Brief for Amicus Curiae National Association of Criminal Defense Lawyers in Support of Appellant and Urging Reversal.
Argument: Without disclosure of the underlying FISA materials, it is impossible to argue under Franks v. Delaware, 438 U.S. 154(1978), that the application contains material misstatements or omissions, and courts have no means of conducting the investigation necessary to make that determination themselves. Without disclosure, defendants cannot argue concretely that the government did not properly minimize the fruits of the surveillance, or that the government did not satisfy the requirement that it exhaust other, less intrusive investigative techniques before turning to FISA. Nor can defendants counter government arguments (typically presented ex parte under § 4 of the Classified Information Procedures Act (CIPA), 18 U.S.C. App. 3 § 4) that the fruits of particular surveillance techniques are too attenuated from the trial evidence to require disclosure. And without notice of particular surveillance techniques that the government used, a defendant cannot argue that, under the circumstances of the case, those techniques violate the Fourth Amendment or another constitutional or statutory protection. As appellant argues, Congress never intended FISA litigation to occur entirely ex parte. Courts have misinterpreted 50 U.S.C. § 1806(f), the statute's disclosure provision. And as we discuss below, the Fifth Amendment Due Process Clause for bids such a secret, one-sided process, under which defendants are routinely denied the information necessary to challenge the lawfulness of government surveillance. No other aspect of criminal law functions entirely in secret; search warrants and Title III wiretap orders are issued ex parte, but after indictment a defendant gets access to the warrant or order and supporting application and a full and fair opportunity to challenge both. It is past time for FISA litigation to meet the standard of fairness that is the hallmark of American law.