not, but it is a sense that is informed by a passing knowledge of the Supreme Court's leading cases on standing, most of which, however, are not very directly on point.
9.27.2007 8:26pm
cboldt (mail):
-- ISTM that this logic carried through would prevent a facial challenge to a statute that authorized 1-time-only warrantless sneak and peek searches where only photos were taken, no? Nothing original taken, no ongoing violation --

.

I don't think the logic would require the statute to be "1 time" limited, because nobody can predict in advance that they will be the target of a 1st, 2nd, or 3rd search. See, e.g., DUI roadblocks - as long as the targets for search are random.

.

Understood that DUI searches occur where there is no reasonable expectation of privacy. I'm just using that as an example of a "search" regime that has some possibility of repeat encounter, but does not determine the incidence of a repeat encounter.
9.27.2007 8:29pm
Anonymous Liberal (mail) (www):
Though I'm having a hard time sorting it out in my own mind, it seems to me that there's a logical connection between this injury-in-fact analysis and the purpose underlying minimization rules in the surveillance context. Minimization procedures are required by law because it is thought to be injurious to people's privacy for the government to retain and/or disseminate certain information about them. Mayfield's standing argument seems to rely on a similar theory of injury.
9.27.2007 8:51pm
cboldt (mail):
Running through Findlaw's Fourth amendment section, I ran across a case where an Illinois statute was ruled unconstitutional, where the searcher took nothing but notes of serial numbers on cars in a wrecking lot.
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ILLINOIS v. KRULL, 480 U.S. 340 (1987).
9.27.2007 8:58pm
OrinKerr:
WA Attorney writes:
If I might politely take strong exception to your 6:42pm assertion that "the government does not possess any copy of any tangible thing seized." It does according to the very words in the section of the opinion you quote from, and the continued adverse possession of 4th Amendment-protected items seems a core part of the damages. For example, the government has "[its own, self-generated] photocopies or photographs of [Mayfield's original] documents from confidential client files." It has a tangible photocopy of a thing seized. Assuming arguendo that the "things" were returned, as was demanded in claim 13, the physical photocopy of the protected paper was still retained. You aren't alleging electronic file copies of electronic files, or photocopies of papers, are insufficiently tangible to give meaningful relief, are you? ISTM that this logic carried through would prevent a facial challenge to a statute that authorized 1-time-only warrantless sneak and peek searches where only photos were taken, no? Nothing original taken, no ongoing violation... Certainly that can't be right.

Well, you can certainly object as strongly as you like, but I believe 'tis the law. See, e.g., Bills v. Aseltine, 958 F.2d 697 (6th Cir,. 1992) (taking photographs of the inside of suspect's home during the execution of a search could not violate the Fourth Amendment because taking a photograph is neither a search nor a seizure). As for sneak and peek warrants, the entrance is obviously a search. As for whether any seizure occurs, it's actually a tricky question; my HLR article goes into this a bit.
9.27.2007 9:03pm
OrinKerr:
Cboldt,

Not quite. Check out Arizona v. Hicks, 480 U.S. 321 (1987) (copying serial numbers is not a seizure).
9.27.2007 9:07pm
Anonymous Liberal (mail) (www):
Orin, maybe I'm missing something, but the question does not seem to be whether the government's ongoing possession of this material in itself violates the Fourth Amendment. The question is whether Mayfield has an injury-in-fact that stems from the illegal search. And lots of things that don't constitute searches or seizures in and of themselves can nevertheless qualify as an injury-in-fact.

Suppose the police took a photograph inside your home of something very private (say a picture of you or a member of your family in your underwear). Suppose they had no right to be in your home and they refused to return or destroy the photo. Don't you think their continued possession of that embarrasing photo would constitute an injury-in-fact, even if taking the photo didn't amount to a seizure?
9.27.2007 9:19pm
cboldt (mail):
I wasn't arguing whether the taking of notes was a seizure. I was just pointing to a case wehre SCOTUS upheld a finding that a search-enablig statute was unconstitutional, where the search didn't amount to a seizure.
9.27.2007 9:19pm
DougA (mail):
US District Judge Robert Jones ruled in May 2004 that

http://www.ord.uscourts.gov/Mayfield/mayfield.htm

"Due to the misidentification by the FBI of a fingerprint:

The court orders the material witness proceeding dismissed.
The court orders all property seized to be returned to the material witness and copies of any property retained by the Government destroyed.
The court's protective order is completely rescinded. All relevant pleadings previously filed are unsealed.
The court orders all previously sealed minute orders be unsealed.
The court orders the supervision of the material witness by Pretrial Services cancelled.

