Tag Archives: search and seizure

FISA in the time of Cholera

gman

I recently came across a Yale Law Journal Note from 2003 entitled Leaving FISA Behind: The need to return to warrantless foreign intelligence surveillance. It is brilliantly researched and worth the read for the footnotes alone. I utterly disagree with its underlying sentiment, although not necessarily the mandate of its title.

FISA is a statutory mechanism, designed by congress, to entrench the footnoted warrant exception for national security espoused in Katz v. United States, 389 U.S. 347 (1967). By virtue of the FISA laws, domestic surveillance conducted for national security reasons involving foreign powers or their agents is reviewed by a 21st century star chamber, a tribunal of three that meets in secret within the DOJ in D.C. and determines whether or not to issue a FISA warrant with only pro forma appellate review. The standard is a watered-down version of probable cause. The court’s actions are functionally isolated from criminal discovery, and are generally unknowable. Because of these peculiarities, it is difficult to even trust the government when it represents that no FISA material was utilized in apprehending or prosecuting a defendant. After all, that is what you’d say if you’re tasked with protecting the reasoning of a secret tribunal and the existence of a secret warrant.

The article’s conclusions are necessarily naive. The article predates Edward Snowden, the Darkest of the Iraq war scandals, the abuses of the CIA in Guantanamo and black sites, changes to the text of the Patriot Act in 2015, and the election of Donald Trump. I feel that the author’s first conclusion – that the authorization of these questions should return to Article III courts – is perfectly valid. Such a shift would end a practice that, I feel, violates the right to an open court, and improve the chances of meaningful judicial review of Fourth Amendment challenges in the courts. The author’s second conclusion, however, I cannot endorse. Given the “red tape” and “procedural hurdles” that Article III warrant applications typically require, the author suggests that such surveillance be conducted without a warrant, subject only to a reasonableness inquiry. While she is correct that the warrant requirement has eroded beyond recognition, it is foolish to believe that the answer should be to lessen the burden on the government moving forward. Yes, the Freedom Act made some useful modifications to the FISA rules, but these modifications were largely half measures. For example, Section 301 of the Freedom Act prevents the use of evidence obtained by means of “deficient” procedures from being received in a trial, but the question of deficiency is still largely not subject to review outside of the FISA court system. Although this system is more transparent now than it was in 2003, it lacks the robustness of true appellate review.

Better to end FISA entirely, as the author suggests, and subject all foreign surveillance to the same strictures as Title III wiretaps.

Leaving FISA Behind: The Need to Return to Warrantless Foreign Intelligence Surveillance

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Nemo Me Impune Lacessit

By day, I work as a criminal defense lawyer. The other day, in the course of my professional duties, I had to take a stroll by the San Antonio Police Department headquarters on Cesar Chavez Street (the road once went by the moniker “Durango Street” which I though had a better ring to it). Near the main civilian entrance, I happened upon an inscription:

“Nemo me impune lacessit.” 

A life long Latin lover, I couldn’t help but smile.  The phrase has murky origins in Antiquity, although it later became the motto of the Scottish order of chivalry – the Order of the Thistle. Translated, the phrase means “No one challenges me with impunity.”

The phrase strikes me as an odd choice for an American police department decoration.  Ultimately however, I’ve concluded that a historical disagreement in the translation of the  Latin verb Lacessit fated the SAPD to become the butt of a beautifully ironic joke. 

In the United States, the phrase has taken on another meaning. It is frequently worn by law enforcement as a sign of mourning or solidarity after an officer is killed on duty.  The sense in which American police use the phrase is “no one can harm me unpunished.” I think that a closer scrutiny of the Latin rejects this translation.

