Split Tenth Circuit Holds That FISC’s Pre-Clearance Rulings Under Section 702 Program Are Not “Advisory Opinions” in Violation of Article III

As part of a 170-page decision (with a 48-page dissent) affirming a criminal conviction for conspiring and providing material support to a State Department-designated foreign terrorist organization, United States v. Muhtorov,  No. 18-1366 (10th Cir. Dec. 8, 2021), the panel divides over whether annual preapproval of surveillance procedures by the Foreign Intelligence Surveillance Court (FISC) constitute advisory opinions in violation of Article III.

The FISC is a federal court established by the Foreign Intelligence Surveillance Act of 1978 (FISA) that oversees requests for surveillance warrants against foreign agents inside the United States. Under what is known as the § 702 program (50 U.S.C. § 1881a), the FISC—rather than issue individualized warrants like ordinary federal courts—“approves procedures in advance under which the government conducts warrantless foreign intelligence surveillance.”

Section 702 “broadens wiretap authority to allow warrantless surveillance of foreign targets reasonably believed to be overseas even if they may be communicating with people in the United States so long as the ‘purpose’ is not to ‘target a particular, known person reasonably believed to be in the United States.’” Significantly for purposes of the opinion, the FISC annually preapproves “procedures used to conduct the warrantless surveillance as reasonably designed to target foreigners outside the United States and to minimize the risk of surveilling United States persons.”

Defendant Muhtorov challenged the Section 702 surveillance used in his case, principally on Fourth Amendment grounds, but also because the preapproval procedure (as the defendant argued) “requires FISC judges to issue advisory opinions addressing the constitutionality of abstract procedures in the absence of concrete facts.”

The panel majority rejects this challenge to the Section 702 program. “We acknowledge that FISC’s Section 702 role does not conform to traditional notions of Article III adjudication. But on close inspection, its Section 702 role is constitutional because the FISC applies legal principles to facts and its Section 702 determinations are not merely advisory but instead have immediate and legally consequences.”

“First, the FISC applies ‘principles of law’ to ‘facts.’ . . . . It must examine the detailed factual submissions of the government—the proposed targeting, minimization, and querying procedures—to ensure compliance with Section 702 and applicable constitutional provisions . . . . It determines whether the government’s proposed procedures, which are revised each year and embody specific approaches to targeting, minimization and (as of 2018) querying, comply with Section 702 and the Constitution.” In sum, Section 702 pre-clearance rulings “are grounded in evidentiary submissions, not abstract and hypothetical questions.”

“Second, the FISC’s decision to grant, deny, or modify the government’s proposed Section 702 procedures has immediate consequences that are legally binding on the executive. The FISC can approve the procedures and authorize acquisitions under § 1881a(j)(3)(A), or it can direct the government to correct deficiencies or ‘cease, or not begin, the implementation of the authorization for which such certification was submitted’ under § 1881a(j)(3)(B). If authorized, the AG and DNI can immediately direct an electronic communication provider to comply with an authorization under § 1881a(i)(1), which providers can then challenge under § 1881a(i)(4). Without pre-authorization or a relevant exception, any surveillance is unlawful under the statute.”

The panel majority also rejects a related separation-of-powers challenge to Section 702, i.e., that the FISC is assuming an administrative function in the nation’s intelligence apparatus. “Section 702 is consistent with the separation of powers. FISC orders stem from judicial balancing of national security and individual privacy interests. The political branches, legislating in service of our national security, conferred this judicial responsibility on the FISC . . . . Section 702, which preserves the FISC’s role in placing judicial limits on foreign intelligence surveillance, does not encroach on the traditional prerogatives of the executive because the oversight of foreign surveillance has been a peculiar function of the judiciary, and the FISC in particular, for many decades.”

Judge Lucero dissents. He would hold that the FISC’s annual reviews indeed violate Article III, but that this conclusion does not “necessarily invalidate[] the entire § 702 program.” Instead, as a means of rescuing the program’s constitutionality, he “would insist that the Fourth Amendment reasonableness determination” apart from the FISC’s pre-clearance “be accomplished de novo when an actual case is presented to an Article III court. This determination must be a true de novo evaluation, with no deference given to the FISC determinations of whether the § 702 program is ‘consistent with the statute and the Fourth Amendment’….”