Copies of the unsealed minute orders are available at the Clerk's office on the 7th floor in the Hatfield Courthouse.

The court will issue no further comment. - entered 5/24/2004 11:45am

The Government is ordered to preserve all of the information it has obtained regarding the alleged fingerprint of Mr. Mayfield. - entered 5/24/2004 2:15pm"

Didn't the government follow Judge Jones' order? If not, why wasn't this part of Mayfield's settlement? Does this have something to do with what Judge Jones order for the material to be preserved?

Not a lawyer but a quick scan of the ruling from Judge Aiken doesn't appear to mention the prior ruling from Judge Jones of the same district circuit.
9.27.2007 9:27pm
Steve2:

Does that mean that out-of-focus photographs do not create Article III standing, but in-focus photographs do? What if the government only has one word from a document found in Mayfield's house, and that one word is "the"? I find this line puzzling.


Were the law what I want it to be, there would be Article III standing in both cases, although I'm thinking more in terms of a suit for damages for taking the photograph or reading his documents. Now, if all they've got is a blurry photograph or the definite article, that's not going to be much of an on-going injury, but it doesn't make the initial investigatory effort any less injurious.

Sadly, the law is not what I want it to be, and so non-consensual photography isn't a recognized form of assault, "Don't look at me" doesn't have the same force as "Posted: No Trespassing," and the "reasonable" expectation of privacy is unpalatably minimal.
9.27.2007 10:45pm
Bryan DB:
Orin at 8:03pm
i think you're going apples-to-oranges. Even if taking a photograph isn't "a search or seizure" the resulting photograph is still a tangible thing in the possession of the photographer. It's not a search or seizure if a private citizen comes to my house and takes my dog, to give to the government, but the dog is still tangible.
So I think WAattorney is right, as per the paragraph you quoted. The government has tangible things (photocopies of documents) in its possession which it was supposed to destroy or return: injury.
9.27.2007 11:43pm
OrinKerr:
BryanDB,

Aren't you and WAattorney simply assuming the conclusion? Consider some exmaples. If I take a picture of you with my camera, is that image yours? Is it mine? What if I draw your image? What if I go home and write in my diary, "Bryan DC had a comment at the VC today." Am I injuring you by keeping derivative evidence of yours in my diary? Why or why not?
9.28.2007 12:05am
CharleyCarp (mail):
I'm not sure that standing is lost when some claims but not all are settled. When the case was commenced, Mayfield clearly had standing to challenge the government's past acts, and seek a declaration as to the legality of those acts. And isn't standing a question of the status quo at the outset of the lawsuit, not each and every minute as the suit progresses?

I'm sure you know the answer to this, Prof. Kerr, but I'll have to look it up to avoid being driven crazy.
9.28.2007 1:24am
CharleyCarp (mail):
More properly, my last comment should read that when his suit was commenced, Mayfield certainly had standing to seek a declaration that the statute under which the government had purported to act was unconstitutional. Because he was seeking damages for the violation.

What was strange to me about Judge Aiken treatment of this point is her assumption that after the declaration, only the government's good will would be left to remedy the harm -- good will she was content to presume. I don't see why she'd have to do that, given her power under the Declaratory Judgment Act to order 'other and further relief' after a declaration, which could well include, it seems to me, an order to turn all copies of illegally obtained evidence to Mayfield.
9.28.2007 1:31am
anduril (mail):
Perhaps this passage from In re Sealed Case helpfully summarizes some of the 4th Amendment issues:

Ultimately, the question becomes whether FISA, as amended by the Patriot Act, is a reasonable response based on a balance of the legitimate need of the government for foreign intelligence information to protect against national security threats with the protected rights of citizens. Cf. Keith, 407 U.S. at 322-23 (in domestic security context, holding that standards different from those in Title III "may be compatible with the Fourth Amendment if they are reasonable both in relation to the legitimate need of the government for intelligence information and the protected rights of our citizens"). To answer that question--whether the Patriot Act's disavowal of the primary purpose test is constitutional--besides comparing the FISA procedures with Title III, it is necessary to consider carefully the underlying rationale of the primary purpose test.

