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FISA Fiasco

by Andrew C. McCarthy

A “rubber stamp” court would be an improvement

‘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.

Let’s start with the facts. It would be nice if the press had a long enough attention span to demand that surveillance critics make up their minds about the FISA court. Prior to 9/11, critics claimed that the tribunal — made up of eleven federal judges — was a rubber stamp because it green-lighted virtually all of the government’s applications to eavesdrop on, or secretly search for, foreign terrorists and spies. Then, after the 9/11 attacks, when it was revealed that the National Security Agency was conducting some surveillance without seeking the court’s approval, critics switched gears: The FISA court was suddenly transformed into the noble robed barricade standing between us and George W. Bush’s sinister shredding of the Constitution.

To their credit, libertarians, while wrong on the Fourth Amendment’s breadth and application to alien operatives, are consistent. Like me, they have never been fans of FISA, but we oppose it for opposite reasons: I think it is an unconstitutional intrusion on the president’s constitutional supremacy in gathering intelligence against foreign enemies; they think it is an unconstitutional dilution of the Fourth Amendment’s warrant requirement. Given their position that FISA warrants are unconstitutional (because they require probable cause that a target is a foreign agent rather than that he has committed a crime), they inevitably objected to Bush’s dispensing with warrants altogether.

On the left, however, the vitriol against President Bush’s disregard for FISA was patent posturing. When FISA was enacted, President Carter’s attorney general, Griffin Bell, sagely observed that the statute’s passage did not and could not invalidate the executive’s constitutional authority to collect foreign intelligence without judicial permission. And when FISA was amended in the Nineties to address physical searches as well as eavesdropping, President Clinton’s Justice Department similarly insisted that the president reserved the authority to order physical searches of foreign operatives without FISA-court approval.

The Left made nary a peep about any of this. In authorizing warrantless NSA eavesdropping after 9/11, Bush was relying on exactly the same jurisprudence as did Clinton and Carter. The Democrats’ reaction — their sudden depiction of the erstwhile “rubber stamp” as our vital insurance against unconstitutional “domestic spying,” their suggestions that Bush should be impeached — was demagoguery of the most hypocritical kind.

Now Bush is gone, so the FISA court is back to being a rubber stamp. After all, it is easier for the Left to complain about the judges than to deal with the embarrassing fact that President Obama has actually expanded “domestic spying.”

In any event, the image of a sleepy FISA court’s serving as the executive branch’s doormat is an illusion. After enactment of the Patriot Act, a principal objective of which was to raze the infamous “wall” by which the Justice Department prevented cooperation between national-security agents and criminal investigators, a breathtakingly activist FISA court attempted to re-erect the wall by judicial fiat. This resulted in the first-ever ruling by the Foreign Intelligence Surveillance (FIS) Court of Review, which reversed the FISA court’s lawlessness.

The FISA court similarly got its back up over Bush’s warrantless surveillance. Initially, only the chief judges of the court were told about it: Judge Royce Lamberth and his replacement, Judge Colleen Kollar-Kotelly, both of the federal district court in Washington. Longstanding precedents, including the FIS Court of Review decision, affirm that, regardless of Congress’s framework for judicial review, presidents have inherent power under Article II to collect foreign intelligence — a statute such as FISA cannot trump the Constitution. Nevertheless, the chief judges bristled that the government might include evidence gathered without a warrant in its FISA-court applications, thus infecting the judicially supervised process with “taint.” Consequently, the government was pressured to remove such evidence from its applications.

In late 2005, the other FISA judges learned about the NSA’s warrantless-surveillance program when it was disclosed by the New York Times. The ensuing revolt included a shameful episode of judicial leaking to the Washington Post, which reported that “judges who spoke on the condition of anonymity . . . said they want to know whether warrants they signed were tainted by the NSA program.” This was a jaw-dropping violation of the federal code of judicial ethics, which directs jurists to refrain from public comment about pending or impending legal controversies — particularly those on which they might be asked to render decisions.

The FISA-court pushback against constitutionally permissible surveillance is seen not only in judicial snarking but also in the court’s statistics. (FISA applications are classified, but court-disposition statistics are available publicly.) Critics are quick to point to the percentage of applications ultimately approved: near 100 percent. They somehow never get around to mentioning the category of “modifications.”

Beginning in 2003 — i.e., right after the NSA warrantless program became known to the chief judge — the number of applications reported as “modified prior to approval” spiked. There had been two such applications in 2002; in 2003, there were 79 — in addition to four outright denials, after no denials the preceding year. Until the legislative overhaul of FISA in 2008, the surge in modifications did not abate, their annual number ranging between a high of 94 (2004) and a low of 61 (2005). Clearly, judges began refusing to consider certain evidence, which no doubt forced the Justice Department to rewrite applications and perhaps even forgo surveillance of suspected foreign agents. Moreover, even the FISA overhaul did not halt the modifications. There have been a combined 70 in the last two years; and since 2009, 16 applications have been entirely withdrawn.

Simply stated, the FISA court does not formally deny many applications, but that isn’t because it’s a rubber stamp. It simply leans on the government to modify or withdraw the applications it finds wanting. These are denials by another name.

Now, about that FISA overhaul in 2008: The demand for an urgent legislative fix was triggered by an outrageous FISA-court ruling that claimed jurisdiction over communications between non-Americans situated outside the United States. In creating the FISA court in 1978, Congress had quite intentionally excluded it from ruling on intelligence activities outside the U.S. — the idea was to protect Americans inside our country who were suspected of being foreign agents. Yet, to enhance its own power, the court had run roughshod over this bright line, throwing the nation’s foreign-intelligence gathering into chaos in the middle of a war against secretive international terrorists, while we had troops in harm’s way.

This remarkable judicial arrogance required Congress to rewrite FISA to address a challenge the Framers of our government would have found shocking: how to bring within the judicial ambit foreign-intelligence collection — an innately political activity carried on, in the main, outside the United States and thus outside federal-court jurisdiction. Congress took the easy way out: conferring on the executive branch sweeping authorization for spying, with court approval to be triggered by little or no demonstration of suspicion that the target was a hostile foreign operative. It was easier than confronting the real problem: FISA’s dubious constitutionality.

Foreign-intelligence collection is a paradigmatic executive responsibility. Decisions about foreign policy and, in particular, national defense are the most fundamental ones a nation-state confronts. In our republic, the Framers intended them to be made by officials accountable to the sovereign people whose lives are at stake. The judiciary, on the other hand, besides having no special competence in intelligence matters, is quite intentionally insulated from political accountability. The point of having a federal judiciary is to give Americans a forum for protecting their rights against government overreach, not to give foreign agents a forum to put our government and its policies on trial. Government policy is checked at the ballot box, and by the tools the Constitution gives the political branches — the executive and legislative — to check each other.

This is why the courts have long acknowledged that foreign policy, including intelligence collection, is a plenary executive responsibility. It is the president who is constitutionally responsible for safeguarding national security against threats — a core function of government for which a judicial role was not contemplated and remains impractical. Hence the court precedents, relied on by administrations of both parties, establishing that the president has inherent authority to gather intelligence on foreign operatives — a power Congress can neither reduce nor transfer to the judges.

FISA is an anomaly, enacted in overreaction to Watergate and the spying scandals of the Seventies. No judge should ever tell a president that the executive branch may not collect intelligence on suspected foreign spies and alien terrorists. If the constitutional system were working properly, the FISA court — if it existed at all — would be a rubber stamp. Unfortunately, it is not, and its activism, however well intentioned, portends more harm than good.

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