Order Code RL34600
Retroactive Immunity Provided by the FISA
Amendments Act of 2008
July 25, 2008
Edward C. Liu
American Law Division
Retroactive Immunity Provided by the FISA
Amendments Act of 2008
On July 10, 2008, P.L. 110-261, entitled the FISA Amendments Act of 2008,
was signed into law. Although many of the changes enacted by the FISA
Amendments Act were controversial, one particularly contentious issue was whether
to grant retroactive immunity to telecommunications providers that may have
facilitated warrantless surveillance by the federal government under a Terrorist
Surveillance Program between 2001 and 2007. Proponents of retroactive immunity
argued that it was necessary to assure private cooperation with critical intelligence
investigations. On the other hand, opponents of retroactive immunity argued that its
inclusion undermined the statutory penalties that were designed to deter unlawful
intrusions into individual liberties. This report discusses the various retroactive
immunity mechanisms that were proposed to be included in the FISA Amendments
Act, one of which was ultimately adopted, and their likely effect on lawsuits facing
Retroactive immunity is more than simply protection from liability; it can also
act as protection from the cost of litigation. Without retroactive immunity, many
legal issues would need to be addressed, possibly at great expense, in order to resolve
these lawsuits. The plaintiffs would need to show that the actions of the defendants
were not lawful. The Bush Administration’s theory of inherent wiretapping ability
might need to be litigated. Additionally, the applicability of the state secrets
privilege to these cases might be the subject of litigation.
As enacted, the FISA Amendments Act lays out a procedure for the Attorney
General to bring about the dismissal of lawsuits alleging unlawful participation in the
Terrorist Surveillance Program (TSP). In order for a suit to be dismissed by a court,
the Attorney General must certify that the defendant provided assistance in
connection with the TSP and was given written assurances that the program was
authorized by the President and determined to be lawful. The Attorney General could
also certify that the alleged assistance was not in fact provided by the defendant. All
parties are permitted to submit documents and arguments relevant to dismissal which
the court may consider. Dismissal is only proper if the court finds, based upon its
review, that the Attorney General’s certification is supported by “substantial
The Terrorist Surveillance Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Issues Raised by Civil Actions Against Telecommunications Providers . . . . . . . 3
Lawfulness Under the FISA and Title III . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Executive Authority and the Authorization for Use of Military Force . . . . . 4
The State Secrets Privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Retroactive Immunity Under the FISA Amendments Act of 2008 . . . . . . . . . . . . 7
Alternative Retroactive Immunity Proposals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Senate Amendment to H.R. 3773 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Proposed Amendments to H.R. 6304 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
S.Amdt. 5059 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
S.Amdt. 5060 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
S.Amdt. 5066 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Comparison of Retroactive Immunity Provisions . . . . . . . . . . . . . . . . . . . . . . . . . 9
Timing of Certifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Standards of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Abuse of Discretion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Substantial Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Retroactive Immunity Provided by the FISA
Amendments Act of 2008
In November of 2007, the House of Representatives passed H.R. 3773, the
RESTORE Act, which would have amended several provisions of the Foreign
Intelligence Surveillance Act (FISA). In February of 2008, the Senate passed an
amendment in the nature of a substitute to H.R. 3773. The Senate amendment
included, among other things, a provision allowing the Attorney General to seek the
dismissal of civil lawsuits brought by private citizens against telecommunications
providers that may have assisted the federal government in carrying out warrantless
electronic surveillance. In March of 2008, the House responded by passing a third
version of H.R. 3773 removing the retroactive immunity provisions, but later passed
a compromise bill, H.R. 6304, in June. H.R. 6304 included a variation on the
retroactive immunity provisions of the Senate’s version of H.R. 3773. In July of
2008, the Senate passed H.R. 6304, also titled the FISA Amendments Act of 2008
(FISA Amendments Act), without modification, and the President subsequently
signed it into law.1 This report discusses the effect of the retroactive immunity
provided by the FISA Amendments Act on lawsuits alleging unlawful electronic
surveillance by telecommunications providers under a Terrorist Surveillance Program
(TSP) between 2001 and 2007.
