A Response to “End the FISA”: Why It’s a Good Law and Sound Policy

Since the public release of a redacted version of a Report on Four FISA Applications and Other Aspects of the FBI’s Crossfire Hurricane Investigation (the “Horowitz Report”), the Foreign Intelligence Surveillance Act (FISA) has been subjected to an unprecedented level of scrutiny by the public, the press, and Congress. Coupled with an approaching sunset date for three expiring FISA authorities (none of which relates to any of the matters addressed in the Horowitz Report) some in Congress, and many FISA critics, see an opportunity to substantially alter the statutory framework that governs foreign intelligence electronic surveillance in the United States.

Conservative pundit and former federal prosecutor Andrew McCarthy recently joined the debate with a dramatic call to repeal FISA and, concomitantly, abolish the Foreign Intelligence Surveillance Court (FISC). McCarthy sees himself as an eloquent provocateur engaged in the noble promotion of conservative viewpoints, and his antipathy for FISA as an unwarranted intrusion into presidential authority is well-documented. But, in his latest installment, which builds to the conclusion that “FISA is a terrible system built on an unconstitutional foundation,” he distorts history and misapplies the law. His piece, “End the FISA,” decries the inconvenience created by the imposition of judicial participation in what it describes as the purely political process of gathering foreign intelligence. In a loosely assembled discourse, McCarthy manages to construct a spurious thread identifying FISA as one with the same ill-conceived (in his mind) arguments advanced by “progressive academics” against enhanced interrogation, Guantanamo detentions, and trial by military tribunals.

McCarthy begins with the premise that the FISC must be abolished, and then expands his argument to ultimately devour the entire FISA statute. His twofold argument for abolishing the FISC is premised upon his assertions that: (1) intelligence is not fit for judicial management, and (2) aggressive congressional oversight would be significantly more effective than the FISC in overseeing intelligence operations. To reach the first point, he misperceives the role of the FISC in the FISA process, and that misconception ineluctably leads to the erroneous premise endorsed in his second. A closer inspection of the relevant history and governing legal standards explains why.

The Relevant History Leading to FISA

Congress passed FISA in the aftermath of the congressional investigations into intelligence activities in the mid-1970s marked principally by the undertakings of the Church and Pike committees. The Church Committee, in particular, closed its investigation by issuing 14 reports on U.S. intelligence activities all of which were notably relevant to the congressional development of FISA, including one revealing that the National Security Agency’s (NSA) electronic surveillance capabilities (principally in connection with the Project Shamrock and Project Minaret programs) had been repeatedly directed at acquiring the communications of U.S. citizens without any consideration of Fourth Amendment requirements. The absence of appreciation for the observance of Americans’ constitutional rights in the course of these intelligence activities is demonstrated by the following exchange during a hearing held by the Church Committee (The testimony was provided by W. Mark Felt, who was the head of the Inspection Division at the FBI.  And, yes, it is the “Mark Felt” who was later revealed to be “Deep Throat” in connection with Watergate.):

Q:     Did the Inspection Division [of the FBI] conduct any investigation into the propriety of COINTELPRO [an FBI counterintelligence program]?

A:      Not into the propriety.

Q:     So, in the case of COINTELPRO, as in the case of NSA interceptions, your job as Inspector was to determine whether the program was being pursued effectively as opposed to whether it was proper?

A:      Right, with this exception, that in any of these situations, Counterintelligence Program [COINTELPRO] or whatever, it very frequently happened that the inspectors, in reviewing the files, would direct that a certain investigation be discontinued because it was not productive, or that there was some reason that it be discontinued. But I don’t recall any cases being discontinued in the Counterintelligence Program.

The revelations from these 1970s congressional inquiries built upon a series of Supreme Court rulings issued over the preceding decade which had reshaped Fourth Amendment doctrine around the concept of an individual’s “reasonable expectation of privacy.” The Court’s views outlining the constitutional reach of the Fourth Amendment with respect to electronic surveillance were outlined primarily in its decisions in Katz v. U.S. and Berger v. New York, and cemented the conclusion that the legality of domestic electronic surveillance depended on compliance with the Fourth Amendment.

Congress reacted to this new Fourth Amendment jurisprudence with the 1968 passage of the Omnibus Crime Control and Safe Streets Act which included, in Title III of that bill, a precise statutory protocol for electronic surveillance in connection with law enforcement activities that satisfied the criteria sketched out by the Court in Berger. Four years later, in its Keith decision, the Supreme Court determined that electronic surveillance in domestic national security investigations also must comply with the Fourth Amendment because, in the Court’s words, “Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillances may be conducted solely within the discretion of the Executive Branch. The Fourth Amendment does not contemplate the executive officers of Government as neutral and disinterested magistrates.”

