The Magazine

But Who Will Surveil the Judges?

The FISA court and its failings.

Nov 5, 2007, Vol. 13, No. 08 • By GARY SCHMITT
Widget tooltip
Single Page Print Larger Text Smaller Text Alerts

The Senate bill, in that respect, is sounder. It provides retroactive protection for the activities of what even the Washington Post called "patriotic corporate citizens." Also, the Senate's proposed changes to FISA would not require a warrant for conducting surveillance of overseas targets. But the bill still mandates that the FISA court review and approve the procedures designed to ensure that the targets of the surveillance are "reasonably believed" to be outside the United States and mandates that the intelligence community not target a U.S. citizen, whether the collection is acquired here or outside our borders, without a FISA court warrant applying the probable cause standard. And, finally, like the House bill, the Senate bill has added a new layer of reporting and oversight.

Of the two bills, the administration is of course more inclined to favor the Senate's. No doubt the FISA court would approve any reasonable set of procedures to conduct foreign surveillance. And, indeed, the only problem from the White House's point of view appears to be the requirement that a regular FISA warrant be obtained for collecting information against a U.S. citizen even if that person is outside the United States.

But FISA was only meant to apply to wiretaps conducted domestically. Both the Senate and House bills nose the FISA court into overseeing foreign collection--providing a new check on a presidential prerogative. As the FISA court's own court of review stated in 2002:

All the other [federal appellate] courts to have decided the issue held that the President did have an inherent authority to conduct warrantless searches to obtain foreign intelligence information. . . . We take for granted the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power.

And, contrary to how Congress thinks about these matters today, there was a time when a majority of members thought that the president retained a prerogative in this area. Prior to FISA's passage, for example, the Omnibus Crime Control and Safe Streets Act of 1968 set out the procedures for federal wiretapping. It explicitly stated that nothing in this act "shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack." And when FISA was passed in 1978, the House committee report accompanying the bill noted that the act

does not afford protection to U.S. persons who are abroad, nor does it regulate the acquisition of the contents of international communications of U.S. persons who are in the United States, where the contents are acquired unintentionally.

It's not clear if either measure will pass as it stands. The Senate Judiciary Committee has still to weigh in on the proposed bill, and neither the committee chairman, Patrick Leahy of Vermont, nor the ranking member, Arlen Specter of Pennsylvania, has historically been inclined to give the presidency any leeway in the area of electronic surveillance.

In a perfect (or just more reasonable) world, the House and Senate Intelligence committees would start over. Constantly trying to amend FISA presumes that FISA's underlying structure (with its secret court of review) and its standard for issuing warrants ("probable cause") are worth preserving. We might remember our own system of separation of powers while picking up a thing or two from our European allies. Searches, electronic or otherwise, should be "reasonably" connected to the government's legitimate function of protecting us from terrorist attacks. (Or, in the words of the Fourth Amendment, searches should not be "unreasonable.") As Judge Richard Posner has noted, FISA

retains value as a framework for monitoring the communications of known terrorists, but it is hopeless as a framework for detecting terrorists. [The law] requires that surveillance be conducted pursuant to warrants based on probable cause to believe that the target of surveillance is a terrorist, when the desperate need is to find out who is a terrorist.