The FISA Court’s Essential Purpose – Analysis

By George W. Croner*

(FPRI) — Although memories fade, there are still those of us who remember the remarkable congressional hearings in the 1970s revealing what seemed to be an endless parade of abuses conducted by the nation’s intelligence services at the direction of the president in the name of national security. “COINTELPRO,” “MKULTRA”—the names may not mean much today—but these programs, and others like them, were symbolic of an era in the conduct of foreign intelligence where the Executive Branch operated with unfettered discretion. Those congressional hearings led to some profound changes in the way U.S. intelligence services have operated. Today, however, prominent critics appear to have forgotten the abuses that precipitated those changes while seeking to turn back the clock at precisely a time when current events suggest that the checks and balances created by those reforms are more important than ever.

The first limits on such unchecked executive discretion came in the form of a Supreme Court decision in 1972. In U.S. v. U.S. District Court, known as the Keith case,^[1] the Supreme Court concluded that electronic surveillance conducted domestically, even for national security purposes, required a judicial warrant. Keith, as it turned out, was simply judicial preamble to the parade of unhygienic activities carried out by the nation’s intelligence services and outed during the dramatic hearings conducted in each house of Congress by committees operating under the chairmanship of Senator Frank Church, in the Senate, and Congressman Otis Pike, in the House.

Among the intelligence collection programs revealed during the Church and Pike committee hearings were projects Minaret and Shamrock. Minaret was a program that had the National Security Agency conduct warrantless monitoring of the communications of multiple American citizens included on an executive branch-created “watch list”—people like Jane Fonda, Dr. Martin Luther King, and columnists Tom Wicker, Art Buchwald, and Jack Anderson. Shamrock was an arrangement that enlisted the “cooperation” of companies like Western Union, ITT, and RCA to provide the National Security Agency with daily access to all incoming, outgoing, or transiting telegrams generated using the facilities of these cooperating companies. These programs were implemented by the executive branch with no warrants, and no judicial or congressional oversight of any kind.

FISA was a direct response to the concerns raised by programs like Shamrock and Minaret, and a congressional response to the Keith decision which required judicial warrants for any electronic surveillance conducted in the United States—even for national security purposes. In fashioning FISA, Congress was acutely aware that electronic surveillance for national security and foreign intelligence purposes was directed at acquiring communications intelligence—a form of intelligence information that Congress had long recognized by statute as “both vital and vulnerable to an almost unique degree.” Keith requires a judicial warrant, but the unique vulnerability of electronically acquired intelligence also demanded a warrant process commensurate with the protection of the intelligence sources and methods used in conducting such surveillance. The legislative solution for this delicate balancing of oversight and security is the Foreign Intelligence Surveillance Court (FISC), and it has admirably performed its functions for 40 years.

But, on July 23, 2018, the Wall Street Journal published an opinion piece authored by William McGurn advocating the abolition of the FISC. McGurn, who formerly served as chief speechwriter for President George W. Bush, is a prominent conservative columnist who now writes the Journal’s weekly Main Street column and sits on the paper’s editorial board. McGurn’s is a voice well-known within conservative circles with a ready-made platform and broad audience to express views like his call for abolition of the FISC. According to McGurn, the Foreign Intelligence Surveillance Act (FISA), and in particular the insertion of the FISC into the process by which foreign intelligence electronic surveillance is approved, have proven to be ill-conceived intrusions into the Executive Branch’s control over such surveillance. Responding to the seemingly endless controversy surrounding the Carter Page FISA surveillance, McGurn argues that “Congress should consider getting rid of FISA courts altogether.”

McGurn urges that we abandon a process that for the past four decades has produced an element of judicial review into the conduct of foreign intelligence surveillance in the United States; indeed, as has been noted, it makes the United States “the only country in the world, the only one of 197 sovereign nations, that interposes a court between the government and its citizens” in connection with the conduct of foreign intelligence surveillance.^[2] The FISC represents, not an executive abdication of responsibility for electronic surveillance, but arguably a constitutionally mandated (remember Keith) interposition of a neutral magistrate into the surveillance process to insure that the executive branch, which is charged with executing such electronic surveillance as is necessary to protect the national security, performs its duties consistently with the rights guaranteed in the Constitution to all those surveilled.

McGurn invokes an old 1978 editorial piece authored by conservative darling Robert Bork as support for his call to extinguish the FISC. But neither Bork, in 1978, nor McGurn, in 2018, addresses Keith or its impact on domestic surveillance where conducted for foreign intelligence or counterintelligence purposes. Neither Bork, nor McGurn, speaks to the past abuses revealed in programs like Minaret and Shamrock. Both Bork and McGurn rely on the view that there is unfettered executive authority to conduct such foreign intelligence surveillance but, as Keith holds, executive power in this field is not plenary.