Although apparently lost on those, like McCarthy, who object to FISA, the Supreme Court, in Keith, cogently grasped the basic issue that eventually birthed FISA and continues today to require paramount consideration whenever the government’s vast surveillance powers are used within the homeland or directed against its own citizens. The Court’s opening paragraph in Keith reads:

The issue before us is an important one for the people of our country and their Government. It involves the delicate question of the President’s power, acting through the Attorney General, to authorize electronic surveillance in internal security matters without prior judicial approval. Successive Presidents for more than one-quarter of a century have authorized such surveillance in varying degrees, without guidance from the Congress or a definitive decision of this Court. This case brings the issue here for the first time. Its resolution is a matter of national concern, requiring sensitivity both to the Government’s right to protect itself from unlawful subversion and attack and to the citizen’s right to be secure in his privacy against unreasonable Government intrusion.

While Congress had included a proviso in Title III that, as the Supreme Court phrased it in Keith, “[a]t most, [was] an implicit recognition that the President does have some powers in the specified areas,” the Court concluded that the reservation “merely provide[d] that [Title III] not be interpreted to limit or disturb such power as the President may have under the Constitution.” It is equally true that the Keith court limited its discussion to “domestic security” cases, and disclaimed expressing any opinion on activities that relate to foreign powers or their agents. But, while McCarthy reads the Title III proviso as an affirmative endorsement of presidential autonomy in the area of electronic surveillance conducted in the U.S. for foreign intelligence purposes, the Court found it “incongruous for Congress to have legislated with respect to the important and complex area of national security in a single brief and nebulous paragraph … [such that it was] inescapable that Congress only intended to make clear that the Act [i.e., Title III] simply did not legislate with respect to national security surveillances.” Further, while the Keith court disclaimed any opinion as to presidentially authorized electronic surveillance directed solely against foreign powers or their agents, neither has the Court ever endorsed the idea that the president has exclusive authority over such surveillances.

Finally, the Supreme Court, in Keith, confirmed that the propriety of a domestic security surveillance is determined by reference to the Fourth Amendment’s reasonableness standard and noted that, while a domestic security surveillance must meet that Fourth Amendment standard, distinctions between law enforcement surveillances and ones conducted for domestic security purposes might prompt Congress to consider protective standards and mechanisms more appropriate to the domestic security setting.

The Church Committee took note of the Keith decision in its reporting on the long list of abuses by U.S. intelligence agencies that repeatedly violated the constitutional rights of Americans, while also recognizing that the Court had not yet passed on the legality of warrantless electronic surveillance “where there was a significant connection with a foreign power, its agents or agencies.” It was against this confluence of intelligence misconduct and recent judicial interpretation that Congress undertook its first significant effort at legislating the contours of domestic electronic surveillance pursued for foreign intelligence purposes. That effort produced FISA.

FISA’s Structure as a Reflection of Constitutional Powers

Critics of FISA like to characterize the statute as an overreaction to those 1970s congressional investigations of intelligence abuses that illegitimately intrudes on the inherent constitutional powers of the president. But this argument withers in the face of accepted constitutional doctrine addressing the separation of powers, the application of the Fourth Amendment in the United States, and a careful examination of FISA’s structure in light of those constitutional precepts.

With the possible exception of undocumented immigrants, the Fourth Amendment and its corresponding jurisprudence apply to those in the United States – whether citizen or legal alien. FISA, itself, specifically includes citizens and legal aliens in the definition of “U.S. Person.” No interpretation of the Fourth Amendment, and certainly not one that has received any judicial endorsement, holds that a search or electronic surveillance conducted in the United States is immune from Fourth Amendment compliance simply because it is undertaken for foreign intelligence purposes. Thus, it is the Constitution, not FISA, that requires a domestic search or surveillance, even one initiated for foreign intelligence purposes, to comply with Fourth Amendment standards.

It is equally true that presidential powers, whatever their origin, must be exercised consistently with the constitutional limitations safeguarding civil liberties, and that even the president’s power over foreign affairs, “like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution.” Consequently, the notion that there is inherent authority buried in the interstices of Article II of the Constitution that confers upon the chief executive the power to order the warrantless surveillance of a citizen or legal alien in the U.S. is inconsistent with established constitutional doctrine.

