Academic journal article Harvard Law Review

Shifting the FISA Paradigm: Protecting Civil Liberties by Eliminating Ex Ante Judicial Approval

Academic journal article Harvard Law Review

Shifting the FISA Paradigm: Protecting Civil Liberties by Eliminating Ex Ante Judicial Approval

Article excerpt

The legal-academic reaction to the revelation of the National Security Agency's secret surveillance program (the Terrorist Surveillance Program, or TSP) was swift, vigorous, and almost universally negative. (1) Primary attention centered on the fact that the TSP operated entirely outside of the system of ex ante judicial review put in place by the Foreign Intelligence Surveillance Act of 1978 (2) (FISA). Under the proposed amendments to FISA currently under consideration in Congress, however, not only would the particular brand of surveillance utilized by the TSP be subject only to executive authorization, but so would many of the foreign intelligence surveillance techniques that had previously required ex ante approval from the secretive federal court that FISA created for that purpose, the Foreign Intelligence Surveillance Court (FISC). These legislative proposals therefore squarely present the question whether, and to what extent, ex ante judicial approval of foreign intelligence surveillance is necessary and desirable.

Part I of this Note provides a brief background of FISA's development and the current legislative proposals' positions on the necessity of ex ante judicial approval for foreign intelligence surveillance. Part II considers FISA's misplaced reliance on ex ante judicial review and rejects attempts on the part of some commentators to correct this problem through the enhancement of the judicial role. Part III offers a reconceptualization of the legal treatment of foreign intelligence surveillance, arguing that as both a constitutional and a policy matter it is necessary to rely primarily on political checks. Viewing the recent legislative proposals in this light, it seems that removing ex ante judicial review may ultimately enhance protection of liberty if several key political checks are included. Part IV concludes.

I. FISA AND EX ANTE JUDICIAL APPROVAL

A. A Brief History of FISA

Although the political developments leading to the enactment of FISA can be traced deep into American history, (3) the statute's immediate catalyst was the work of the Senate Select Committee to Study Government Operations with Respect to Intelligence Activities. The Church Committee, as it was popularly known, was "convened to investigate affairs surrounding the Watergate scandal and secret executive surveillance of political enemies." (4) Its final report detailed a startling history of constitutional violations stemming from electronic surveillance conducted under the malleable rubric of "national security." (5) Surveillance had "seriously infringed ... Fourth Amendment Rights" under "vague and elastic standards," leading to the government's accumulation of "vast amounts of information--unrelated to any legitimate government interest--about the personal and political lives of American citizens," and creating a powerful "chilling effect." (6)

When Congress set out to curb the abuses detailed in the Church Committee Report, the system it created relied heavily on ex ante judicial approval through the issuance of warrants. FISA constituted two Article III courts to implement the Act: the Foreign Intelligence Surveillance Court (FISC), composed of seven federal district court judges, which would issue orders authorizing surveillance, (7) and the Foreign Intelligence Surveillance Court of Review (FISCR), composed of three circuit court judges, which would hear appeals from denials. (8) A FISC order was required to conduct electronic surveillance unless the Attorney General issued a written certification under oath (9) certifying that the surveillance was "solely directed at" foreign powers, (10) carried "no substantial likelihood" of intercepting communication of a U.S. person, (11) and would be conducted with certain minimization procedures, (12) in which case the Attorney General could authorize warrantless surveillance for up to one year. …

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