The Terrorist Surveillance Program
In late 2005, the New York Times reported that the federal government had
“monitored the international telephone calls and international e-mail messages of
hundreds, perhaps thousands, of people in the United States without warrants.”2
Subsequently, President Bush acknowledged that, after the attacks of September 11,
2001, he had authorized the National Security Agency to “intercept international
communications into and out of the United States” by “persons linked to al Qaeda or
related terrorist organizations” based upon “his constitutional authority to conduct
warrantless wartime electronic surveillance of the enemy.”3 The revelation of the
existence of the TSP aroused controversy because it appeared to run afoul of the
general rule4 that electronic surveillance by the federal government is unlawful unless
FISA Amendments Act of 2008, P.L. 110-261 (July 10, 2008).
James Risen and Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, NEW YORK
TIMES, Dec. 16, 2005, at 1.
U.S. DEP’T OF JUSTICE, Legal Authorities Supporting the Activities of the National Security
Agency Described by the President, at 5, 17, Jan. 19, 2006, available at
The “procedures in [Title III of the Omnibus Crime Control and Safe Streets Act] and the
conducted pursuant to the Foreign Intelligence Surveillance Act (FISA)5 or Title III
of the Omnibus Crime Control and Safe Streets Act (Title III).6 In contrast, the Bush
Administration’s position has been that such warrantless surveillance is lawful under
the President’s constitutionally granted authority and the Authorization for Use of
Military Force (AUMF) enacted by Congress in 2001.7
On Jan 17, 2007, a letter from the Attorney General to Congress indicated that
“any electronic surveillance that was occurring as part of the Terrorist Surveillance
Program [would] be conducted subject to the approval of the Foreign Intelligence
Surveillance Court.” Now discontinued, the TSP appears to have been active from
shortly after September 11, 2001, to sometime in January of 2007.8
Dozens of lawsuits have been filed by private citizens and interest groups
alleging various statutory and constitutional violations by the telecommunications
companies that participated in the TSP.9 The debate over retroactive immunity is of
central importance to these cases, as it would likely render any litigation of the
underlying legal issues moot.10 On August 2, 2007, the Director of National
Intelligence (DNI) stated that “those who assist the Government in protecting us from
harm must be protected from liability,” specifically “those who are alleged to have
assisted the Government after September 11, 2001 and have helped keep the country
safe.”11 Proponents of retroactive immunity also argued that without “the
[telecommunications providers’] voluntary cooperation it [foreign intelligence
gathering] is much harder and we get much less [information].”12 On the other hand,
opponents of retroactive immunity pointed out that retroactive immunity “strips
[unlawfully surveilled] individuals of the ability to vindicate their rights in court
Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which
electronic surveillance, as defined in section 101 of FISA, and the interception of domestic
wire, oral, and electronic communications may be conducted.” 18 U.S.C. § 2511(2)(f)
P.L. 95-511, 92 Stat. 1783 (1978) (codified as amended at 50 U.S.C. §§ 1801 et seq.).
P.L. 90-351, tit. III, 82 Stat. 197, 211 (1968) (codified as amended at 18 U.S.C. §§ 2510
P.L. 107-40, 115 Stat. 224 (2001). See, also, CRS Congressional Distribution Memo,
Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign
Intelligence Information, by Elizabeth B. Bazan and Jennifer K. Elsea (Jan. 5, 2008).
S.Rept. 110-209, at 4.
Id. at 7.
For a more detailed discussion of these lawsuits and retroactive immunity, see, CRS
Report RL34279, The Foreign Intelligence Surveillance Act: An Overview of Selected
Issues, by Elizabeth B. Bazan, at 14-21.