It will be recalled that the case that set forth the primary purpose test as constitutionally required was Truong. The Fourth Circuit thought that Keith's balancing standard implied the adoption of the primary purpose test. We reiterate that Truong dealt with a pre-FISA surveillance based on the President's constitutional responsibility to conduct the foreign affairs of the United States. 629 F.2d at 914. Although Truong suggested the line it drew was a constitutional minimum that would apply to a FISA surveillance, see id. at 914 n.4, it had no occasion to consider the application of the statute carefully. The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.26 It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power. The question before us is the reverse, does FISA amplify the President's power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government's contention that FISA searches are constitutionally reasonable.


FWIW, my understanding of how this works is:

1. All courts that have considered the issue agree that the President can conduct warrantless collection of foreign intelligence information. As was noted above, much of that controversy leading up to FISA swirled around Nation State actors such as the former USSR and the current PRC, but it did also envision other than Nation State actors.

2. The problem that FISA especially wanted to address was the targeting of US persons, because it is not as clear that the President can specifically target US persons for such surveillance, since the connection to the President's commander in chief and foreign policy powers is 1) not nearly so clear and 2) more open to abuse for political purposes. To target US persons, FISA requires that the activities of those US persons "involve or are about to involve a violation of the criminal statutes of the United States."

3. That requirement under FISA set up what is close to a Catch-22 situation when coupled with the Truong concept of "primary purpose:" if the probably cause showing under FISA requires a showing that "a violation of the criminal statutes of the United States" is or is about to occur. It is very difficult for the government investigators, such as the FBI, and prosecutors to argue that there is probable cause that "a violation of the criminal statutes of the United States" is or is about to occur but that they are primarily concerned with gathering foreign intelligence. In the real world, prosecutors and investigators who spend most of their time seeking criminal convictions will almost always have prosecution very much in mind no matter what action is ultimately decided upon, and the question of which motive--FI gathering or prosecution--is primary becomes almost impossible to cleanly determine.

4. The Patriot Act sought a reasonable resolution of this conundrum, finding that the Truong "primary purpose" concept is not constitutionally mandated and, in fact, is based on a misconception. As stated in In re Sealed Case:

Rather, assuming arguendo that FISA orders are not Fourth Amendment warrants, the question becomes, are the searches constitutionally reasonable. And in judging reasonableness, the instability of the Truong line is a relevant consideration.

The Fourth Circuit recognized that the Supreme Court had never considered the constitutionality of warrantless government searches for foreign intelligence reasons, but concluded the analytic framework the Supreme Court adopted in Keith--in the case of domestic intelligence surveillance--pointed the way to the line the Fourth Circuit drew. The Court in Keith had, indeed, balanced the government's interest against individual privacy interests, which is undoubtedly the key to this issue as well; but we think the Truong court misconceived the government's interest and, moreover, did not draw a more appropriate distinction that Keith at least suggested. That is the line drawn in the original FISA statute itself between ordinary crimes and foreign intelligence crimes.

It will be recalled that Keith carefully avoided the issue of a warrantless foreign intelligence search: "We have not addressed, and express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents." 407 U.S. at 321- 22.30 But in indicating that a somewhat more relaxed warrant could suffice in the domestic intelligence situation, the court drew a distinction between the crime involved in that case, which posed a threat to national security, and "ordinary crime." Id. at 322. It pointed out that "the focus of domestic surveillance may be less precise than that directed against more conventional types of crimes." Id.

The main purpose of ordinary criminal law is twofold: to punish the wrongdoer and to deter other persons in society from embarking on the same course. The government's concern with respect to foreign intelligence crimes, on the other hand, is overwhelmingly to stop or frustrate the immediate criminal activity. As we discussed in the first section of this opinion, the criminal process is often used as part of an integrated effort to counter the malign efforts of a foreign power. Punishment of the terrorist or espionage agent is really a secondary objective;31 indeed, punishment of a terrorist is often a moot point.


