Deter mined lawmakers undertook to pare back what they saw
as the “imperial presidency,” whose powers of unilateral
action had been expanded by the 20th century’s wars and
America’s emergence as a global superpower.
The purpose of FISA seems modest now: to provide a mod-
icum of due process to people inside the United States, particu-
larly American citizens, who were targeted for national-security
monitoring on suspicion of acting as foreign agents. Because
the purpose of such monitoring was not to collect evidence for
court prosecution, warrants were not required and judges had
no involvement. In marked contrast, for the surveillance (i.e.,
wiretapping, bugging, and physical searches) of persons sus-
pected of committing crimes, judicial warrants based on proba-
ble cause were mandated, under the Fourth Amendment and
statutory law.
The ground began to shift in 1972, when the Supreme Court
required judicial warrants for domestic terrorism cases, on the
theory that violence by American radicals was bound up with
constitutionally protected dissent. But the justices took pains to
say that they were not addressing foreignthreats to national secu-
rity; with such threats, it was assumed that the president main-
tained inherent constitutional authority to conduct surveillance.
This echoed Congress, which had excluded foreign threats from
its 1968 legislation regulating electronic surveillance, expressly
observing that obtaining foreign intelligence was a “constitutional
power of the President.”FISA blew by this caveat. The law created the FISC and
purported to require that, before commencing domestic sur-
veillance to collect foreign intelligence, the executive
branch—specifically, the FBI and the Justice Department—
would have to obtain judicial authorization based on a show-
ing of probable cause that the subject was acting as a
clandestine foreign agent. We must say “purported to require”
because the judiciary’s authority to manage what Congress
and the courts had repeatedly acknowledged was a constitu-
tional power of the president was a contentious issue.
As we often saw when President Obama adopted most of
the Bush-Cheney counterterrorism measures he had cam-
paigned against as a candidate, Democrats tend to be strident
opponents of the “imperial presidency” right up until the
moment they find themselves in the Oval Office. Both
President Jimmy Carter, in signing FISA for electronic sur-
veillance, and President Bill Clinton, in agreeing to its expan-
sion to cover physical searches, committed to cooperate with
the FISA system. They insisted, however, that the executive’s
constitutional power to order monitoring without court
approval remained undiminished. Of course, if the decision is
ultimately the president’s, the court’s rulings on warrant appli-
cations are merely advisory. That itself is constitutionally
problematic, because the jurisdiction of federal courts is lim-
ited to cases and controversies suitable for judicial resolution.
Unlike courts in many countries, our judicial branch is not
empowered to issue opinions that are merely advisory.Yet this is how things stood for nearly a quarter century.
The Justice Department maintained, as a matter of abstract
principle, that the president could conduct surveillance uni-
laterally, but it adhered to FISA to avoid a constitutional dis-
pute. For its part, the FISC ruled as if its decisions were final
but avoided a major dispute by granting nearly 100 percent of
warrant applications.
This led to complaints that the FISC was a rubber stamp.
The accusation, though, was part misconception and part
exaggeration. Since national security is a duty of the execu-
tive, not the judiciary, it’s only natural that the court would
defer to the intelligence professionals on the matter of for-
eign threats. If the agents responsible for protecting the
country have sketchy but frightening intelligence that, say,
al-Qaeda is plotting a mass-murder attack, what judge would
want to risk thwarting their investigation? The vast majority
of the time, when there is some evidence of foreign threats,
the judges shouldgreen-light surveillance. Nevertheless, the
FBI and Justice Department do engage in dialogue with the
FISC about warrant applications (these exchanges are clas-
sified because of the subject matter, and “ex parte”—i.e.,
only the government officials and a judge are present—
because covert surveillance requires that the target not be
alerted). If the court is uncomfortable with a scant probable-
cause showing, the government will often voluntarily with-
draw the warrant application for that target. Statistically, thatdoes not count as a ruling denying the application, but it is a
denial in effect.
That said, there is no gainsaying that an extremely high per-
centage of warrant applications have been granted. FISA
ostensibly provides due process, but the reality is that the
FISC relies heavily on the executive branch. The court thus
knew it was enmeshed in a key political function and that its
authority was questionable. This bred a natural reluctance to
second-guess. That reluctance was all the stronger because the
FISC lacks any practical means to be an effective check.
There is no adversarial process in FISA, as contrasted with
standard judicial proceedings in criminal-justice cases. In the
latter, once criminal charges have been filed, due process
allows the attorneys for a suspect to inspect the representa-
tions made by government officials in warrant applications,
probing their sufficiency and truthfulness. There is nothing
like this in FISA. Therefore, the court had no capacity to con-
duct such investigations on its own. Congress, in the mean-
time, deluded itself that, by delegating its oversight role to the
judiciary, it had achieved adequate insurance against execu-
tive overreach.
The Soviet Union’s collapse in late 1991 led to an irrational
end-of-history exuberance—the conceit that Western democ-
racy and its institutions, very much including the rule of law,
had prevailed and would inevitably be universally adopted.
When jihadists bombed the World Trade Center just 14
months later, the obvious existence of international terrorist
33FISA ostensibly provides due process, but the reality is that
the FISC relies heavily on the executive branch.
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