Banks on The Death of FISA

William Banks, Syracuse, has posted the abstract for a new article, The Death of Fisa. It is forthcoming in the Minnesota Law Review. The article itself is not posted, but the author can be reached through his SSRN page. Here's the abstract:

One of the most useful tools available to the government to learn about terrorist plans before they mature has been the Foreign Intelligence Surveillance Act (FISA). Enacted in 1978, FISA resulted from an inter-branch compromise. Until then, no president had ever conceded that the Congress could interpose any set of procedures to confine the constitutional discretion of the president to engage in electronic surveillance to protect the national security. However, beginning in the 1960s, the Supreme Court recognized an emerging constitutional right of privacy that is implicated when government conducts electronic surveillance, and courts began to limit warrantless electronic surveillance. Soon thereafter, the Watergate scandal and follow-on investigations of surveillance abuses by the Nixon administration and the administrations of earlier Presidents emboldened Congress and persuaded Presidents Ford and Carter to work toward a legislative scheme permitting secret electronic surveillance for foreign intelligence while providing for judicial involvement and congressional oversight to assure Americans that past abuses would not be repeated.

Five years after the September 11 attacks, FISA has unraveled. A series of events led to this state of affairs. September 11 created an aura of emergency in the government, and the emergency and its politics determined a range of policy and law developments. Congress essentially ceded its role in crafting legislation and in national leadership, while the executive branch seized the initiative to fight the global war on terrorism at home and abroad with the tools it could fashion. With a few notable exceptions, the courts have also been sensitized to the emergency.

In 2002, relying on changes to FISA approved after September 11 that loosen the requirement that “the purpose” of FISA surveillance is pursuit of foreign intelligence, the Department of Justice furthered the dismantling of one component of the 1978 compromise that resulted in FISA - the “wall” procedures that helped ensure that prosecutors would not build their cases upon or have their cases tainted by unlawfully obtained evidence. The Bush Administration also secretly circumvented the updated FISA procedures in undertaking a new domestic surveillance program through the National Security Agency (NSA) - the Terrorist Surveillance Program (TSP). Since the exposure of TSP in December 2005, the Administration has made legal arguments to justify not following FISA while it supports amendments to the act that would eviscerate it. If the TSP can work around FISA for one programmatic purpose, it would be difficult to stop other such evasions of the FISA scheme. One way or the other, it looks like FISA is dead.

The article is a requiem for FISA, and a plea for our Government to restore the constitutional values that FISA wisely straddled - promoting national security while safeguarding civil liberties. Whether from its cumulative complexity, the challenges of new technologies, or the efforts of the Bush Administration after September 11 to curtail and circumvent its provisions, the central premise of the FISA compromise - authorizing secret electronic surveillance for the purpose of collecting foreign intelligence, but subjecting applications to judicial scrutiny and the entire process to congressional oversight - has been lost.