Admiral Michael McConnell, Director of Nat’l Intelligence, Modernization of the Foreign
Intelligence Surveillance Act (FISA), Aug. 2, 2007, available at [http://www.odni.gov/
154 CONG. REC. S6454 (daily ed. July 9, 2008) (statement of Sen. Bond).
regarding wiretapping abuses of the past,”13 and that “if we want
[telecommunications providers] to follow the law in the future, it sends a terrible
message, and sets a terrible precedent, to give them a ‘get out of jail free’ card for
allegedly ignoring the law in the past.”14
Issues Raised by Civil Actions Against
Retroactive immunity is more than simply protection from liability; it can also
act as protection from the cost of litigation. Therefore, before discussing the effects
of any retroactive immunity provisions, it may be helpful to examine how a covered
lawsuit might proceed in the absence of retroactive immunity. Without retroactive
immunity, many legal issues would need to be addressed, possibly at great expense,
in order to resolve these cases. The plaintiffs would need to show that the actions of
the defendants were not lawful under the laws in effect when the TSP was active.
The Bush Administration’s theory of inherent wiretapping ability might be litigated.
Additionally, the applicability of the state secrets privilege could also be the subject
of litigation. Each of these issues is discussed below.
Lawfulness Under the FISA and Title III
As a general principle, if electronic surveillance is likely to result in the
acquisition of communications to or from someone in the United States such
surveillance may not be conducted unless sanctioned by a court order.15 Federal law
provides two statutory frameworks for obtaining warrants to conduct electronic
surveillance: Title III of the Omnibus Crime Control and Safe Streets Act and FISA.
Title III authorizes electronic surveillance in the context of law enforcement, while
FISA authorizes electronic surveillance in the context of gathering foreign
intelligence. Both Title III and FISA also provide prospective civil immunity for
individuals that assist or conduct electronic surveillance under the auspices of either
ACLU, Letter to the Senate Urging No Votes On Any Bill That Would Authorize
Warrantless Wiretapping or Grant Immunity to Telecoms, Feb. 2, 2008, available at
154 CONG. REC. S6381 (daily ed. July 8, 2008) (statement of Sen. Feingold).
But, 50 U.S.C. § 1802 authorizes electronic surveillance without a court order for up to
one year, if the targets are means of communications, property, or premises used exclusively
by foreign governments, and there is no substantial likelihood that the surveillance will
acquire the contents of any communication to which a United States person is a party.
Exceptions also apply during emergency situations or after congressional declarations of
war. Infra, note 19. For a thorough description and analysis of federal wiretapping laws,
see, CRS Report 98-326, Privacy: An Overview of Federal Statutes Governing Wiretapping
and Electronic Eavesdropping, by Gina Stevens and Charles Doyle.
18 U.S.C. § 2511(2)(a)(ii) bars civil actions against telecommunications providers that
give assistance pursuant to a court order or certification issued under Title III. FISA bars
Plaintiffs suing telecommunications providers, and others, argue that the TSP
was not lawful under either Title III or FISA. Many of the details of the TSP remain
classified, but it apparently authorized the surveillance of international
communications without a judicially issued warrant if there was a “reasonable basis
to conclude that one party to the conversation [was] a member of al Qaeda.”17 That
determination appears to have been made by intelligence officials, and was reported
to have been reviewed every 45 days.18 In contrast, Title III and FISA only allow
warrantless surveillance for shorter periods of time in most circumstances.19
Statements by officials in the Bush Administration appear to acknowledge that the
TSP was conceived and operated outside of the procedures authorized by either Title
III or FISA.20
Executive Authority and the Authorization
for Use of Military Force
Nonetheless, the Bush Administration has argued, in support of the TSP, that
the Constitution grants the executive the inherent power to conduct electronic
surveillance to gather foreign intelligence and the AUMF reflects a congressional
civil actions against the same type of defendants for assistance given pursuant to
surveillance authorized by that statute. 50 U.S.C. § 1805(h).
Press Briefing, infra note 20.