5. Therefore, since the "primary purpose" test is not only not constitutionally mandated but, in fact, misconceives the government's purposes in FI and terrorist investigations, the "significant purpose" standard adopted by the Patriot Act is "reasonable" for purposes of the 4th Amendment. Core to this reasonability is the the fact that the government's purposes may be quite fluid: until the last moment of the investigation the primary purpose may not be certain. This is caused by the many ramifications of national security interests, so that the purpose may change as new facts are learned, as new information from newly developed sources (for example) flows in. Under such circumstances it would be unreasonable to impose a "primary purpose" test because such a test would have a strong tendency to unreasonably frustrate legitimate government interests in protecting its citizens. This, it is argued, is the type of consideration that is hinted at in Keith's balancing--although not explicitly discussed.

Factually, the unreasonable tendency of the "primary purpose" test is shown by the fact that it gave rise to the infamous "Wall" which, IMO, led in a fairly direct line to the intelligence breakdown that made 9/11 possible.
9.28.2007 12:04pm
Anderson (mail):
Having (finally) read the statute, I think a basis for the decision might be that there's no probable-cause requirement under the statute for the element of "significant purpose" at section 1804.

All you have is the certification by a federal official, the classic "because I say so." Facts supporting other things have to be stated, but nothing to support the certification.
9.28.2007 12:27pm
anduril (mail):
Anderson, check out section 1805.
9.28.2007 12:42pm
anduril (mail):
Which is to say, the probable cause for the application in general (1805) should normally give a very clear notion of the foreign intelligence that is being sought and, thus, that foreign intelligence gathering is a "significant purpose." (1804)
9.28.2007 12:46pm
cboldt (mail):
IIRC, "primary purpose" as stated in Truong was an artifact of the government's argument. The government argued that in surveilling Truong and Humphrey, its primary purpose was to obtain foreign intelligence.
.
The Court agreed that this was appropriate/enough justification. That doesn't settle the question of whether a lower threshold is also "enough justification."
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At any rate, the Court didn't "make up" the primary purpose test. That just happened to be the framework of the case before it.
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Whatever the "constitutionally mandated" minimum threshold is, we don't have an appellate court case, that I know of, to cite.
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But there is that "no warrants except on probable cause" threshold, and the foreign intelligence pc of FISA doesn't directly apply in that context. A court may well find a criminal warrant to violate the 4th, if the criminal pc was bootstrapped from a snoop that lacked supporting evidence to sustain criminal pc.
9.28.2007 12:53pm
anduril (mail):
cboldt, it seems that there are, in a sense, two FISA probable cause moments when the target is a US person (USPER), such as Mayfield:

1) the Government must first have PC that the USPER target is an agent of a foreign power, and then must also have

2) PC that the USPER agent of a foreign power is engaged in or is about to engage in "a violation of the criminal statutes of the United States."

Does this address any of your concerns?
9.28.2007 1:28pm
cboldt (mail):
I don't see a source for a FISA requirement to find "PC that the USPER agent of a foreign power is engaged in or is about to engage in 'a violation of the criminal statutes of the United States.'" As far as I know, no such requirement attaches to obtaining a FISA warrant. 1804 and 1823, in combination with definitions in 1801, (mostly) lay out the requirements for a FISA warrant, and the requirements all pertain to the acquisition of foreign intelligence information.
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I don't think the fact pattern of Mayfield poses any trouble for obtaining a criminal warrant -- which is, I think, one way to view the gist of Judge Aiken's opinion. She figures that if there is sufficient PC to get a criminal warrant, then the government is at least free to do so, and perhaps by statute is "required" to do so.
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My reading of FISA 1804 opens up the possibility the government has to, in order to obtain a FISA warrant, certify "that such [foreign intelligence] information cannot reasonably be obtained by normal investigative techniques." I have no certainty as to what that means, but speculate it's a reference to a process that includes the obtaining of a criminal warrant.
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My thoughts that amount to "a concern" includes those cases where a suspicion-less foreign intelligence snoop (no suspicion of criminal activity) is bootstrapped into either a 4th amendment "reasonable search" or "warrant on probable cause."
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The idea behind a warrant being that the court will, before it endorses the snoop, require the snooper to express an idea of what they are looking for, that the search isn't a random intrusion looking for violations -- and that it will try to avoid endorsing a snoop where suspicion is bootstrapped from an unreasonable search.
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I note in passing that the interplay affecting a decision to seek a 1804 warrant vs. a criminal warrant is almost moot, with the passage of the PAA. But, the risk of bootstrapping a suspicion-less snoop into a criminal warrant and prosecution is increased by the passage of the PAA.
9.28.2007 2:08pm
anduril (mail):
cboldt wrote:
I don't see a source for a FISA requirement to find "PC that the USPER agent of a foreign power is engaged in or is about to engage in 'a violation of the criminal statutes of the United States.'" As far as I know, no such requirement attaches to obtaining a FISA warrant.


