United States District Court, D. Massachusetts
ORDER AND MEMORANDUM
WILLIAM G. YOUNG DISTRICT JUDGE.
comprehensive and thorough review of the classified materials
filed in this case, this Court rejects each of the
contentions raised by the defendant Wright and denies each of
his motions (ECF Nos. 87, 103, 104, 105, 106) challenging
such investigatory procedures. This action thus confirms the
denial of the motions to suppress (ECF Nos. 103, 104, 105,
106) already provisionally denied after hearing.
reaching this result, the Court has followed the better
practice and conducted its own de novo review, according no
weight to the prior actions of the FISA judge(s). Although
some courts have noted that "FISA warrant applications
are subject to 'minimal scrutiny by the courts, ' . .
. upon . . . challenge, " United States v.
Abu-Jihaad, 630 F.3d 102, 130 (2d Cir. 2010) (quoting
United States v. Duggan, 743 F.2d 59, 77
(2d Cir. 1984)), others have applied a heightened scrutiny -
reviewing the FISA Court's probable cause determinations
de novo, see, e.g., United States v.
Turner, 840 F.3d 336, 340 (7th Cir. 2016); United
States v. Rosen, 447 F.Supp.2d 538, 545 (E.D. Va. 2006)
. The reasoning for applying a more stringent standard is
persuasive, "especially given that the review [of a FISA
warrant application] is ex parte and thus unaided by
the adversarial process." Rosen, 447 F.Supp.2d
at 545 (collecting Fourth Circuit precedents applying de
novo review to FISA materials). The certifications in
the FISA application(s), however, are presumed valid. See
appropriate to remark that this de novo review
reveals that the government attorneys here have throughout
acted with scrupulous regard for the rights of the defendant
Wright and have conducted themselves with utmost fidelity
within the limited powers accorded them under the Foreign
Intelligence Surveillance Act, 50 U.S.C. §§
1801-85. It is equally appropriate to observe that
almost no one will believe me.
this sad state of affairs? It is an amalgam of the
government's seemingly obsessive over classification
coupled with the media's shallow reporting and an equally
shallow public awareness of or interest in what is actually
over classification - no one disputes the government's
appropriate interest in the classification of actual
intelligence data. Here, however, the government has thrown a
cloak of secrecy over the most basic procedures of the FISA
Court. The result has not been to enhance the authority of
that court but rather to call its judgments into question and
to treat its important functions with a certain disdain.
See, e.g., Mystica M. Alexander & William P.
Wiggins, A Domestic Consequence of the Government Spying
on Its Citizens: The Guilty Go Free, 81 Brook. L. Rev.
627 (2016); Scott A. Boykin, The Foreign Intelligence
Surveillance Act and the Separation of Powers, 38 U.
Ark. Little Rock L. Rev. 33 (2015); Maxwell Palmer, Does
the Chief Justice Make Partisan Appointments to Special
Courts and Panels?, 13 J. Empirical Legal Stud. 153
(2016); Karly Jo Dixon, Note, The Special Needs Doctrine,
Terrorism, and Reasonableness, 21 Tex. J. C.L. &
C.R. 35, 47-57 (2015). Reducing the classification of
procedural safeguards imposed by the FISA Court would go a
long way toward restoring confidence in its decisions.
months ago, I heard on the radio that the FISA Court had
never turned down a government warrant application.
"This can't be true, " I thought, since over
the past three years I had never once granted a single Title
III wiretap application in the form sought by the government.
"If it is, " I thought, "that court is in the
bag with the executive branch."
having exercised judicial authority within FISA's
precincts, I am prepared to acknowledge how shallow was my
reaction. Here, in relevant part, is the actual report made
by the Department of Justice pursuant to sections 107 and 502
During calendar year 2015, the Government made 1, 499
applications to the Foreign Intelligence Surveillance
Court (hereinafter "FISC") for authority to conduct
electronic surveillance and/or physical searches for foreign
intelligence purposes. The 1, 499 applications include
applications made solely for electronic surveillance,
applications made solely for physical search, and combined
applications requesting authority for electronic surveillance
and physical search. Of these, 1, 457 applications included
requests for authority to conduct electronic surveillance.
One of these 1, 457 applications was withdrawn by the
Government. The FISC did not deny any applications in whole,
or in part. The FISC made modifications to the proposed
orders in 80 applications. Thus, the FISC approved
collection activity in a total of 1, 456 of the applications
that included requests for authority to conduct electronic
2016 Att'y Gen. Ann. Rep. 1-2. The government appears to
refrain from formally submitting to the FISA Court
applications it doubts that court will accept and, even then,
80 such formal submissions were substantially modified
(probably narrowed). This is not so different from my own
practice of reviewing draft warrant applications and sending
them back to be narrowed where appropriate - all before
formal application is made (and counted).
surprisingly, the press reports simplified things. Here is a
representative sample: "US spy court rejected zero
surveillance orders in 2015." Dustin Volz, U.S. spy
court rejected zero surveillance orders in 2015, Reuters
News, May 2, 2016,
In fairness, the seventh paragraph of this story stated
"The court modified 80 applications in 2015, a more than
fourfold increase from the 19 modifications made in
2014." Id. This crucial seventh paragraph,
however, appears not to have made it onto the airwaves, thus
eliminating the important nuance.
for the same year, the Administrative Office of the United
States Courts says simply, "[Nationwide] [n]o wiretap
applications were reported as denied in 2015." Admin.
Office U.S. Courts, Wiretap Rep. 2015, Dec. 31,
It is only when one looks at the accompanying tables that it
is revealed, for example, that of the 25 wiretap warrants
authorized in 2015 in the District of Massachusetts, a full
40% were amended, i.e. almost certainly narrowed by
the presiding judge. See id. at Wire 2.
respecting privacy and national security concerns, the
obligation appears to devolve upon the courts themselves to
explain - both case by case and in the aggregate - how daily
they patrol the boundaries of the Fourth Amendment to our
Constitution. The press will not publish, broadcast, or
analyze the fine print. To continue as we are is to deny our
citizens an ...