Academic journal article Washington and Lee Law Review

The FISA Court and Article III

Academic journal article Washington and Lee Law Review

The FISA Court and Article III

Article excerpt

Although it has existed for nearly forty years, the Foreign Intelligence Surveillance Court (FISC) has received newfound attention (and criticism) after, and in light of the 2013 disclosures of a series of controversial U.S. surveillance programs by former NSA contractor Edward Snowden. Among other things, the Snowden disclosures precipitated suggestions from at least some circles that the FISC had failed to serve as a meaningful check on the Executive Branch, at least largely because it had too easily accepted and signed off on the government's debatable (if not dubious) interpretations of the relevant statutory authorities.1

Contemporary critics of the role of the FISC have tended to focus on (1) the one-sided nature of most-if not all-proceedings before the court; (2) the unique (and perhaps troubling) role of the Chief Justice of the United States in selecting all of the FISC's judges-along with those of the Foreign Intelligence Surveillance Court of Review (FISCR)-without any outside input or oversight; and (3) the unconvincing reasoning in at least some of the key FISC opinions upholding the telephone metadata program.2 To that end, most calls for reform of the underlying surveillance programs disclosed by Snowden have come alongside calls for at least some reform of the FISC itself, whether by changing how its judges are appointed, providing for more regular adversarial participation by an outside "special advocate," or even reassigning some of the FISC's jurisdiction to "ordinary" Article III courts.3

Whatever their merits, many of these proposed reforms have been met with an array of prudential and constitutional objections-including concerns that changes to the composition and structure of the FISC would implicate Articles II and III of the United States Constitution.4 But perhaps most remarkably, these objections have revealed just how little effort has been undertaken to explain why the FISC is constitutionally permissible in the first place.5 After all, the FISC is an Article III court that was designed to exclusively hear ex parte, in camera applications from the government, notwithstanding Article Ill's interrelated requirements of a case or controversy and of meaningful "adverseness."6 And although the FISCR expressly held in 2002 that the nature of such warrant applications before the FISC satisfies Article III,7 its analysis was, charitably, incomplete.

This symposium Essay aims to fill that gap. In particular, my goal is to unpack the relationship between the FISC and Article III in some detail-and to provide a more detailed framework within which to assess which aspects of the FISC's caseload do and do not raise Article III concerns, and how contemporary reform proposals might assuage the former.

To that end, after providing a brief historical overview of the FISC, Part I turns to the original role of the FISC under the Foreign Intelligence Surveillance Act of 1978 (FISA),8 which exclusively encompassed applications for individualized "warrants," albeit under a different probable cause standard than is typically utilized in criminal cases. As Part I documents, whereas FISA as originally enacted raised a host of Article III concerns, the statute was ultimately predicated on an analogy to "ordinary" warrant applications-which have long been held to satisfy Article Ill's case-or-controversy requirement insofar as they are ancillary to subsequent judicial proceedings.

Part II turns to the post-1978 practice under FISA, along with the September 11-era changes to FISA, especially those embodied within the USA PATRIOT Act of 20019 and the FISA Amendments Act of 2008.10 As Part II notes, leaving aside the substantive merits of these developments in the abstract, both undermined at least to some degree the Article III justifications that carried the day when FISA was enacted. After all, practice under "classic" FISA revealed how unusual it was for FISA warrants to actually lead to subsequent criminal or civil proceedings-and how difficult it was for litigants to collaterally attack FISA warrants even in the rare cases in which they did. …

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