President George W. Bush, Press Conference, Dec. 19, 2005, available at
See, 18 U.S.C. § 2518(7) (authorizing warrantless electronic surveillance for 48 hours in
situations involving immediate danger to persons, threats to national security, or organized
crime); 50 U.S.C. § 1805(e) (authorizing emergency warrantless electronic surveillance for
up to 72 hours while a court order is sought); and 50 U.S.C. § 1811 (authorizing warrantless
electronic surveillance for 15 days following a Congressional declaration of war). But, see,
discussion of authority to conduct warrantless electronic surveillance for up to one year,
supra, note 15.
For example, Attorney General Alberto Gonzales made the following statement:
[FISA] is a very important tool that we continue to utilize. Our position is that
we are not legally required to do [sic], in this particular case, because the law
requires that we — FISA requires that we get a court order, unless authorized by
a statute, and we believe that authorization has occurred.
General Michael Hayden, Principal Deputy Director for National Intelligence, elaborated
further on that statement:
[B]ecause of the speed, because of the procedures, because of the processes and
requirements set up in the FISA process, I can say unequivocally that we have
used this program [the TSP] in lieu of that [FISA] and this program has been
Attorney General Alberto Gonzales and General Michael Hayden, Press Briefing, Dec. 19,
2005, available at [http://www.whitehouse.gov/news/releases/2005/12/20051219-1.html].
intent to give the executive the authority to take all measures necessary to combat
terrorism. A full exposition of the support for these propositions is beyond the scope
of this report.21 However, one should note that the question would require
reconciling the assertions of the Bush Administration with the legislative history and
statutory text of FISA and Title III which identify those statutes as the exclusive
means of conducting electronic surveillance.22 Here, it is sufficient to note that it is
an issue that would likely require extensive litigation in order to be resolved.
The State Secrets Privilege
In some cases, the confidential subject matter of a suit may prevent a court from
hearing it. Under the judicially created state secrets privilege, “public policy forbids
the maintenance of any suit ... the trial of which would inevitably lead to the
disclosure of matters which the law itself regards as confidential.”23 Insofar as many
of the details of the TSP remain classified, it is likely that the state secrets privilege
would be central to the disposition of the suits against telecommunications providers
The state secrets privilege is held by the government, meaning that only the
government can assert it to preclude litigation.24 If claimed by the federal
government, the effect of the state secrets privilege can range from the exclusion of
certain information from discovery or admission at trial to the complete dismissal of
a civil action.25 For example, in Totten v. United States, a former spy brought suit to
enforce a secret contract with the federal government for espionage services.
Ultimately, in that case, the Supreme Court held that the subject of litigation, namely
the contract for espionage, was itself a secret and any litigation on that subject was
In other circumstances, the state secrets privilege applies only to certain items
of evidence, rather than to the subject of litigation at large. In Halkin v. Helms, the
D.C. Circuit was confronted with a claim of privilege regarding the NSA’s alleged
interception of international communications to and from persons who had been
targeted by the CIA.27 After deciding that the claim of privilege was valid, the court
of appeals affirmed the protection of that information from discovery, while
For a detailed analysis of the Bush Administration’s arguments, see, CRS Congressional
Distribution Memo, Presidential Authority to Conduct Warrantless Electronic Surveillance
to Gather Foreign Intelligence Information, by Elizabeth B. Bazan and Jennifer K. Elsea
(Jan. 5, 2008).
Id. at 40-41.
Totten v. United States, 92 U.S. 105, 107 (1876) (applying the privilege to bar a suit to
enforce a secret contract for espionage).
United States v. Reynolds, 345 U.S. 1, 7 (1953).
See, Id. at 11 n.26 (quoted by Hepting v. AT&T, 439 F. Supp. 2d 974, 984 (N.D. Cal.
Totten, 92 U.S. at 107.
Halkin v. Helms, 690 F.2d 977 (D.C. Cir. 1982).
permitting other evidence that the plaintiffs were targeted by the CIA.28 In the end,
however, the court dismissed the suit after deciding that without the privileged
information, the plaintiffs would not be able to make a prima facie case.