Indeed, it is FISA that creates the sort of structure for foreign intelligence electronic surveillance that conforms with the highest level of governmental authority 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.^[3] Shamrock and Minaret, programs unknown to the public and to the Supreme Court when it decided the Keith case in 1972, provide an insight into the dangers posed by untrammeled executive authority in the conduct of foreign intelligence electronic surveillance without the sort of oversight that FISA, and the FISC, are intended to provide. Without attempting here to provide any sort of detailed legal analysis of the constraints that might be found to extend to the president’s authority to unilaterally direct electronic surveillance for national security purposes, Keith includes language where the Supreme Court observes that: “Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillances^[4] may be conducted solely within the discretion of the Executive Branch;” and “[t]he Fourth Amendment contemplates a prior judicial judgment, not the risk that executive discretion may be reasonably exercised.”^[5] While intending in no way to extrapolate these phrases into a broader expression of what the Supreme Court might say today regarding unfettered executive control over foreign intelligence electronic surveillance, neither can these passages be ignored in any discussion of abolishing the FISC—but McGurn fails to address them in any way.

If, as McGurn suggests, Congress were now to eliminate the oversight provided through the FISC without creating an alternative that furnishes a comparable mechanism for protection of constitutional liberties against executive overreach,^[6] a serious question would arise as to whether even this Supreme Court, as currently constituted, would lend its imprimatur to the return of unfettered executive discretion in the conduct of electronic surveillance directed against U.S. citizens, even for foreign intelligence purposes. After all, as George Santayana observed, “Those who do not remember the past are condemned to repeat it.”

Notably, for all the recent squabbling regarding the FISC process, it largely resembles the ex parte procedures used with any “conventional” law enforcement wiretap: a single judicial official decides whether or not to permit surveillance based on an application presented in a closed proceeding by representatives of the executive branch (i.e., generally employees of the Justice Department). Moreover, the judges serving on the FISC and charged with reviewing and approving FISA applications or certifications are Article III judges (chosen by the Chief Justice of the United States) who, aside from their FISC responsibilities, perform the duties regularly assigned to U.S. district and circuit court judges in adjudicating civil and criminal proceedings. Consequently, these judges already are fully conversant with overseeing the safeguards governing the conduct of electronic surveillance for law enforcement purposes and can bring that knowledge and experience to bear in applying FISA’s provisions to electronic surveillance initiated for foreign intelligence purposes.

The FISC exists solely to insure that electronic surveillance conducted for foreign intelligence purposes is conducted consistently with the requirements of the FISA statute and with Constitutional guarantees. While critics at each end of the political spectrum call either for greater transparency in FISC proceedings or, conversely, for the abolition of the FISC itself, 40 years of experience has confirmed the efficacy of the FISC’s performing the often awkward, at times unpopular, and indisputably difficult balancing of national security considerations and civil liberties that is inevitably implicated in the conduct of surreptitious electronic surveillance for foreign intelligence and counterintelligence purposes.

These are troubled times for all those who recognize the importance of the nation’s foreign intelligence efforts, and appreciate both the delicacy of those operations and the vulnerability of the systems used to conduct those efforts. But the national debate over what is essentially political squabbling should not endanger an institution like the Foreign Intelligence Surveillance Court that, for 40 years, has credibly presented a judicial buffer against potential executive overreach in the electronic monitoring of its citizens and, in doing so, has shown the world how a democracy can successfully balance its security needs with the civil liberties of its citizens.

About the author:
*George W. Croner, a Senior Fellow at FPRI, previously served as principal litigation counsel in the Office of General Counsel at the National Security Agency. He is also a retired director and shareholder of the law firm of Kohn, Swift & Graf, P.C., where he remains Of Counsel, and is a member of the Association of Former Intelligence Officers.

Source:
This article was published by FPRI.

Notes:
^[1] 407 U.S. 297 (1972).

^[2] A Rare Look Inside America’s Most Secretive Court, Boston College Law School Magazine, January 21, 2018 (quoting currently serving FISC judge Dennis Saylor).

^[3] 343 U.S. 579, 635-636 (1952)

^[4] It bears note that Keith addressed itself to what it described as “domestic security surveillances” for national security purposes, and the Court’s focus in Keith was on surveillance undertaken in the United States. However, although titled the “Foreign Intelligence Surveillance Act,” electronic surveillance regulated by Subchapter 1 of FISA (i.e., “traditional” FISA electronic surveillance) is defined as: (1) the acquisition of the contents of communications by targeting a particular known U.S. person who is in the United States; (2) the acquisition of any wire communication if such acquisition occurs in the United States; (3) the intentional acquisition of any radio communication where the sender and all recipients are located in the United States; and (4) the installation of a monitoring device in the United States to acquire information. Thus, it would be myopic not to consider the impact of Keith on any effort to rework FISA or the FISC’s role in the FISA process.

^[5] 407 U.S. at 316-318.

^[6] Despite the views expressed by McGurn and the current distractions fostered by the Republican majority of the House Intelligence Committee and its chairman, there is little to suggest that Congress has any appetite for discarding the protections and oversight afforded by FISA. As recently as 2015 in the USA Freedom Act, Congress added the role of amicus curiae to the FISC process so that the executive branch no longer is the sole participant in the court’s consideration of whether or not to approve surveillance requests. More recently, in the extension of FISA authority approved just this past January, Congress included provisions to compensate amicus curiae, barred “abouts” collection, and mandated unclassified disclosures of the minimization procedures used by U.S. intelligence agencies in connection with U.S. person information collected in FISA surveillances. These actions suggest that Congress has no intention of ceding plenary control over foreign intelligence electronic surveillance to the executive branch.