Trump can turn to the courts.
Trump can turn to the courts.
T o repeat what I’ve opined many times over the past 20-plus years, one of the reasons I object to our post-1978 surveillance framework, built around the constitutionally dubious and practically difficult Foreign Intelligence Surveillance Act (FISA), is that it thrusts the courts — the judicial branch that is supposed to be insulated from politics — into intelligence collection, a national defense function to be carried out by the political branches that answer to the people.
But the courts are in that position, regardless of whether they should be. And now, with the government’s statutory authorization to collect foreign intelligence — FISA Section 702 — about to lapse at midnight, the Trump Justice Department needs help from the Foreign Intelligence Surveillance Court (FISC) to make certain that intelligence collection continues. National security depends on it.
To be clear, I remain skeptical that, as a matter of constitutional law, the executive needs court permission to gather intelligence outside the United States regarding foreign operatives who have no constitutional rights. I further think the courts cannot legitimately prevent the executive from conducting foreign intelligence collection.
Moreover, the courts should not be in the position of advising the executive how to carry out these duties. Effectively, however, FISA thrusts the courts into that role. The Supreme Court has rejected the provision of advisory opinions — as a violation of both separation of powers and the jurisdictional restriction of courts to participation in real cases and controversies — ever since Chief Justice John Jay informed Secretary of State Thomas Jefferson in 1793 that the Court would not advise the Washington administration on questions of neutrality law provoked by the French Revolution and resulting warfare in Europe.
Nevertheless, the views of FISA skeptics have been marginalized in the last half century. Until FISA was signed into law by President Jimmy Carter (with administration caveats about how the executive was supposedly not ceding Article II power to the courts pursuant to a congressional statute), foreign intelligence gathering was carried out under presidential direction, without court participation, much less supervision. There was nothing unconstitutional about that. Yet now, a telecommunications company would be risking mega-liability if it supported government surveillance operations in the absence of court authorization grounded in statutory law.
In a fit of pique over President Trump’s reckless appointment of the statutorily unqualified Bill Pulte as acting national intelligence director (i.e., as the head of an ill-conceived, inevitably politicized bureaucracy that adds no material value to America’s intelligence products), congressional Democrats have refused to extend the government’s FISA Section 702 authority for foreign signals intelligence gathering. (See my prior posts, here, here, and here.) That Democrats know what they’ve done is utterly irresponsible, regardless of how cathartic it may feel politically, is elucidated by the haste of Jamie Raskin (D., Md.), the ranking House Judiciary Committee Democrat, to assure the public that the Democrats’ nullification of Section 702 doesn’t really halt foreign intelligence collection because court orders already issued under the provision — i.e., the orders that authorize collection programs — will continue in effect.
If it’s important to give that assurance, why not just reauthorize Section 702 so we need not worry about the matter? Democrats could then, without toying with national security, pick one of the many other avenues available to Congress to make a stink about Trump’s Pulte appointment.
In any event, we are where we are — after 48 years of FISA and several weeks of partisan infighting over Section 702 and Pulte. In a perfect world, the Trump Justice Department would not have to ask for help from the FISC. In the world we’re in, I believe the DOJ needs to do at least two things. (I expect it has done them already, though the veil over highly classified FISA operations makes it hard, if not impossible, to know.)
First, the DOJ should obtain FISC orders that direct the relevant telecom companies to continue assisting the government’s intelligence operations for the duration of the orders that are currently in effect. This is consistent with Section 702. The FISC cannot authorize surveillance beyond the orders currently in place unless Congress finally reauthorizes Section 702 (which it will likely do in the next few weeks, once this round of playground squabbling is over). But the FISC can and must ensure that its current, statutorily legitimate orders are carried out until their expiration.
Second, the DOJ should obtain FISC authorization for intelligence agents to continue querying the Section 702 databases while the existing orders are carried out. To be clear, I believe President Trump has constitutional authority to direct intelligence agencies to continue querying the databases. But court authorization would better protect the agents from later claims that, during the days or weeks that the statute had lapsed (starting at midnight tonight), Section 702 operations were illegal. Such a court order ratifying the agencies’ operations would also give the telecom companies confidence that the government is taking extra steps to ensure the legality of intelligence collection, which will encourage their continued cooperation.
Again, none of this should be necessary. But it’s where we are, and we have to play the hand we’re dealt under the rules that are in place.