A similar result may occur if the state secrets privilege requires the exclusion
of evidence central to a defendant’s case. In Molerio v. Federal Bureau of
Investigation, a job seeker alleged that the FBI had disqualified him based upon his
father’s political ties to socialist organizations in violation of his father’s First
Amendment rights.29 In response, the FBI asserted that it had a lawful reason to
disqualify the plaintiff, but claimed that its reason was protected by the state secrets
privilege. After reviewing the FBI’s claim in camera, the D.C. Circuit agreed that
the evidence of a nondiscriminatory reason was protected and that its exclusion
would deprive the FBI of a valid defense. Therefore, the dismissal of that action was
Although it is not possible to accurately determine whether the state secrets
privilege would necessitate dismissal of the telecommunications cases discussed
above, several courts presented with lawsuits regarding the TSP have issued
preliminary rulings regarding the applicability of the state secrets privilege.
In Hepting v. AT&T, the district court was presented with an assertion of the
state secrets privilege.31 The court first examined whether the information requested
was actually secret, given the amount of media publicity regarding the TSP and
public statements made by the Bush Administration and the defendant.32 While the
specifics of the TSP may remain classified, the court noted that the general subject
of the litigation, specifically that such a program existed at all, was no longer a secret
given the admissions made by the government and the defendant. Therefore, this
case was distinguishable from Totten, and dismissal of the case at the outset of
litigation was inappropriate.33 While the privilege may limit the plaintiffs’ discovery
efforts or the defendant’s assertion of a defense at a later date, the court declined to
rule on whether that would ultimately necessitate dismissal.34
FISA may preempt the state secrets privilege. In In re National Security Agency
Telecommunications Records Litigation, the court considered 50 U.S.C. § 1806(f),
which mandates a legislatively created procedure for courts to consider sensitive
material, the disclosure of which might damage the national security of the United
The other evidence of CIA targeting was never claimed to be privileged by the
government. Id. at 997.
Molerio v. FBI, 749 F. 2d 815, 824-825 (D.C. Cir. 1984).
Id. at 825.
Hepting v. AT&T, 439 F. Supp. 2d 974 (N.D. Cal. 2006).
Id. at 986.
Id. at 993.
Id. at 994.
States.35 Section 1806(f), which was left unmodified by the FISA Amendments Act,
requires sensitive information to be reviewed by courts ex parte and in camera with
adequate procedures to safeguard against inadvertent disclosure.36 The court found
that this legislative framework trumped the judicially created state secrets privilege,
despite arguments that the privilege was of constitutional origin.37 The court did not
preclude assertion of the privilege where FISA did not apply.38 In the case before it,
the plaintiffs had yet to show standing as “aggrieved persons” under FISA.
Therefore, the court continued to bar the privileged information, but only until the
plaintiffs had the opportunity to show, through other evidence, whether they are
Retroactive Immunity Under the
FISA Amendments Act of 2008
Title II of the FISA Amendments Act lays out a procedure for the Attorney
General to seek the dismissal of lawsuits alleging unlawful participation in the TSP
by telecommunications providers. The process begins when the Attorney General
certifies, to the court where the lawsuit is pending, two fundamental facts regarding
the defendant’s alleged assistance. First, the assistance must have been given in
connection with the TSP between September 11, 2001, and January 17, 2007.
Second, the defendant must have been given written assurances that the TSP was
authorized by the President and determined to be lawful. Alternatively, the Attorney
General can certify that the alleged assistance was not in fact provided by the
defendant. All parties are permitted to submit documents and arguments which the
court may consider, and dismissal is required if the court finds, based upon its
review, that the certification was supported by “substantial evidence.” What
constitutes substantial evidence is discussed in the section below regarding standards
Alternative Retroactive Immunity Proposals
Before the passage of H.R. 6304 by the Senate, that body had previously
included retroactive immunity for telecommunications providers in its amendment
to H.R. 3773. Additionally, three amendments were proposed to H.R. 6304 that
would have modified the retroactive immunity provisions. This section examines the
See, In re National Security Agency Telecommunications Records Litigation, No. 06-1791
VRW, slip op. at 18 (N.D. Cal. July 2, 2008) (holding that FISA’s procedures for a court’s
in camera review of classified information preempts the common law state secrets
50 U.S.C. § 1806(f)
In re National Security Agency Telecommunications Records Litigation, supra, note 35,
Id. at 17.
