Tuesday, 30 September 2003
113 Yale L.J. 179 (2003)
In a locked, windowless room with walls of corrugated steel, in a restricted area of a Justice Department building in Washington, sits the Foreign Intelligence Surveillance Court (FISC). Conducting proceedings completely hidden from the public, as mandated by Foreign Intelligence Surveillance Act (FISA) of 1978, the FISC grants government agents permission to surveil targets if there is probable cause to believe they are foreign powers or agents of foreign powers. The FISC is accustomed to approving each government request it receives, but on May 17, 2002, it issued an order stating that the Department of Justice (DOJ) had overstepped its bounds by promulgating surveillance procedures that gave prosecutors too much supervisory authority over intelligence investigations. The DOJ insisted that its procedures were in accordance with the FISA amendments passed with the USA PATRIOT Act, and filed the first ever appeal to the Foreign Intelligence Surveillance Court of Review, a panel of three senior federal circuit court judges appointed by Chief Justice Rehnquist. The court handed down In re Sealed Case, reversing the FISC order and affirming the legitimacy of the new DOJ procedures and the USA PATRIOT Act amendments. In late March 2003, the Supreme Court declined to reconsider the decision.
The USA PATRIOT Act has virtually eliminated the specialized intelligence-gathering function of FISA orders; they now can be used with the specific purpose of obtaining evidence to be used in criminal prosecutions, as long as this is not the sole purpose of such investigations. Additionally, prosecutors and intelligence officials may now consult over FISA warrant application and execution. A FISA warrant has become little more than a regular Title III warrant issued secretly with no required showing of probable cause of criminal activity. In view of these significant changes, the FISC retains little unique jurisdiction. The FISC's secret, perfunctory procedures no longer provide constitutionally adequate protection for surveillance targets who will be unknowingly investigated and prosecuted as a direct result of its orders, especially now that FISA surveillance may be used specifically for criminal--and not simply intelligence-gathering--investigations.
The best way to revive the constitutional viability of foreign intelligence surveillance is to forego the FISA warrant procedure entirely and rely on regular Article III courts to guarantee the reasonableness of such searches if challenged. Such a change in process would allow law enforcement authorities more flexibility in pursuing foreign intelligence investigations, since no pre-investigatory warrants would be required, but would also allow for greater protection of the civil liberties of those investigated, since the standard of review would not be simply whether the target is an agent of a foreign power, but whether the search was conducted in a reasonable manner, in conformance with the Supreme Court's Fourth Amendment jurisprudence. Warrantless foreign intelligence surveillance would be admissible in criminal prosecutions, but only if such surveillance were determined to be reasonable in post hoc adversary proceedings.
My proposal is not to give the DOJ a blank check to investigate anyone, anytime, anywhere; such a regime would cause the kind of backlash that prompted the passage of FISA in the first place. Rather, if warrantless foreign intelligence surveillance is going to succeed in the twenty-first century, strict executive and legislative branch internal review procedures are necessary. Prosecutors will have to give targets of warrantless operations notice when such investigations are concluded, allowing targets to contest the surveillance in Article III courts. Such a change would benefit all parties involved. The DOJ would enjoy greater freedom in conducting investigations, as it would not have to procure judicial warrants and could act rapidly to investigate time-sensitive threats. At the same time, the entire process would be removed from the supersecret domain of the FISC, making the Attorney General publicly and politically accountable for his orders, allowing targets more opportunities to challenge investigations, and requiring Article III courts to closely examine the constitutionality of warrantless surveillance when targets so desire.
In this Note, I first briefly discuss the reasons for the passage of FISA and the establishment of the FISC, including the past and current workings of the FISC as an institution and its questionable constitutionality even before the USA PATRIOT Act amendments. I then explain how the USA PATRIOT Act and In re Sealed Case have damaged the usefulness and legitimacy of FISA and the FISC. Finally, I make the case for the abolition of FISA and the appropriateness of warrantless searches as the standard in foreign intelligence cases.
Tuesday, 30 September 2003
113 Yale L.J. 219 (2003)
Lawyers surely understand sacrifice. The business of representation requires a willingness to subjugate, at least temporarily, one's own priorities, beliefs, and comforts to those of another. Today, that willingness is tested and demanded with unprecedented force. Corporate litigators toil around the clock to perfect their clients' cases. Public defenders stagger under the heaviest caseloads their mandate and conviction will permit. In nearly every legal market, heightened competition has tipped the balance of power toward clients and caused practitioners to surrender more of their autonomy and time.
Examined more closely, however, the increasingly routine actions of attorneys are only sacrifices in a certain sense of the word--they are the exchange of one thing for something else. Corporate lawyers are richly compensated. The public defender's reward is in a different but no less valuable currency. In either case, the aggregate benefits that accrue to the lawyer roughly compensate her for her costs. This is a truism of the rational-actor school of economics, and there is no reason to suppose it does not generally prevail.