The word “Lacesso” is defined as “to excite, provoke, challenge, exasperate, or irritate. A Latin Dictionary 1026, Ed. Lewis and Short,  (Oxford 1879). A fine example of its literal usage can be found in Cicero’s defense of Titus Annius Milo in 52 BC.   Pro Milo 31, 84, Marcus Tullius Cicero, Ed. Albert Clark (1918) (perhaps the finest, albeit long winded, closing argument in a self-defense murder trial the criminal defense bar will ever know). Cicero’s use of the word connotes physical violence; however, on a deeper level, the word’s placement indicates that such a “challenge” is more than an angry brawl – it implies a degradation of freedom or of self-determination:

That divine power; that very same divine power which has often brought incredible prosperity and power to this city, has extinguished and destroyed this mischief; by first of all inspiring it with the idea of venturing to irritate by violence and to attack with the sword the bravest of men, and so leading it on to be defeated by the man whom if it had only been able to defeat it would have enjoyed endless licence and impunity.

Id. In this context, it implies a certain degree of metaphysical naughtiness on the part of the actor that suggests his comeuppance will flow from divine providence rather than State action.  I think it is this connotation of the morally repugnant irritant that inspired the Scottish Order of the Thistle to adopt the word into its motto.  The code of chivalry is enforced not merely by the sword, but by virtue of its moral superiority. 

The chivalric mentality arrived in America with a considerable amount of damage in the shipping process.  The word doesn’t get much airplay outside the context of the occasional opening of a door for a woman going into the bank, but the sanctity of the individual which lies at the heart of chivalry spread into the thoughts and precepts of our nation like wildfire.  The democratization of chivalry can be tied directly to the thought processes of Locke and Rousseau, Franklin and Jefferson. In essence, as the bourgeois adopted the parlance of the landed gentry, the individual grew to believe that he could and should police himself; his internal motivation to preserve his honor, it was believed, would trump the external pressures of life that trend toward the vulgar.  Does this theorem work in practice? Yes and no.  People are, as they have always been, a rather nasty lot. But the idea of chivalric honor and individual service to others does seem to gently prod the human race in the right direction.  As the motto at the heart of this article implies, the karmic consequences of the alternative serve as a decent incentive.

Before the poor reader begins to smell a digression, it would be best to return to the central premise discussed above – irony.  The problem I find with the SAPD’s use of this inscription comes from my love of the individual and my disillusionment towards institutions – Law enforcement institutions in particular.  Usually, when the police adopt a slogan, its quite easy to smirk or ridicule. “Serve and protect” might be more adequately phrased “search and seize” or “arrest and obfuscate,” particularly if we are polling those who most frequently come into contact with the police.  This Latin motto is something entirely different. The more careful translation suggests that it is a slogan of individual liberty, a warning to tyrants; however, the Department’s approach suggests a more “no one challenges the authority of the state” slant to the quotation.  If Caesar in all of his imperial zeal coined this phrase, I can only imagine that he would have approved the SAPD’s choice. The phrase that worked as a badge of honor for the individual has now become a cold inscription on the Ministry of Love.

Some might contend that this is too harsh. The injury threatened against those who serve in the police force is real and terrifying, and the phrase (as the department uses it) promises vengeance to those that would do an officer harm. On its face, this is not an unreasonable point of view.  The tragedy of the matter, however, is the “us v. them” mentality such a slogan implies.  When those in law enforcement view its citizenry as “the other,” serious problems lie in ambush.  It is injury to the law that the police must protect; the physical toll of wrongdoing cannot be undone.  The only true preventative measure for that deep of an injury lies in education and in compassion for the individual. To achieve those ends, we must police ourselves. Placing too much stock on the authority of governmental institutions to police us works only to deny the individual his freedom and dignity.

At the most basic level, this means holding law enforcement accountable when it begins to “lacesso.” Michelle Alexander’s book “The New Jim Crow” studiously documents the culture of perjury rampant amongst police departments in this country.  Is this how departments apply the concept behind this ancient phrase? Brutality, botched arrests, disregard for the privacy rights of citizens; are these not injuries which must be thwarted before they are committed with impunity? Institutions should be challenged. When the police look on the challengers with contempt or aggression, the proof of their folly now hangs above the door to the department. Perhaps, with the help of men like Cicero, we can requisition this phrase from our captors and carry it as our own battle standard.

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