Id. at 48-49. See, 50 U.S.C. § 1801(k) (defining “aggrieved persons”).
different approaches to retroactive immunity in that bill and the proposed
Senate Amendment to H.R. 3773
In February of 2008, the Senate passed an amendment in the nature of a
substitute to H.R. 3773. Like H.R. 6304, this Senate amendment would have
required courts to dismiss lawsuits against telecommunications providers if sufficient
grounds for dismissal were certified to the court by the Attorney General.40 With
respect to the lawsuits alleging assistance provided under the TSP, the grounds for
dismissal were identical to those required under H.R. 6304. But, H.R. 3773 did not
provide a means for others to submit arguments or documents in opposition to
dismissal, and certifications would only be subject to review for an abuse of
discretion.41 What qualifies as an abuse of discretion is discussed in the section
below regarding standards of review.
Proposed Amendments to H.R. 6304
Three amendments offering variations on the retroactive immunity mechanism
were introduced in the Senate during the debate over H.R. 6304, but were not
S.Amdt. 5059. Introduced by Senator Specter, S.Amdt. 5059 would have
added a second component to a court’s review of a certification by the Attorney
General. Under this amendment, dismissal would not be appropriate if the court
determined that the underlying intelligence activity that the defendant had
participated in was unconstitutional. Because this would have been a legal
determination, the court would have been permitted to address this question de novo
without relying upon or giving deference to any interpretations of the Constitution
made by the Attorney General in the certification or elsewhere.
S.Amdt. 5060. Introduced by Senator Whitehouse, S.Amdt. 5060 would have
required that the Attorney General additionally certify that the defendant had
provided assistance based on a “good faith and reasonable belief” that its conduct
was lawful. Like the rest of the certification, this finding would have needed to be
supported by “substantial evidence” in order to result in a dismissal.
S.Amdt. 5066. Introduced by Senator Bingaman, S.Amdt. 5066 would have
left the certification mechanism of H.R. 6304 in place, but would have delayed
certification by the Attorney General in cases involving the TSP until 90 days after
the inspectors general of various intelligence and national security agencies had
reviewed the TSP and submitted a comprehensive report to Congress detailing their
findings. Additionally, all TSP lawsuits would have been stayed during this time.
The review and report are still mandated by a separate provision of H.R. 6304, § 301,
H.R. 6304, § 201, 110th Cong.
H.R. 3773, § 202(a) as amended by the Senate, 110th Cong.
and are required to be completed within one year of the date of enactment, but does
not require any TSP lawsuits to be stayed.
Comparison of Retroactive Immunity Provisions
Timing of Certifications
Although alternative proposals to retroactive immunity followed the same
general procedure as the FISA Amendments Act with respect to how and by whom
a certification is made, the question of when a certification is made may vary
substantially. Generally, the certification would appear to be permissible at any stage
of litigation before final judgment. Note, however, that the act requires certifications
to be made to the court in which the action is pending. That clause could possibly
be read to disallow certifications in anticipation of any litigation. In contrast, the
Senate amendment to H.R. 3773 did not appear to contain such language. The
import of this difference may be magnified as a change in Administration is
imminent. This may create the possibility that, under the law as passed, a potential
plaintiff could forestall filing suit in the hope that a new Administration, opposed to
retroactive immunity, would take office. If anticipatory certifications are not
permitted because no action is pending, suits filed after the Administration changes
could still be dismissed, but only at the discretion of a newly appointed Attorney
Similarly, the delay proposed by S.Amdt. 5066 also raised the possibility that
a change in Administration could have affected the certification of a lawsuit alleging
that participation in the TSP was unlawful. S.Amdt. 5066 would have disallowed
certifications until 90 days after a report detailing the specifics of the TSP is received
by Congress. Depending upon how long it actually took for that report to be
completed, certifications might not have been permissible until some time after the
current Administration had left office.
