The FISC’s Newest Opinion: Proof of the Need for an Amicus

In the first public opinion of the Foreign Intelligence Surveillance Court (FISC) since the USA Freedom Act became law, Judge F. Dennis Saylor IV ruled that the law revived the three provisions of the Patriot Act that expired at midnight on May 31. The conclusion itself is not surprising, as Julian Sanchez pointed out on Friday. More striking is Saylor’s dismissive attitude toward USA Freedom’s provision for amicus participation in FISC proceedings — and how clearly his approach demonstrates the need for such participation.

First, the legal issue: the USA Freedom Act’s changes to business records collection take effect in six months. In the meantime, the government has applied for another bulk collection order under Section 215 of the Patriot Act. That provision, however, expired at the end of May 31, and the law reverted back to its pre-Patriot Act incarnation. The FISC thus had to decide whether the USA Freedom Act, passed two days later, reinstated Section 215 at the same time it amended it.

Nothing in USA Freedom explicitly reenacts the Patriot Act’s expired provisions. As Saylor noted, however, there are no magic words that are required; what matters is “legislative intent.” There is language in USA Freedom that clearly assumes the continued validity of the Patriot Act. For instance, the new sunset provision states that on December 15, 2019, the relevant provisions of law are amended “to read as they read on October 25, 2001” — the day before the Patriot Act was passed. This language would make no sense if the law at the time of USA Freedom’s enactment was already the October 25, 2001 version. Furthermore, the changes USA Freedom makes to business records collection are pegged to the Patriot Act’s language, not the language of the pre-Patriot Act law.

Before engaging in this analysis, Saylor addressed the question of whether he must consult an amicus. The USA Freedom Act requires such consultation in cases raising “novel or significant” legal issues, unless the judge determines in writing that amicus participation is “not appropriate.” Saylor acknowledged that the case before him presented legal issues that were both novel and significant, but concluded that amicus participation generally is “not appropriate” in cases where the court “does not need the assistance or advice of amicus curiae because the legal question is relatively simple, or is capable of only a single reasonable or rational outcome.” Because he deemed the proper result in this case to be obvious, he found it “unnecessary” to appoint an amicus.

As a preliminary matter, this analysis conflates the distinct concepts of “not appropriate” and “unnecessary.” Had Congress meant to let courts decide when amicus participation was necessary, it would have made use of amici optional in all cases. Instead, it created two categories of cases: those involving novel or significant legal interpretations, for which amicus participation would be mandatory except where “not appropriate,” and all other cases, for which such participation would be optional. In regular federal courts, there are surely plenty of cases in which there is only one possible answer to the legal question presented, yet no one would suggest that having the losing side’s attorney present in the courtroom is “not appropriate.”

In any event, even if Saylor were correct that USA Freedom does not require amicus participation where the court deems it unnecessary, he was far too quick to reach that conclusion here. While Saylor’s interpretation of Congress’s intent may be reasonable, it is certainly not the only plausible interpretation. An alternative reading of the language on which Saylor relies — one that is amply supported in the legislative history — is that the bill’s drafters expected the legislation to pass, if at all, before the Patriot Act expired. The drafters therefore assumed that the Patriot Act would still be in place at the time of enactment. This assumption, however, says nothing about what Congress’s intent was once circumstances proved to be otherwise. Expectation and intent are not the same. While Congress did not amend USA Freedom after the Patriot Act provisions expired to remove the language assuming their viability, it also did not amend USA Freedom to make clear its intent to revive them.

There is also the fact that Senate, only a week and a half before it passed USA Freedom, rejected a bill that would have extended the Patriot Act for a two month period, with 45 votes for the measure and 54 votes against. Any argument that Congress intended to restore the Patriot Act for a six month period must contend with this evidence that the Senate was opposed to even a two month extension. The seeming inconsistency may be resolvable, but it certainly removes the legal issue faced by the FISC from the “no-brainer” category (which is where I part ways with Julian’s analysis).

In short, Congress may have intended to create an amended version of the Patriot Act, but not to permit the existing Act to continue beyond the sunset (most likely because of concerns about Section 215 bulk collection). If that is in fact the case, then giving effect to legislative intent would mean reverting to pre-Patriot Act law for the next six months and then implementing the revised version of the Patriot Act created by USA Freedom. The new law’s references to the expired Patriot Act provisions, which serve as the base language for USA Freedom’s amendments, would simply be read as references to the Act as it existed before midnight on May 31, 2015 (thus addressing the textual problem noted in these pages by Megan Graham). This requires reading between the lines, but so does the conclusion that Congress implicitly reenacted a contentious lapsed statute. This requires reading between the lines, but so does the conclusion that Congress implicitly reenacted a contentious lapsed statute.

Saylor’s opinion does not mention the Senate’s vote against a short-term reauthorization, or the possibility that USA Freedom’s references to the Patriot Act reflect assumptions that proved false rather than affirmative intent. Incredibly, Saylor does not acknowledge, let alone address, any possible argument on the other side. His opinion thus marks a shift from previous opinions released by the FISC post-Snowden, which have at least made a show of entertaining and refuting potential counter-arguments, albeit in a somewhat cursory fashion.

Opponents of USA Freedom’s amicus provision argued that adversarial proceedings were unnecessary because the FISC judges themselves would push back against the government’s arguments. The judges, they claimed, were fully capable of probing weaknesses in the government’s case even if no attorney was there to point them out. Saylor’s opinion disproves that theory. His failure to weigh any potential opposing arguments is simply bad judging. Had an amicus been there, he could not have gotten away with it.

Moreover, Saylor’s overall hostility to the amicus provision bodes ill. In an unnecessary footnote, he theorizes that involving amici might not be appropriate if doing so would necessitate expense or cause delay. The unspoken import is that amici are inappropriate in simple cases because they are unnecessary, and they are inappropriate in complex cases because they will use up time and money.

Future decisions will reveal whether other FISC judges are equally unfriendly to — and equally in need of — amicus participation. But if Saylor’s opinion is any indication of things to come, Congress may need to revisit the amicus provision to make it fully mandatory in all novel or significant cases. 

About the Author(s)

Elizabeth Goitein

Co-Director of the Liberty & National Security Program at the Brennan Center for Justice, Former Counsel to Sen. Russ Feingold Former Trial Attorney in the Federal Programs Branch of the Civil Division of the Department of Justice You can follow her on Twitter (@LizaGoitein).