But Congress changed that?

Right. What they did in the PATRIOT Act was say, no, that's no longer required. What the lower court said in May was there's still a legitimate concern of criminal investigations using FISA as an end run around the constitutional requirement. Therefore we don't want U.S. attorneys engaged in criminal investigations to be running and directing FISA wiretaps.

But the ruling on Monday, didn't it essentially say to the lower FISA court, you may not like the PATRIOT Act, but it is what it is?

Right, and that it's not appropriate for the lower court to be directing how law enforcement agencies structure themselves.

So it said that the FISA court overstepped its bounds?

Right.

Even though that lower court decision was signed off by all 10 FISA judges?

Correct. What's interesting is that it was signed off on by all the judges who have been involved in the nitty-gritty work of authorizing and overseeing FISA.

And they're the ones who've had the 75 misleading applications brought before them?

The irony is that the lower FISA court had never, or only once, turned down a FISA application in its 20-some-odd years. In other words, the government never had any reason to appeal because it won approval every time it went to the FISA court. What the lower court decision in May suggested was they were concerned about some of the abuses that had crept into the system, and that led them to try to rein in the use of this authority. They in turn get overturned by three judges who have never before dealt with FISAs and who have never overseen a single FISA wiretap and who were constituted this one time for this one appeal and will probably never come together again.

Was this ruling a surprise?

I think the May ruling was a surprise. The fact that judges would in any way question or reject the government's assertion of authority, particularly after Sept. 11, was the surprise. But it's hardly surprising now that three Reagan-appointed conservative federal appellate judges have given the government what it wanted in the first place.

Can this decision be appealed?

That's a good question. There's no party on the other side. The government is the only party in this case because the statute only provides for the government to have the right to an appeal [with FISA]. Ordinarily you have a party on the other side and the losing party gets to appeal. Here, the losing party is the American public at large, and they have no have particular standing before the court.

You think this is the final word?

It's very likely to be the final word.

Won't other courts have a chance to rule on it?

If the government uses FISA warrants in criminal investigations, defendants will be able to argue that it's impermissible.

What would be their argument?

In all criminal cases, warrant applications at least initially are one-sided. The government goes in and presents an affidavit to a judge. But what's different is, once the search is conducted under an ordinary search warrant or wiretap, the person is told: "Your house has been searched." That person can then challenge the constitutionality of the search. He can get access to the affidavits that supported the search. Then the court looks at the affidavit and asks if there was sufficient information to justify the warrant and it's litigated.

In the FISA context, by contrast, most people who are subjects of FISA searches never learn that they were subjected to a FISA search.

But they will if their case becomes a criminal prosecution now?

They will, but they still get no access to the warrant application. So when the FBI goes in on a criminal investigation for a warrant, they know at some point down the road their statements are going to be tested by a lawyer for the defendant who's going to be questioning the legitimacy. But now with FISA they never have to be questioned.

Theoretically, in a criminal case based on a FISA warrant, would the judge ever see the FISA warrant?

The judge would see it, but not the defense attorney and not the defendant, which is completely new to the criminal court.

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