Standards of Review
The Senate amendment to H.R. 3773 would have instructed the court to review
certifications using an “abuse of discretion standard.” In contrast, the enacted FISA
Amendments Act requires certifications to be supported by “substantial evidence.”
Two important characteristics of any standard of review are the level of scrutiny
given and the scope of the universe in which such review takes place. An analysis
of each standard of review and its potential effect on the pending litigation at issue
is discussed below.
Abuse of Discretion. In the judicial context, appellate courts commonly
review discretionary rulings of lower courts under an abuse of discretion standard.
For example, a federal trial judge’s decision to exclude evidence because it is unfairly
prejudicial is reversible error only if the trial court made an error of law or acted in
an unprincipled, arbitrary, or irrational manner.42 In the words of the Supreme Court,
it is “deference that is the hallmark of abuse of discretion review.”43
But, the Senate amendment to H.R. 3773 deals with judicial review of the
actions of an executive branch official, namely the Attorney General. Therefore, an
examination of the standards for judicial review of administrative action under the
Administrative Procedure Act (APA) may be more illustrative than comparisons to
review of actions by lower courts. Unless specifically excluded from review by
statute, the APA authorizes courts to set aside agency actions that are “arbitrary,
capricious, or an abuse of discretion.”44 The Supreme Court of the United States had
the opportunity to expound upon the meaning of this standard in Citizens to Preserve
Overton Park, Inc. v. Volpe, a case involving a challenge to the construction of a
highway through a public park.45 The Court held that this standard of review
required the reviewing court to
consider whether the decision was based upon a consideration of the relevant
factors and whether there has been a clear error of judgment. Although this
inquiry into the facts is to be searching and careful, the ultimate standard of
review is a narrow one. The court is not empowered to substitute its judgment for
that of the agency.46
Therefore, in the case of certifications by the Attorney General, a court reviewing for
an abuse of discretion would have likely examined the Attorney General’s
consideration of the assistance provided by the defendants, the types of
representations made by intelligence officials concurrently with requests for
assistance, and the facts surrounding any other findings required by the certification.
Note that the Senate amendment to H.R. 3773 did not indicate what record, if
any, the court would be able to review in gauging the propriety of the Attorney
General’s certification. The only documentation the Attorney General would have
been required to present is the certification itself, and no other provision would have
allowed opposing parties to present contradictory evidence or arguments. Because
of these limitations, it is not clear on what basis, if any, a court could have found a
certification under H.R. 3773 to be an abuse of discretion.
Substantial Evidence. In contrast, “substantial evidence” is a standard of
review frequently used by courts to review formal findings of fact by federal
See, e.g., Republic of the Phil. v. Pimentel, 128 S. Ct. 2180, 2189 (2008); United States
v. York, 933 F.2d 1343 (7th Cir. 1991); United States v. Coiro, 922 F.2d 1008 (2nd Cir.
G.E. v. Joiner, 522 U.S. 136, 143 (1997) (addressing whether appellate court properly
evaluated trial court’s actions using an abuse of discretion standard).
5 U.S.C. § 706(2)(A).
Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) (overruled on other
grounds by Califano v. Sanders, 430 U.S. 99, 105 (1977)).