Here's how I read FISA. 1805 requires a showing of PC that the target--whoever that may be--is a foreign power or an agent of a foreign power:
1805. Issuance of order
(a) Necessary findings
Upon an application made pursuant to section 1804 of this title, the judge shall enter an ex parte order as requested or as modified approving the electronic surveillance if he finds that—
(1) ...
(2) ...
(3) on the basis of the facts submitted by the applicant there is probable cause to believe that
(A) the target of the electronic surveillance is a foreign power or an agent of a foreign power
...


However, in the case of an USPER agent of a foreign power (e.g., Mayfield), there is a twist: by definition, the category "USPER agents of foreign powers" only includes those USPERS whose activities "involve or may involve a violation of the criminal statutes of the United States."

(b) "Agent of a foreign power" means—
(1) any person other than a United States person, who—
(A) ...;
(B) ...; or
(C) ...; or
(2) any person [any = USPERS included] who—
(A) knowingly engages in clandestine intelligence gathering activities for or on behalf of a foreign power, which activities involve or may involve a violation of the criminal statutes of the United States;
(B) pursuant to the direction of an intelligence service or network of a foreign power, knowingly engages in any other clandestine intelligence activities for or on behalf of such foreign power, which activities involve or are about to involve a violation of the criminal statutes of the United States;
(C) ...;
(D) ...; or
(E) ...

In other words, if the applicant must provide PC that the USPER target is an agent of a foreign power, then the applicant must provide PC that includes all elements of the definition of "agent of a foreign power." As applied to USPERS, that means the applicant must provide PC that the USPER target

[1.] "knowingly engages in clandestine intelligence gathering activities for or on behalf of a foreign power,

[2.] which activities involve or may involve a violation of the criminal statutes of the United States;"

If there is no PC for either element the application must be rejected. For example, if there is PC that the USPER is knowingly engaged in clandestine intelligence gathering but that intelligence gathering doesn't violate a criminal statute of the US, then that USPER is not an agent of a foreign power for purposes of FISA--he may, however, be an agent of a foreign power for purposes of the Foreign Agents Registration Act (FARA). If the government can show probable cause that the USPER is in violation of FARA, they may still be able to get their FISA order--even though the intelligence gathering is not criminal in nature--since FARA has criminal provisions. A situation that comes to mind might be, providing publicly available information needed by terrorists when that public information may require expert interpretation or explanation for it to be useful to the terrorists.
9.28.2007 2:55pm
R. Richard Schweitzer (mail):
Lewis Powell would never have said "...him struggling with the craft." He did respect the gerund. Has it become extinct even amongst those who profess to guide the writings of others?

R. Richard Schweitzer
s24rrs@aol.com
9.28.2007 3:39pm
cboldt (mail):
Thanks. I see it now. (A) and (B) appear to be narrowly drawn to spying-like actions, in the vernacular of the code, "engages in clandestine intelligence activities." This is a fairly narrow and specialized subset of criminal code violation.
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See too the 1801(b)(2)(C) "agent" who is suspected of international terrorism. International terrorism is similarly defined as having a criminal violation component, if the action is conducted in the US. More on that below -- there is a difference in the FISA "view," as compared with a literally "criminal in the US" view.

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The effect being that if there is a class of cases where the government can obtain a (FISA) warrant without showing something that resembles probable cause of a criminal violation, it's limited to categories 1801(b)(2)(D) - knowingly entering the US under false pretenses on behalf of a foreign power (I think that's a crime of its own right); or 1801(b)(2)(E) - aiding or abetting criminal clandestine surveillance or international terrorist activity.

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Representing that a US person is an agent of a foreign power is roughly tantamount to representing the existence of probable cause that the person has committed or will commit a criminal violation.

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"Roughly tantamount" has a rub though. As started above, there is a difference when the snooper is looking for evidence of "international terrorism." International terrorism is defined as acts that occur totally outside of the US, or somehow transcend the geographic boundary of the US.

