The Foreign Intelligence Surveillance Act Undergos Needed Scrutiny

The Fourth Amendment of the U.S. Constitution provides that "[t]he 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."

The goal of the Fourth Amendment is to protect people’s right to privacy and freedom from unreasonable intrusions by the government. However, this does not guarantee protection from all searches and seizures, but only those done by the government and deemed unreasonable under the law.

There is a tension between the right to privacy and the need for national security and the pendulum tends to swing from more security (during the cold war), less (in the mid-1970’s), even less after the dissolution of the Soviet Union, then more after 9/11, as the feeling of insecurity ebbs and flows.

Despite the guarantees in the Fourth Amendment, the U.S. established secret intelligence agencies – the FBI and the CIA.

“We want to exercise oversight of our secret intelligence operations, such as the Central Intelligence Agency (CIA) and the National Security Agency (NSA). Oversight is fundamental to democracy, and transparency is essential to oversight. You can’t control what you can’t see. But we also understand that complete transparency—exposing all of their activities to public scrutiny—would frustrate their effectiveness.” “The Surveillance State: Big Data, Freedom, and You”, Course Guidebook, The Great Courses, by Paul Rosenzweig, J.D., 2016, p. 7.

In the mid-1970’s, the Senate Church Committee and the Pike Committee uncovered Cold War–era abuses in U.S. intelligence agency practices.

“In the wake of their investigations, the Church and Pike Committees took on the full-time job of exercising oversight of the intelligence community. Senate Resolution 400 in 1976 and House Resolution 658 in 1977 established two intelligence committees as permanent select committees that continue to function to this day. The two committees were seen as an essential component reigning in the unregulated intelligence community.

By law, Congress must be kept “fully informed” of significant intelligence activities. Often, this means providing notification of covert action to the Congress in the form of notification to the intelligence committees. Sometimes, that notice might be delayed until after a covert action has taken place.

Although the two congressional committees have exercised some degree of control over the intelligence community, many dispute how much control they really muster.”

. . .

Meanwhile, Congress also sought to address the fact that foreign surveillance might not be subject to judicial review under the Constitution. To fix that problem, in 1978 Congress adopted the Foreign Intelligence Surveillance Act (FISA), which defines the procedures and processes for authorizing the physical and electronic surveillance of foreign powers and agents of foreign powers.

Under FISA, the government was authorized to conduct surveillance relating to foreign intelligence matters that might also include surveillance of American civilians acting as agents of a foreign power if—and only if—court authorization was obtained first.

And that authorization would be given only if the court found that there were probable cause to believe that the target of the investigation was in fact a foreign power or an agent of a foreign power. In addition, if the target of the surveillance were a U.S. person, there also had to be probable cause to believe that the person’s activities might involve espionage, or other similar conduct, in violation of the criminal statutes of the United States.

At the same time, because such matters under investigation would be highly classified, Congress chose to create a special court called the Foreign Intelligence Surveillance Court (FISC), where the government is able to present its evidence justifying surveillance in an ex parte manner. (“Ex parte” means a decision that a judge makes after hearing only one side of the case.) The FISC proceedings are also conducted behind the veil of classification, such that its decisions are typically not recorded or published for public consumption.” “Ibid, pp. 27-28.

FISA was a procedural mechanism to restrain the surveillance state.

Now, the release of the Department of Justice’s Inspector General Michael Horowitz’s Report on 2016 FBI Spying (“the IG report”) has raised new concerns. Central to Horowitz's findings are 17 mistakes in the FBI's surveillance applications that, taken together, effectively inflated the justification for the FBI’s wiretap of former Trump campaign foreign policy adviser Carter Page.

What is worrisome, is the following:

“Also rare is for FISA warrant requests to be turned down. During the 25 years from 1979 to 2004, 18,742 warrants were granted, while only four were rejected. Fewer than 200 requests had to be modified before being accepted, almost all of them in 2003 and 2004. The four rejected requests were all from 2003, and all four were partially granted after being submitted for reconsideration by the government. Of the requests that had to be modified, few were before the year 2000. During the next eight years, from 2004 to 2012, there were over 15,100 additional warrants granted, and another seven being rejected. Over the entire 33-year period, the FISA court granted 33,942 warrants, with only 12 denials – a rejection rate of 0.03 percent of the total requests.[4] This does not include the number of warrants that were modified by the FISA court.” Wikipedia.

Based on those statistics, one could conclude one of the following: (1) the court was being very accommodating to the requesters, (2) the requesters were really doing a good job of documenting their requests or (3)only asking for the warrants when critically necessary.

The sheer number excludes number 3, and the IG report puts number 2 in doubt. Therefore, the entire FISA act will be placed under scrutiny. In fact, after the release of the IG report, Judge Andrew Napolitano says the real problem is with FISA's secrecy and standards that conflict with the Constitution - i.e., FISA is unconstitutional. However, with the fears of the people of the United States after 9/11 and the mass shootings that have occurred in recent years labeled “terrorism”, it is unlikely that Congress will totally repeal FISA.

Probably the best we can hope for is much greater scrutiny over the actions of the FISC.