The Magazine

But Who Will Surveil the Judges?

The FISA court and its failings.

Nov 5, 2007, Vol. 13, No. 08 • By GARY SCHMITT
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Increasingly, we are asking the judges who sit on the FISA bench to make decisions that judges have avoided making since the country's first days--that is, to give opinions on matters that are not directly tied to a real case or provide for any adversarial process. No doubt these judges would take seriously the job of assessing the reasonableness of the various procedures the administration might be required to submit to them under the new laws, but is this the proper task for a judge, let alone judges who operate in secret and are themselves unaccountable? Far better to give the president back the constitutional authorities he has traditionally held and allow Congress to exercise the full powers of oversight that it unwisely delegated to the FISA court back in 1978.

Gary Schmitt is director of the program on advanced strategic studies at the American Enterprise Institute. Previously, he served as the Democratic staff director of the Senate intelligence committee and executive director of the president's Foreign Intelligence Advisory Board.