‘The FISA court is a rubber stamp.” The ongoing NSA controversy has revived that shopworn talking point, relentlessly repeated by progressive and libertarian opponents of national-security surveillance. The notion is that the Foreign Intelligence Surveillance Court, the special tribunal created by Congress in 1978 to oversee collection of foreign intelligence, routinely approves Justice Department eavesdropping applications. Fox News recently reported that last year, for example, the FISA court granted all 1,788 requests for authorization. It is as if there were no judicial oversight at all, critics say.
As a factual matter, the talking point is sheer nonsense. As a matter of law, it is ill conceived, skipping by the inconvenience that courts have no constitutional role in the gathering of foreign intelligence.