Vanderbilt Journal of Transnational Law

First Page



Within its more limited scope, the Belfield decision provides a helpful approach to FISA cases by articulating both a solid rationale for FISA's in camera, ex parte provision and a workable balancing approach for determining whether open proceedings may be necessary. The Falvey decision, although broader in scope, does not provide a satisfactory rationale for FISA's deviation from the traditional fourth amendment warrant requirement, nor does it articulate a workable approach to evaluating a FISA-warranted surveillance. The Falvey court, by predicating its upholding of FISA on an acceptance of the national security exception, may perpetuate a debate that the statute attempted to foreclose. For circuits that have not endorsed warrantless national security surveillance by the Executive, the Falvey decision may not offer a satisfactory rationale for accepting FISA's less-than-probable cause standard. Furthermore, Falvey's substitution of a per se rule for Truong's "primarily for the purpose" test may be open to constitutional attack in the future.

The Falvey and Belfield decisions, along with the Truong footnote, very likely foreshadow the deferential treatment that a much-needed, complex, and extensively debated statute will receive in the courts. While the Belfield decision effectively defends FISA's controversial in camera, ex parte provision, the Falvey decision will disappoint both FISA's supporters and critics, who will have to wait for a more satisfactory statement of their views and a more convincing defense of FISA's controversial deviation from traditional fourth amendment warrant requirements.