The Hidden Meaning (Maybe) of the New FISC Opinion

The Foreign Intelligence Surveillance Court released an opinion today, dated June 17, holding that despite the brief lapse of several provisions of the USA Patriot Act, the effect of the USA Freedom Act was to extend and amend the pre-sunset version of the law, not the pre-Patriot version technically in effect at the time of the bill’s passage.  Though the issue had been raised previously here on Just Security, I tend (mirabile dictu!) to agree with the FISC that this is really something of a no-brainer:

Although the statutory framework is somewhat tangled, the choice before the court is actually very clear and stark: as described below, it can apply well- established principles of statutory construction and interpret the USA FREEDOM Act in a manner that gives meaning to all of its provisions, or it can ignore those principles and conclude that Congress passed an irrational statute with multiple superfluous parts.

Since reading USA Freedom as amending the post-sunset law would result in legal gibberish, in other words, the FISC reads the law as doing what Congress very obviously intended for it to do, not what a hyper-literal evil genie might read it as doing.  That much is neither surprising nor interesting.  What I do find interesting are the implications of what the court did not say about the appointment of an amicus to brief this issue.

USA Freedom stipulates that the court “shall” appoint an amicus to advise it on applications involving “significant” or “novel” questions of law, unless the FISC issues a “finding” that such an appointment is “not appropriate.”  Because, as with several of the other reforms,  the law gives the court 180 days to designate a pool of persons eligible to serve as amici, the FISC could at least plausibly have inferred that it was not obligated to do so until that six month window had expired.  But the court didn’t do that here, instead holding that appointment of an amicus was “not appropriate” in situations where “the appropriate outcome is sufficiently clear, such that no reasonable jurist would reach a different  decision.”  While I tend to agree in the instance, I share the qualms of many privacy advocates about how that standard might be applied in the future: Many legal questions seem “clear” until you’ve heard a counterargument, which is precisely the point of the amicus provision.  But that’s not what I find significant.

As we know, the Justice Department has already asked the FISC to re-authorize bulk collection of telephony metadata, which was halted during the temporary sunset of §215.  Congress appears to have assumed that such bulk collection would continue during a six month “transition” window, but as I noted in a recent post, it remains at least questionable whether the law really allows that, in light of the Second Circuit ruling that the statutory language currently in effect cannot be so construed.  And given that ruling, the FISC can hardly declare that “no reasonable jurist would reach a different decision” about the permissibility of continuing bulk collection—not if they want to stay on the Second Circuit’s Christmas card list, anyway.  Thus it seems potentially telling to me that the FISC issued a separate memorandum opinion dealing with the legal effect of the sunset, rather than simply bundling that in to their ultimate ruling on the underlying bulk application.  Why would they do so?

Here is one obvious explanation: Because the FISC has declined to take the 180-day escape hatch, and because they cannot plausibly invoke the “no brainer” exception, the court does intend to appoint an amicus to brief the question of whether bulk collection can continue during the six month transition window.  Since it will take time to find an appropriate party, and there’s no indication of any further bulk order being issued as yet, it seems reasonable to infer that, at present, the bulk program remains suspended.  Alternatively, the FISC may have issued a temporary order authorizing resumption of bulk collection for some quite short period, without an opinion, while it looks for an amicus and takes time to consider their arguments.   If they had in fact already issued an opinion and order reauthorizing bulk collection, after all, it would be quite strange to have issued a memorandum opinion dealing only with this narrow question, rather than bundling them all together.  Since the bulk program was disclosed, recall, the Court has made a habit of publishing its orders reauthorizing bulk collection in a reasonably timely fashion, and insofar as such an order would now be “significant” and subject to a statutory publication requirement, we should infer they will likely do so again.  Of course, since the government would want to know whether it can continue submitting applications for standard (non-bulk) §215 orders under the Patriot Act “relevance” standard, it would make perfect sense to release an opinion dealing with that specific question pending resolution of the bulk question.

Short version: I think we can infer from the opinion published today that the FISC is seeking an amicus to brief it on the potential continuation of bulk telephony collection during the USA Freedom transition period.  We can further infer that bulk collection likely either remains suspended or has been reauthorized on a strictly temporary basis pending the FISC’s fuller consideration of the issue.  If those inferences are correct, we may soon have an opportunity to see what difference it makes when the FISC is, finally, hearing both sides of an argument. 

Filed under:
About the Author(s)

Julian Sanchez

Senior Fellow at the Cato Institute, contributing Editor for Reason magazine. Member of the editorial board at Just Security. You can follow him on Twitter (@normative).