Neither FISA (nor the FISC, for that matter) represents an overcorrection to the congressional investigation of intelligence abuses in the 1970s, as McCarthy contends in End the FISA. The statute actually constitutes the congressional response to the invitation (sure to become a command if ignored) in Keith that some form of judicial review is required in connection with electronic surveillance undertaken in the U.S. for domestic national security investigations. Only those completely smitten with the theory of unitary executive authority can continue to insist, after Keith, that inherent presidential authority, alone, provides adequate Constitutional cover for electronic surveillance directed at a U.S. person in the United States when initiated for “foreign intelligence purposes.” Indeed, the idea that the Fourth Amendment’s requirement of a prior judicial determination of probable cause can be obviated by characterizing the surveillance as ‘foreign intelligence’ rather than ‘law enforcement’ is, as the Foreign Intelligence Surveillance Court of Review characterized it, an “inherently unstable, unrealistic and confusing” diversion.

McCarthy’s insistence that FISA’s role for the FISC impermissibly injects judicial oversight into the foreign intelligence process thoroughly aggrandizes the role of the FISC. In any foreign intelligence or counterintelligence investigation or activity post-FISA, the identification of the target(s), the parameters of the collection or activity, the tradecraft and tools used, and the sources and methods employed all remain decisions made by the executive branch – just as continues to be true with respect to law enforcement investigations. In both instances, however, where the executive branch elects to employ the highly intrusive tool of electronic surveillance in the U.S. with its inherent Fourth Amendment implications, the role of the court is the same. Whether it be the FISC or any other court in the state or federal judicial systems called upon to consider a wiretap application in a law enforcement setting, the judicial body provides the neutral and detached determination that the surveillance meets the requirements of the governing statute and of the Fourth Amendment. These are the only substantive decisions the FISC makes in the course of a foreign intelligence or counterintelligence investigation.

Still, End the FISA insists that FISA impermissibly injects the judicial branch into what he insists is the political arena of foreign intelligence collection. McCarthy argues that the judiciary is institutionally ill-equipped to deal with foreign intelligence surveillance notwithstanding that, in Keith, the Supreme Court itself responded to this charge saying “[w]e cannot accept the Government’s argument that internal security matters are too subtle and complex for judicial evaluation.” Moreover, his insistence fails to appreciate, or acknowledge, the limited role of the FISC in the FISA process, or the obvious truth that, but for judicial review of statutory and Fourth Amendment compliance in the use of foreign intelligence electronic surveillance in the United States, FISA preserves executive autonomy in all other aspects of any foreign intelligence or counterintelligence operation.

But, McCarthy says, the Keith decision (which he never mentions by name) specifically disavows any intent to affect foreign intelligence surveillance directed solely at a foreign power or its agents. True, indeed, but he elides any mention of the fact that FISA preserves exclusive executive authority in this setting; i.e., where a surveillance is directed against a foreign power (such as a foreign government, its clandestine intelligence service, or any faction operating on its behalf). In this setting, FISA continues to afford the president the authority to “authorize surveillance without a court order” (i.e., warrantless surveillance) for up to one year to acquire foreign intelligence so long as the Attorney General certifies that the surveillance is (1) directed solely at acquiring the contents of communications transmitted by means of communications used exclusively between or among foreign powers (as defined in FISA), and (2) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a U.S. person is a party. In other words, FISA leaves foreign intelligence electronic surveillance directed at foreign powers or their agents, inside the U.S. or out, solely within the discretion of the president so long as there is no substantial likelihood of acquiring U.S. person communications. FISA then extends this same exclusive executive authority to the areas of physical searches and pen registers undertaken in settings involving only foreign powers or their agents.

Thus, the participation of the FISC is initiated, and then circumscribed, entirely by the potential that a proposed foreign intelligence electronic surveillance will acquire U.S. person communications. In such a setting, however, the Fourth Amendment proscribes a surveillance conducted solely at the discretion of the Executive Branch because, as the Supreme Court has observed, the Fourth Amendment does not contemplate the executive officers of Government as neutral and disinterested magistrates.

The reality is that in exercising the Article II executive authority, a president must, as noted earlier, do so “in subordination to to the applicable provisions of the Constitution.” The executive branch enforces the laws, and all substantive elements of a law enforcement investigation and prosecution lie within that executive province. However, that executive authority has not prevented the Congress from enforcing the Sixth Amendment’s right to a speedy trial through the Speedy Trial Act nor has exclusive executive authority to set the processes and procedures used in law enforcement investigations restrained the Supreme Court from setting standards (e.g., Miranda warnings) designed to insure the protection of constitutional rights afforded by the Fourth, Fifth and Sixth Amendments.