There is another brand of sacrifice, less common but equally familiar, perfected by American litigators of the last century: the representation of a worthy but unpopular cause or group. John Quincy Adams was an early exemplar; Clarence Darrow, Charles Houston, and others belong in the same category. But note that each of these names is well-known to us. Many of them were famous before their landmark efforts, but in no case--and this seems generally true of lawyers who take similar stands--were their careers damaged or derailed by their "sacrifice." The notoriety of an unpopular case, successfully defended, redounds to the defender at least in magnitude. Then, as popular opinion catches up to the moral or legal vanguard, the pioneers are vindicated, lionized, and ultimately rewarded.
None of this is meant to demean the actions, accomplishments, or intentions of either everyday or exemplary lawyers. Those who do good, be it good work or good works, should be rewarded. Besides, the willingness to act on another's behalf, whatever the expected reward, requires at least a modicum of humility. Most poignantly, the civil society in which we now live testifies to the worthy sacrifices that lawyers as a class of professionals have made.
But these sacrifices, although critical to our understanding of what a lawyer is and should be, are not the type that I propose to discuss here. The incentives to work harder for a client, or to take on a worthy cause, are well established and well understood. Such sacrifices are rational and, above all, they are human--the kind of sacrifice in which I am interested is arguably not. My subject is vicarious sacrifice, the relinquishment by one person of a right or good for the sole benefit of someone else. Within that category, I focus on substitutionary sacrifice--the imposition of oneself in the place of another. More specifically still, this Note examines the voluntary assumption by one person of the cost or penalty attributable to the other.
With this last qualification, I touch on another concept generically familiar to lawyers--atonement. In its most colloquial sense, atonement simply means repayment, and as such, the law customarily demands atonement for its breach--through compensatory damage awards, for example. There is, however, a deeper and more technical understanding of the word. Theologians and religious ethicists have defined atonement as a complex process encompassing some or all of repentance, apology, reparation, penance, and forgiveness. The goal toward which this progression aims is not merely the repayment of an outstanding debt, but the complete restoration of the preexisting relationship. Accordingly, atonement demands a willingness from the injured and the injurer to recognize both the harm that has been caused and the sufficiency of the remedy. It ultimately seeks to blot out the existence--and all recollection of the existence--of the injury.
Several legal commentators have examined the theological doctrine of atonement and applied it to various legal fields, most frequently and naturally in the area of criminal justice and the study of alternative modes of punishment. In each case, the version of atonement the scholar adopts requires that the wrongdoer initiate and participate in the atonement process. Indeed, this is the prevailing approach of the law. Justice and economics suggest we should extract the repayment from the one who has perpetrated the harm.
I do not intend to challenge that approach as a general matter. It is not, however, the model I propose to investigate here. The atonement that interests me is the payment by one person of a debt or penalty attributable to another. Stated more precisely, it is the vicarious and substitutional sacrifice by one person of her rights or goods to atone for the harm caused or debt owed by another. This description is sufficiently technical; it is not necessary for the purposes of this Note to describe fully a detailed and dogmatic version of either sacrifice or atonement. Unlike the commentators referred to above, I am not interested in systematically applying a specific doctrine to a particular field of law.
Instead, this Note seeks simply to introduce to the scholarship on legal ethics a previously foreign idea: vicarious sacrificial atonement, a theological concept I apply here to mean the satisfaction by lawyers personally of the penalties imposed as a result of their clients' violation of procedural rules during the course of litigation. I suggest that an ethic of vicarious sacrificial atonement is both a viable and a valuable aspirational norm toward which legal ethics should point. Viable because the core values served by vicarious sacrificial atonement correspond closely to those privileged by our secular legal system. Valuable because such acts of atonement, even if only isolated--even if only contemplated--could benefit the legal profession in at least three plausible and practical ways: by increasing the social and professional respect accorded to lawyers; by restoring client counseling as the focus of the attorney-client relationship; and by chilling client misbehavior, thereby strengthening the justice system for all players.
Rather than venture further into already deep water, I take a step back in Part I to examine briefly the origins and underlying values of vicarious sacrificial atonement. In Part II, I analyze a familiar ethical dilemma to determine the extent to which these concepts and values are currently embodied in the codes and norms of legal ethics. Finally, in Part III, I present in more detail some of the values, goals, and criticisms of the aspirational model alluded to above.
A caveat at the outset is in order. A full treatment of this subject is well beyond the scope of this Note and my ability. The concepts herein are drawn from philosophy, psychology, civics, religion, and many other fields (including the practice of law) in which I have no expertise. I want only to introduce the idea of vicarious sacrificial atonement in order to start a conversation among scholars with credentials better suited than mine to develop the rudimentary thoughts presented here.