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What Went Wrong with the FISA Court

Summary: The Foreign Intelligence Surveillance Court is no longer serving its constitutional function of providing a check on the executive branch’s ability to obtain Americans’ private communications.

Published: March 18, 2015

he Foreign Intel­li­gence Surveil­lance (FISA) Court is no longer serving its consti­tu­tional func­tion of provid­ing a check on the exec­ut­ive branch’s abil­ity to obtain Amer­ic­ans’ private commu­nic­a­tions. Dramatic shifts in tech­no­logy and law have changed the role of the FISA Court since its creation in 1978 — from review­ing govern­ment applic­a­tions to collect commu­nic­a­tions in specific cases, to issu­ing blanket approvals of sweep­ing data collec­tion programs affect­ing millions of Amer­ic­ans.

Under today’s foreign intel­li­gence surveil­lance system, the govern­ment’s abil­ity to collect inform­a­tion about ordin­ary Amer­ic­ans’ lives has increased expo­nen­tially while judi­cial over­sight has been reduced to near-noth­ing­ness. This report concludes that the role of today’s FISA Court no longer comports with consti­tu­tional require­ments, includ­ing the stric­tures of Article III and the Fourth Amend­ment. The report lays out several steps Congress should take to help restore the FISA Court’s legit­im­acy.

Read the Fore­word


By James Robertson, former U.S. District Court Judge for the District of Columbia from 1994 to 2010. He also served on the Foreign Intel­li­gence Surveil­lance Court from 2002 to 2005, resign­ing the day after The New York Times repor­ted that the admin­is­tra­tion of Pres­id­ent George W. Bush was conduct­ing warrant­less surveil­lance of Amer­ic­ans’ elec­tronic commu­nic­a­tions.

Many people are surprised to learn that there is no “right to privacy” in the Consti­tu­tion. Privacy is more of a cultural construct than a legal one in this coun­try, and we are aiding and abet­ting its steady erosion with our depend­ence on the Inter­net, our credit cards and smart­phones, our flir­ta­tion with social media, and our capit­u­la­tion to commer­cial exploit­a­tion of Big Data. In a sense, we are all under surveil­lance, all the time — our where­abouts, activ­it­ies, and trans­ac­tions reduced to metadata and avail­able to anyone who can break the code — and we have brought it upon ourselves.

Surveil­lance by the govern­ment, however, is another matter. Distrust or at least wari­ness of a govern­ment that collects data about us lies deep in the amyg­dala of our civic conscious­ness. This admin­is­tra­tion may be oper­at­ing lawfully and with full regard to our rights and priv­ileges, but what about that one? Have we been read­ing too many novels, or is there a real threat of tyranny? Here, of course, is where the Consti­tu­tion comes in, with the Fourth Amend­ment’s guar­an­tee of “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreas­on­able searches and seizures.”

And here is where concern about the Foreign Intel­li­gence Surveil­lance Act comes in. Title III of the Omni­bus Crime Control and Safe Streets Act of 1968 estab­lished the rules for domestic govern­ment wiretaps. FISA, enacted ten years later, focused on foreign intel­li­gence. But it is the use (or misuse) of FISA, and FISA’s poten­tial allow­ance of unreas­on­able domestic searches and seizures, that the report­ing of James Risen and Eric Licht­blau and the disclos­ures of Edward Snowden have brought into sharp focus.

I have no criti­cism of the FISA Court. I know and deeply respect every one of its presid­ing judges for the last 30 years, and I am well acquain­ted with many of the other FISA judges who have served. They are, every one of them, care­ful and scru­pu­lous custodi­ans of the extraordin­ary and sens­it­ive power entrus­ted to them. The staff that supports the FISA Court, the Justice Depart­ment lawyers who appear before the FISA Court, and the FBI, CIA and NSA person­nel who present applic­a­tions to the FISA Court are superb, dedic­ated profes­sion­als.

What I do criti­cize is the mission creep of the stat­ute all of those people are imple­ment­ing.

The Bren­nan Center report makes an enorm­ous contri­bu­tion to our under­stand­ing of that mission creep. It explains clearly the history and devel­op­ment of FISA from its enact­ment follow­ing the Church Commit­tee’s expos­ure of uncon­trolled domestic spying by the FBI, through the Patriot Act amend­ments in the turbu­lent wake of the 9/11 attacks, to its present form. It explains, with a simpli­city and clar­ity access­ible to the layman but suppor­ted by a level of detail and cita­tion of author­ity that will satisfy students of the subject, why in its present form FISA is disturb­ing to civil liber­tari­ans and to consti­tu­tional schol­ars. And it distills its argu­ment into plain, power­ful recom­mend­a­tions for FISA’s amend­ment.

It is time, and past time, for Congress to give seri­ous atten­tion to the FISA prob­lems that are so clearly docu­mented here, and to act. The Bren­nan Center’s recom­mend­a­tions are not the only ones that have been put forth, but they are not doctrin­aire, my-way-or-the-high­way demands. They invite discus­sion, debate, and even (Heaven forfend) comprom­ise. They need to be care­fully considered.