Unlike his distaste for judicial involvement, McCarthy readily concedes a role for Congress in the foreign intelligence arena; indeed, he insists that Congress would afford more effective oversight for foreign intelligence activities than is provided by the FISC. Given this concession, it is hard to understand whether his failure to see FISA as perhaps the most fundamental exercise of this congressional oversight role is merely obtuse inadvertence or deliberate omission.

In truth, FISA represents a congressional expression of its authority in the field of foreign intelligence, and that expression includes the decision that a body (the FISC) should provide limited oversight intended solely to insure that foreign intelligence electronic surveillance is conducted in accordance with FISA’s statutory mandates and with constitutional norms. Further, Congress has expressed its preference that the judicial body created by FISA be populated by Article III jurists immunized from political pressures by lifetime appointments, and that those serving on that body be selected by the nation’s foremost judicial official – the Chief Justice. Taken as a whole, FISA represents precisely the sort of structure for foreign intelligence electronic surveillance that conforms with the apogee of governmental authority as described in the construct of executive and legislative powers posited by Justice Robert Jackson in his famous concurrence in the Supreme Court’s decision in Youngstown Sheet & Tube Co. v. Sawyer – a decision that, not coincidentally, rejected President Harry Truman’s broad assertion that the executive power inherent in his Article II role as commander-in-chief of the armed forces allowed him to seize the steel mills during the Korean War. 

Some Final Observations

McCarthy decries The New York Times’s 2005 disclosure of the Terrorist Surveillance Program (TSP) initiated by President George W. Bush which, he claims, was properly justified solely based upon inherent presidential authority. (Full disclosure: I was equally appalled by the Times’ disclosure of the TSP.  But my objection was not predicated upon any belief in unbridled presidential authority. My objection was that the unauthorized disclosure of U.S. communications intelligence activities represented another violation of 18 U.S.C. § 798 left unaddressed by the U.S. government.) Notably, this is a position even the Bush administration eschewed with Congress in favor of predicating the TSP’s legitimacy upon both inherent presidential powers and the authority conferred on the president by the Authorization to Use Military Force (AUMF) approved by Congress in the aftermath of 9/11. Ironically, McCarthy is equally nonplussed by the Bush administration’s subsequent decision to seek congressional authorization of the TSP’s activities through the FISA Amendments Act of 2008. In McCarthy’s view, the “Lawyer Left’s” anti-Bush fervor drove the beleaguered Bush administration to abandon Article II purity in favor of securing congressional approval for the programmatic surveillance that now operates under the authority found in FISA Section 702 (50 U.S.C. § 1881a).

That this programmatic surveillance operation incidentally acquires thousands of U.S. person communications with Section 702 targets, and does so pursuant to collection activities conducted in the U.S. (despite the targets being non U.S. persons reasonably believed to be outside the United States) does not dissuade McCarthy from the view that securing congressional approval for the program’s inclusion in FISA undermines the purist assertion that autonomous presidential authority to conduct foreign intelligence surveillance provides all the constitutional sustenance needed for its operation. Surely, if McCarthy is suggesting, for example, that the Section 702 program could continue beyond its prescribed legislative sunset date sustained solely by the president’s Article II powers, such a posture exposes the frailty of his arguments better than any rebuttal I could offer. Indeed, reading the procedures and oversight that FISA provides for the Section 702 program as recounted by the Supreme Court in its Clapper decision (a recounting hardly necessary in view of the majority’s determination of that case on standing grounds), it is difficult to imagine even this Supreme Court, as currently constituted, sustaining that programmatic surveillance on its merits if its legitimacy were grounded solely upon the presidential power found in Article II.

End the FISA could not close without seeking to convert the FBI’s misfeasance with the Carter Page FISA applications into a misdirected criticism of the FISC and, derivatively, of FISA itself. Like others demanding FISA “reform,” McCarthy offers no detail as to how the FISC judges reviewing the FBI’s tainted Page applications were to have divined that the Bureau had failed in its internal due diligence, butchered its own Woods Procedures and doctored emails, among other failings. More to the point, McCarthy offers no insight as to how the human failings at the FBI, or even those of the FISC if one insists that the judges should have clairvoyantly discerned the FBI’s multiple failings with respect to those Page FISA applications, translate into an identifiable failing of any part of the FISA statute itself – as opposed to the human execution of that statute. Until he and other critics of FISA furnish such detail, it is hard to perceive their criticisms of FISA as anything other than political posturing and transparent opportunism.

Image: The headquarters of the Federal Bureau of Investigations (FBI) on a foggy morning on December 9, 2019 in Washington, DC. Photo by Samuel Corum/Getty Images

 

About the Author(s)

George Croner

Former NSA Principal Litigation Counsel