Academic journal article The Review of Litigation

Controversy and Oversight: Recent Developments in 702 Surveillance and Article III Jurisprudence

Academic journal article The Review of Litigation

Controversy and Oversight: Recent Developments in 702 Surveillance and Article III Jurisprudence

Article excerpt

I. Introduction.............293

II. Brief History of FISA & Section 702..............295

A. Statutory Structure..............297

B. FISA Amendments..............301

III. FISAA Section 702: Structure & Safeguards..............302

A. Targeting Procedures..............303

B. Minimization Procedures..............304

C. FISC Review under Section 702 & Constitutional Concerns ..............305

IV. Article III Overview..............307

A. Case or Controversy Requirement..............308

B. An Uncertain Adversarial Requirement..............308

C. Standard Challenge to FISA Under Article III..............311

D. The Advisory Opinion Problem..............313

E. Potential Solutions..............315

V. Recent Developments..............317

A. Section 702 Litigation..............317

B. Judicial Opportunities..............318

VI. Conclusion..............318

I. Introduction

Of the articles establishing the three main branches of government, Article III is the shortest. In just 369 words, it outlines the role of the judiciary, establishes the Supreme Court, allows for inferior courts, grants life tenure to federal judges, and provides the only criminal definition found in the Constitution.1 Importantly, Article III also limits federal judicial power "to all [cjases ... arising under this [constitution, the [ljaws of the United States, and [tjreaties made . . . under their [authority; ... to all [cjases of admiralty and maritime [jjurisdiction; [and] to [cjontroversies to which the United States shall be a [pjarty [or] between two or more [sjtates [or] between a [st]ate and [cjitizens of another [sjtate [or] between [citizens of different [s]tates."2

Judicial power is "the power of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision."3 Cases and controversies are "claims or contentions of litigants brought before the courts for adjudication by regular proceedings established for the protection or enforcement of rights, or the prevention, redress, or punishment of wrongs."4 Essentially, cases or controversies are claims that a court is able to act upon through litigation. Article III jurisprudence has developed these basic ideas into the modem doctrines of justiciability: standing, ripeness, mootness,5 and a prohibition on federal advisory opinions.6

At the surface, these requirements seem to strictly prohibit federal exercise of judicial power in non-contentious or advisory hearings.7 But conceptual problems arise when considering other generally accepted but less obvious exercises of judicial power, such as applications for naturalization, federal benefits claims, applications for criminal warrants, bankruptcy, and declaratory judgments.8 Such proceedings are often ex parte or otherwise lack distinct adverse parties.9 The source and scope of the federal judiciary's ability to exercise power over ex parte and other noncontentious matters is the subject of some debate.10 Neither academic treatises nor the Supreme Court have resolved these conceptual problems.

This Note focuses on a modem conflict between Article III and the application of judicial power: the Foreign Intelligence Surveillance Act of 1978 (FISA),11 and its modem incarnation, the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008 (FISAAA).12 More specifically, this Note overviews the evolving role of the modem surveillance program known as Section 70213 and analyzes the vague legal framework surrounding the surveillance program by comparing Section 702 to more familiar and generally accepted exercises of Article III power. Finally, this Note argues that previously relied upon understandings of Section 702's compliance with Article III are obsolete. Regardless of the particular understanding adopted, modem courts must clearly articulate the specific legal framework that comports with the use of Article III powers in conducting Section 702 surveillance. …

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