FISA

A Few Additional Thoughts on Daoud

By Benjamin Wittes
Tuesday, June 17, 2014, 8:52 AM

I largely agree with Steve Vladeck's excellent post on Judge Richard Posner's decision yesterday in Daoud and Judge Ilana Rovner's concurrence in that decision. In particular, I agree that Judge Posner's language is too glib, his dismissal of the defense's conundrum in cases---in which lack of access to the underlying FISA application frustrates a Franks motion---too cheerful, and his willingness to reject the merits of the motion too hasty. I also agree that Judge Rovner's discussion of the Franks problem in FISA cases is thoughtful and valuable.

I have only a few additional thoughts:

First, Judge Rovner joined the entirety of Judge Posner's decision. She did not, as Steve does, merely find his result unsurprising. She sufficiently agreed with his reasoning to sign the opinion and open her own with the observation that she joined it in full. This seems to me to cast her opinion less as an alternative view of the subject than as a series of supplemental meditations upon it.

Second, it also places in a somewhat different light Judge Posner's decision not to remand the threshold Franks issue for resolution by the district court. I agree with Steve that this move looks bad. But it bears note that the same judge who writes the lengthy set of reflections on the problem that Steve praises also appears to have no problem with it that she can't overcome. That suggests, at least to me, that the underlying FISA application is really strong. And while Steve is correct that it may simply appear strong in the absence of an adversarial contest of it, that it appears strong not merely to Judge Posner but to Judge Rovner as well---even as she writes about how such appearances can be misleading---has to count for something.

Third, I don't think this issue is really resolvable. At the end of the day, the choice here is pretty binary: is defendant's counsel in the FISA context going to be in the same position as defendant's counsel in the context of non-FISA surveillance or not? The answer is necessarily no. As Judge Rovner points out, even disclosure of the FISA material to counsel would not fully resolve the problem, as counsel would not be allowed to discuss the classified material with the client. The only way one could fully resolve the defense's conundrum would be to declassify the FISA application and disclose it. Were that the cost of bringing a criminal case, the government simply would not do so in many instances.

The consequence is that we live with the somewhat minimalist conception of the Franks challenge. This consequence disquiets Judge Rovner even as she signs Judge Posner's opinion. Her sensibility on this score strikes me as just about right---disquieted but ultimately without an obvious alternative.