FISA vs the Constitution

The News Magazine of HCU

V. FISA’s secret, ex parte court system is unconstitutional under Article III

U.S. Constitution, Article III, Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;–to all cases affecting ambassadors, other public ministers and consuls;–to all cases of admiralty and maritime jurisdiction;–to controversies to which the United States shall be a party;–to controversies between two or more states;–between a state and citizens of another state;–between citizens of different states;–between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects. [Emphasis added].

The FISA Court and the FISA Court of Review are unconstitutional because they violate the “case or controversy” requirement of Article III. Federal courts are courts of limited jurisdiction. They can only hear those cases that the Constitution authorizes them to hear. Kokkonen v. Guardian Life Ins. Co. of America, 511 U. S. 375, 377 (1994). The Tenth Amendment reserves all other judicial powers to the states.

The text of Article III limits the federal judicial power to actual cases or controversies. The U.S. Supreme Court established three requirements to qualify as an Article III “case or controversy” in Aetna Life v. Haworth, 300 U.S. 227 (1937). Each requirement is mandatory. Unless the legal matter meets all three requirements, the federal court has no authority to consider the matter.

Actual dispute. First, the legal matter must involve an actual dispute. “It must be a real and substantial controversy.” Aetna Life v. Haworth, 300 U.S. 227, 240-241 (1937).

Adverse parties. Second, the legal matter must involve adverse parties. It must “touch the legal relations of parties having adverse legal interests.” Aetna Life v. Haworth, 300 U.S. 227, 240-241 (1937).

Dispute capable of final judicial resolution. Third, the dispute must be capable of a final judicial resolution. “It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character.” Aetna Life v. Haworth, 300 U.S. 227, 240-241 (1937).

As explained below, the FISA Court and the FISA Court of Review fail all three “case or controversy” requirements established in Aetna Life v. Haworth. FISA’s secret, ex parte court system is therefore unconstitutional under Article III.

No actual disputes. All proceedings in the FISA Court and the FISA Court of Review fail the first “case or controversy” requirement because they do not involve any actual disputes. The FISA Court’s only jurisdiction is “to hear applications for and grant orders approving electronic surveillance anywhere within the United States.” 50 U.S.C. § 1803 (a) (1). The FISA Court of Review’s only jurisdiction is to review FISA Court denials of those applications. 50 U.S.C. § 1803 (b).

All proceedings before both FISA courts are undisputed. They merely involve unopposed applications to conduct electronic surveillance in the United States. There is no actual dispute between the federal government and any other party because FISA forbids the presence of any other party. The federal government is the only party permitted to appear before either court. 50 U.S.C. §
1881a (l).

No adverse parties. All proceedings in the FISA Court and the FISA Court of Review fail the second “case or controversy” requirement because they do not involve adverse parties. All proceedings in the FISA Court and the FISA Court of Review are ex parte. The federal government is the only party permitted to appear before either court. 50 U.S.C. § 1881a (l). The FISA Court and the FISA Court of Review forbid the presence of any adverse parties.

Furthermore, neither court allows any other party to know that the federal government has even filed an application with either court. FISA requires all petitions and submissions to be sealed. 50 U.S.C. § 1881a (l). Records of all FISA Court proceedings, all government applications for electronic surveillance, and all FISA Court decisions on those applications are secret and classified, hidden from public view. 50 U.S.C. § 1803 (c).

No disputes capable of final judicial resolution. All proceedings in the FISA Court and the FISA Court of Review fail the third “case or controversy” requirement because they do not involve any disputes capable of final judicial resolution. There are no actual disputes, no adverse parties, and no trials in the FISA Court. 50 U.S.C. § 1803 (a) (1).

Similarly, there are no actual disputes, no adverse parties, and no appeals of trials in the FISA Court of Review. 50 U.S.C. § 1803 (b). There are thus no disputes capable of final judicial resolution in any proceeding before the FISA Court or the FISA Court of Review.

Next Page >