Id. at 416.
agencies.47 It is less stringent than de novo review, which would allow a court to
look at the evidence anew and come to its own conclusions. Nevertheless, the
Supreme Court has described “substantial evidence” as requiring “more than a mere
scintilla” of support and comparable to the standard a trial judge must meet to sustain
a jury’s verdict.48 In the federal courts, a jury verdict will not be disturbed if
“reasonable and fair-minded persons in exercise of impartial judgment” might have
come to the same conclusion as the jury.49 Therefore, under the “substantial
evidence” test, if a court reviewing an Attorney General’s certification under the
FISA Amendments Act found that an objectively reasonable person could conclude
that the facts in the certification were true, the court would be required to dismiss the
In the administrative context, substantial evidence review and abuse of
discretion review occur in factually distinct circumstances. Substantial evidence is
required when an agency engages in either formal rulemaking or an adjudicatory
hearing. In contrast, abuse of discretion applies in cases of informal rulemaking and
decisions. Therefore, it may be difficult to directly compare the two standards in
terms of stringency. Although some courts appear to consider substantial evidence
a more demanding standard than abuse of discretion, the consistent theme of both
standards is that the court is not free to substitute its judgment in place of the
agency’s.50 However, any apparent similarity between the level of deference afforded
by a reviewing court under either standard should not overshadow important
differences in the scope of the record available to the court.
The scope of the record viewed by the court is a critical factor affecting the
search for “substantial evidence.” In Universal Camera v. National Labor Relations
Board, the Supreme Court interpreted the Taft-Hartley Act’s use of the phrase
“substantial evidence on the record considered as a whole.”51 A previous version of
the act stated only that findings by the National Labor Relations Board be “supported
by evidence” and had been read by some courts to mean that if any evidence exists
to support the agency’s findings, then they are valid, regardless of what contradictory
evidence also exists. But, in Universal Camera, the Supreme Court found that the
addition of the phrase “on the record considered as a whole” indicated that Congress
intended courts to review agency findings of fact based upon a holistic view of the
In Overton Park, the Supreme Court remarked that substantial evidence review was not
appropriate because the agency had not taken undertaken formal rulemaking or an
adjudicatory hearing. Overton Park, 401 U.S. at 414.
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938); NLRB v. Columbian
Enameling & Stamping Co., 306 U.S. 292, 300 (1939)
E.g., Kosmynka v. Polaris Industries, Inc., 462 F.3d 74, 79-82 (2nd Cir. 2006) (upholding
jury’s finding that a manufacturer was negligent for failing to warn that its all-terrain vehicle
might upend itself despite uncontested evidence that the manufacturer had received no
reports of such incidents).
See, e.g., Frontier Fishing Corp. v. Evans, 429 F. Supp. 2d 316, n.7 (citing Indus. Union
Dep’t v. API, 448 U.S. 607, 705 (1980) (Marshall, J., dissenting, asserting that substantial
evidence is more stringent, but is ultimately a deferential standard)).
Universal Camera v. NLRB, 340 U.S. 474 (1951) (emphasis added).
record, evaluating supporting evidence in light of available contradictory
The FISA Amendments Act requires that certifications be supported by
“substantial evidence provided to the court pursuant to this section.” The act goes
on to permit a reviewing court to examine documentation, certifications, briefs and
arguments submitted by all parties when determining if substantial evidence supports
the certification. One could reasonably conclude that the availability of contradictory
evidence would indicate the intent to apply the more stringent Universal Camera
definition of substantial evidence. On the other hand, the text of the act may not
require the court to consider extraneous material.53
Therefore, as compared with the Senate amendment to H.R. 3773, the FISA
Amendments Act provides the possibility of a broader factual record in which to
conduct judicial review of a certification by the Attorney General, but may leave
much of the discretion to view that record to the court itself. Under the FISA
Amendments Act, it seems possible that a court could lawfully dismiss a case upon
certification by the Attorney General, if the court finds the substantial evidence
standard is satisfied after looking only at the information provided by the Attorney
Id. at 490.
Compare, 50 U.S.C. § 1885a(b)(2) (“the court may examine [supplemental materials]”)
(emphasis added) with 50 U.S.C. § 1185a(c) (“the court shall review such certification and
the supplemental materials in camera and ex parte”) (emphasis added).