The future of the FISA court is in doubt. Nancy Pelosi and other supporters of the court had hoped for a quick reauthorization of three parts of the FISA surveillance program, but a tweet from President Trump caused Republican support to erode. Also, Democrats defected over privacy concerns. Nancy Pelosi pulled the bill and the House voted to send the matter to a conference committee with the Senate.
Before this vote, President Trump had tweeted:
This broadens the scope of the inquiry beyond the three sections originally at issue, and may put the entire FISA process up for grabs in conference committee.
How much sympathy you have for the FISA court depends on what scenario is running through your head. Is terrorist activity afoot and lives will be lost unless the court acts quickly? Or is the court all too willing to grant warrant applications from the FBI based on unverified information produced by political operatives intent on sabotaging an opposition presidential candidate and incoming administration? Both scenarios are true.
There are two major constitutional issues with the FISA process. The first is the Fourth Amendment and civil liberties concerns arising from the surveillance process. The government seeks and the FISA court routinely grants generalized search warrants without reference to the facts of any specific case. General warrants are usually a big constitutional no-no. Critics say the court has gone off the rails by puffing up the ‘special needs’ exception to the Fourth Amendment. The Supreme Court created the exception, but has thus far confined it to narrow circumstances where a minimal intrusion on privacy is justified by the government's need to combat an overriding public danger. Drunk driving checkpoints provide one example. But now we have a secret court authorizing the collection and sifting of mountains of data whenever the government claims there are threats from espionage, cyberattack, or nuclear proliferation. These critics say the FISA court has created a secret body of law incompatible with Supreme Court jurisprudence in the process.
The second major constitutional issue revolves around Article III. Article III places the judicial power in the Supreme Court and such lesser courts as Congress may establish. However, some critics say the FISA court isn’t a court at all. No other court meets in secret, or holds proceedings without there being a case or controversy at bar. The FISA court approves warrants, but there is only one party - the government. There is no case being tried. Also, there is no right to counsel. The people who are to be surveilled don’t even know the court is meeting. An advocate sometimes speaks on their behalf, but the advocate isn’t even allowed to see the information the government is presenting to the court in support of its warrant application. Unsurprisingly, given the way things are set up, it’s exceedingly rare for the court to deny a warrant application from the government, leading critics to say the court is nothing more than a rubber stamp.
Thus, the FISA court is a Frankenstein creation, neither beast nor fowl. In this, it has something in common with the Consumer Financial Protection Bureau, a Franken-agency - the first independent agency ever headed by a single person whom the President could not fire except for cause. [Constitution Minute, 12/3/17] When I spoke to you about the CFPB in 2017, I mentioned the country runs into problems whenever we stray from the Founders’ designs. Another example is the War Power, which I spoke to you about the same year [Constitution Minute, 11/13/17], where we strayed from the Founders’ design that only Congress would have the power to declare war. The War Powers Resolution of the 1970s authorized Presidents to start military conflicts on their own and the result has been controversy about the constitutionality of presidential military actions ever since.
Some say the FISA court as we know it is dead and only two choices lay ahead - either meaningful reform of the current system, or throwing it all out and starting over from scratch. Let us hope, whatever happens, the end result is more faithful to the Fourth Amendment and the separation of powers than the system we currently have.
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