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I'm not sure the technical geographic difference embodied in the definition of "international terrorism" is helpful to a target of surveillance. If a person in the US is suspected of being willing to perpetrate or facilitate an act of terrorism in (picking a country at random) Poland, it's eminently reasonable in my mind to wonder if they will perpetrate or facilitate a terrorist action in the US.
9.28.2007 4:11pm
David M. Nieporent (www):
Aren't you and WAattorney simply assuming the conclusion? Consider some exmaples. If I take a picture of you with my camera, is that image yours? Is it mine? What if I draw your image? What if I go home and write in my diary, "Bryan DC had a comment at the VC today." Am I injuring you by keeping derivative evidence of yours in my diary? Why or why not?
I don't think that's a very good analogy. Bryan DC's comment at the VC was public, and you didn't have to violate anything to obtain this information. If you did, it would be different. Isn't that what we're discussing? Information that you couldn't have obtained without violating the 4th amendment?

If you take a picture of him on the street, obviously it isn't his, and isn't deemed a harm to him that you did so. But if you sneak into his house through an unlocked door and take a picture of him in the shower, that would be a different story. And even though you took the picture, if you wanted to disclose it to others, that would likely be tortious.
9.28.2007 5:25pm
anduril (mail):
cboldt, I think we're pretty much on the same page. However, I would like to offer a pair or so of cautions. As to "clandestine" intelligence activities, there is some dispute as to exactly what that means. Even in the "spy world" there are activities that are engaged in in support of, say, espionage which are indubitably "clandestine" (e.g., communicating via specialized equipment or techniques, such as concealing messages in images on a webpage, etc.). But there are also activities that support espionage that can be done in plain view with no effort at concealment. For example, an agent is told to stand on a particular street corner at a certain time to signal agreement to some proposal connected to planned espionage. Is that a "clandestine" act intended to further the commission of a crime? I would say yes, that the intent of the act is itself hidden and thus transforms a seemingly open act to one that is in fact clandestine, but there are some who might disagree.

The other example I gave was that of collecting public information. An example that involved a criminal conviction under FARA was that of an Iraqi agent, and USPER, who operated a newspaper in the US. (Unfortunately, I can't recall whether FISA was used in that case--I'd have to look the case up again and I've forgotten the name.) In that capacity he was able to avoid suspicion while he collected information regarding Iraqi-Americans who were opposed to Saddam Hussein's regime. His actions were, overtly, those of a newspaper owner, but those overt actions had a covert or clandestine purpose. Which is simply to say that in discussing these matters one's imagination may well be the limit for possibilities, and most of us have fairly limited imaginations in this regard. I suspect issues like these also come up in the cases we read about concerning Islamic "charities."

I would also be cautious about saying:
Representing that a US person is an agent of a foreign power is roughly tantamount to representing the existence of probable cause that the person has committed or will commit a criminal violation.

Obviously, your statement was made in a particular context, that of a FISA application regarding an USPER. In that context, no application, with its requisite representations regarding status as a foreign agent, will be made without at least some arguably supporting evidence of criminality. My caution is that FISA uses a very specific definition of "agent of a foreign power" which is not the same as the equally specific definitions that are used in other criminal statutes. In the last ten years or so there has been increasing use of these various statutes in combination with one another, including with FISA, so that it is necessary to be clear about which definition is being applied to which situation.
9.28.2007 6:54pm
cboldt (mail):
-- I would also be cautious about saying: --


Representing that a US person is an agent of a foreign power is roughly tantamount to representing the existence of probable cause that the person has committed or will commit a criminal violation.


Well, I did use the word "roughly" in there, along with some review of the statutory definition of "agent of a foreign power" that includes the snooper looking for material that technically isn't criminal in the US (except for the clandestine surveillance that IS also a criminal violation), therefore a criminal warrant would be denied for technical reasons.
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My statement isn't all that much different from your numeral two description of the rough findings, that resemble probable cause, necessary to support an application for a FISA order:


... there are, in a sense, two FISA probable cause moments when the target is a US person (USPER), such as Mayfield:
1) the Government must first have PC that the USPER target is an agent of a foreign power, and then must also have
2) PC that the USPER agent of a foreign power is engaged in or is about to engage in "a violation of the criminal statutes of the United States."


