In the most unlikely of outcomes, everyone’s favorite crutch in the controversy over the National Security Agency’s eavesdropping programs has become the Foreign Intelligence Surveillance Court (FISC).
Sitting in a steel vault at the top of the Justice Department building in Washington, D.C., the Court issues warrants under the 1978 FISA law, enhanced by the 2001 Patriot Act, to conduct electronic surveillance of potential spies and terrorists.
Using judicial robes to defend valid national security measures should have both libertarians and conservatives worried.
With the revelations that the NSA has collected almost all calling records in the United States and foreign emails, our national leaders have sought cover behind the court’s inches-thick steel doors.
NSA director General Keith Alexander, and the chairs of the Senate and House Intelligence Committees, Senator Dianne Feinstein and Representative Mike Rogers, have all invoked the FISC’s blessings of the NSA’s surveillance programs.
After hanging his military intelligence agencies out to dry for the better part of a month, President Barack Obama finally followed Congress’s lead.
Defending the NSA programs this week, Mr. Obama argued that the process to authorize eavesdropping “is transparent.”
He claimed that “that's why we set up the FISA court.”
Distancing himself from “you know, Dick Cheney,” the president declared that “on this telephone program, you've got a federal court with independent federal judges overseeing the entire program.” And, trying to spread the blame even further, he also told the TV interviewer that “you’ve got Congress overseeing the program.”
Libertarians concerned about Americans’ Fourth Amendment rights should not feel at ease. But it is not the court’s secrecy or lack of defense counsel – a sensible recognition of the need to protect the intelligence sources and methods – that raises the core constitutional problem. Rather, it is that the judges cannot grant true Fourth Amendment warrants under the Patriot Act.
This becomes clear upon examining the text of the Fourth Amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Under the Patriot Act and FISA, the FISC does not issue warrants based upon probable cause that a target has committed a crime, which is the normal Fourth Amendment standard.
Instead, the judges issue a warrant based on probable cause that a target is the “agent of a foreign power,” which includes terrorist groups such as Al Qaeda.
Even though FISA may mimic the constitutional language, its authorizations cannot qualify as Fourth Amendment “warrants.” This becomes clear in light of the FISC’s reported approval of the collection of phone call records and foreign emails.
Neither of these programs single out a specific target who has likely committed a crime; they exist precisely to find terrorists who have concealed their activities as normal civilian conduct and have yet to violate the law.
But notice that the Fourth Amendment prohibits only “unreasonable” searches, on the one hand, and requires that “warrants” issue only upon a showing of “probable cause,” on the other.
As the Supreme Court has repeatedly recognized, searches can still meet constitutional standards if they are reasonable, even if they lack a warrant.
This seems nowhere more important than trying to stop terrorist attacks, which, in the words of Judge Richard Posner, can approach looking for a needle in a haystack.
FISA warrants, no matter how carefully considered, represent at best judicial agreement with the executive branch and Congress that these programs are broadly reasonable.
And this is where conservatives should be concerned.
Until the 1978 FISA, presidents unilaterally ordered electronic surveillance of enemy spies and, later, terrorists, based on their Commander-in-Chief powers.
Gathering signals intelligence – i.e., intercepting enemy communications – has long been a weapon in the executive national security arsenal. But stung by the Nixon administration’s abuses of the CIA and NSA to pursue its domestic political opponents, the post-Watergate Congress attempted to tame the commander-in-chief with the rule of judges.
The Constitution clearly resists the effort to legalize national security. Judges are very good at reconstructing historical events (such as crimes), hearing evidence from all relevant parties in formal proceedings, and finding fair results – because they have the luxury of time and resources.
National security and war, however, demand fast decisions based on limited time and imperfect information, where judgments may involve guesses and prediction as much as historical fact.
As the Framers well understood, only a single executive could act with the “decision, activity, secrecy, and dispatch” required for the “administration of war” (in the words of Alexander Hamilton’s Federalist No. 70).
The September 11 attacks made clear the harms of altering the Constitution’s original design for war.
Concerned that domestic law enforcement might use information gathered under the FISA’s lower warrant standards, the FISC erected the much-maligned “wall” that prohibited intelligence agencies from sharing information with the FBI.
That wall prevented the CIA from informing the FBI of the identities of two of the 9-11 hijackers who had entered the country.
A president acting under his commander-in-chief powers, without the unconstitutional involvement of federal judges, could have ordered the agencies to cooperate to track terrorists whose operations don’t stop at national borders.
Hiding behind the FISA court may allow our elected leadership to dilute their accountability for the electronic surveillance that has helped stopped terrorist attacks. It may even reassure the public that a pair of impartial judicial eyes has examined the NSA’s operations and found them reasonable.
But it will also advance the legalization of warfare, which will have the deeper cost of slowing the ability of our military and intelligence agencies to act with the speed and secrecy needed to protect the nation’s security. And judicial involvement won’t magically subject our intelligence operations to the Constitution.
If anything, it will further distort our founding document’s original design to fight and win wars.
John Yoo is Emanuel S. Heller Professor of Law at the University of California at Berkeley School of Law and a visiting scholar at the American Enterprise Institute. He served in President George W. Bush's Justice Department.