Thinking out loud about the Mayfield ruling (this is off the direct detail we just chatted over), it's aimed at the snooper choice as between a FISA warrant and a criminal warrant -- meaning that it doesn't at all probe the issues related to warrantless surveillance.
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As between a FISA warrant and a criminal warrant, the FISA statute seems intended to draw a fairly sharp line; that being that a FISA warrant is appropriate when the information being sought (with reason to have this sort of suspicion) is such that there is not a suspicion of US criminal activity, on technical grounds. E.g., the person is plotting to rob a bank in Germany and send the money to Hamas (maybe an incorrect example, but the idea is that the law broken isn't one that can be prosecuted in the US). When the snooper can't specify a US law to be broken, a court would refuse an application for a criminal snoop warrant.
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Rereading Mayfield, Judge Aiken seems to be describing as "as applied" constitutional deficiency. The government had criminal prosecution as its primary purpose, but was able to obtain a FISA warrant with the FISA Court properly construing the FISA statute. But some of the reasons she uses for finding a constitutional deficiency are incorrect. "FISA also does not require particularity." Yes it does.
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I'd like to understand whether or not the FISA process would pass 4th amendment muster, if the primary purpose of the snoop was criminal prosecution. If not, why not?
9.28.2007 9:36pm
cboldt (mail):
Adding on a little bit, it's "unfair" to complain that a FISA application doesn't recite elements of a crime - the FISA process doesn't have space for that sort of finding. By statutory design, the subject matters of the search regimes are mutually exclusive. A criminal court would likewise be "unimpressed" with a showing of probable cause for finding foreign intelligence.
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In the real world, there is apt to be some of both kinds of suspicion.
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I might tinker a bit with the analytical tool of probing for gaps between a FISA warrant (assume FISA is modified to say the process can be used for any federal criminal prosecution - have FISA substitute for the criminal warrant process) and the fourth amendment.
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The world went around just fine without FISA ... the warrantless snooping on Truong (would be a FISA warrant now) was found "okay" because Truong was dealing in foreign intelligence -- and the domestic terrorist perp in Keith was protected by the fourth amendment. Maybe, where FISA was intended to clarify, simplify and make the universe of keeping social order more predictable; maybe it's having the opposite effect, creating a point of confusion and argument that need not exist.
9.28.2007 10:27pm
anduril (mail):
cboldt, I would tend to agree with your last paragraph. There are other ways to monitor what our intelligence agencies are doing than the FISA way, which, to me, seems somewhat ham handed. Mayfield is the classic tough case leading to a wrong decision. The Feds honestly believed they had excellent evidence (fingerprints) and honestly goofed. There should be a way to compensate Mayfield but not throw the baby out with the bath water--after all, there really are bad people out there who want to hurt innocent people. It's really not as if the Feds have nothing better to do. Monitor, compensate, discipline if necessary, but don't tie the hands of the intelligence agencies unnecessarily. Let's see some creativity from our lawmakers.
9.28.2007 11:16pm
cboldt (mail):
-- The Feds honestly believed they had excellent evidence (fingerprints) and honestly goofed. --
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At some point the "goof" got a life of its own, and became more of a coverup/CYA/we-do-no-wrong exercise, in light of the realization (or "should have known) the guy was not involved in the Madrid bombing.
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No matter, the finding of facial statutory deficiency stands independently from "not respecting the fourth amendment" with regard to this plaintiff.
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I assume Mayfield was personally remedied with the two million dollar award. My curiosity is more with the statutory scheme, assuming it is operated more or less as it can be fairly construed.
9.29.2007 12:47am
cboldt (mail):
-- There are other ways to monitor what our intelligence agencies are doing than the FISA way --
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I don't see any effective way to overcome state secret. I believe the government can operate a "surveillance society" sort of acquisition activity (random snooping as a matter of quality control, if you will - sample size developed by technological limitations, not by legal limitations) indefinitely, provided it doesn't admit it if/when caught. That's not to say it's constitutional, just to say that I think it's possible to get away with it. Some would argue that it's not only possible, but that it's prudent.
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If there is to be independent review of some of those incidences of "for your protection" surveillance, by a court, that can come if the perp is brought to trial before a court.
9.29.2007 12:58am
JOe:
There are news reports which imply that Mayfield received a fairly substantial settlement from FBI (apparantly related to prior case). This brings up two questions A) does any one have knowledge of any settlement and B)if Mayfield and the FBI reached a settlement - How can the case have standing since case was settled and therefore no longer a controversy?
9.29.2007 12:49pm