No Longer a Neutral Magistrate: The Foreign Intelligence Surveillance Court in the Wake of the War on Terror

By Walter F. Mondale, Robert A. Stein & Caitlinrose Fisher. Full text here. 

Since the founding of our nation, the executive, judicial, and legislative branches of government have struggled with maintaining an appropriate balance between gathering intelligence for national security purposes and protecting the civil liberties of United States citizens. This difficulty is compounded by the uniquely challenging separation of powers issues national security problems present. In 1978, after the scale tipped too far toward “security” at the expense of personal liberties, the United States Senate formed the United States Select Committee to Study Governmental Operations with Respect to Intelligence Activities (Church Committee) to investigate executive overreach and recommend structural and statutory changes to ensure such overreach did not occur again. In response to the Church Committee’s recommendations, among other reforms, Congress enacted the Foreign Intelligence Surveillance Act (FISA) and created the FISA Court. FISA conformed with the Church Committee’s recommendations for over two decades, but, in the wake of 9/11, Congress significantly altered FISA’s scheme, opening the door once again to executive overreach. Because of post-9/11 changes to FISA, the executive branch is able to engage in practices similar to those that catalyzed the formation of the Church Committee and the enactment of FISA.

This Article chronicles the evolution of FISA and the FISA Court. Drawing from the unique perspective of Vice President Mondale—who, while a Senator, served as a member of the Church Committee and as chairman of the subcommittee that drafted the Church Committee’s final report on domestic intelligence activities, and, as Vice President, was instrumental to the enactment of FISA—the Article analyzes the ways in which the post-9/11 Act and court are in tension with their original design. The Article concludes that such overreach is possible in part because of structural changes to the FISA Court and the executive branch’s invocation of the need for secrecy in non-FISA Court proceedings. The recently enacted FREEDOM Act addresses some “liberty” concerns but fails to fix the structural issues that currently limit the authority and efficacy of the FISA Court. The FISA Court no longer serves its intended function as a specialized Article III court of limited jurisdiction. Rather, the FISA Court is more akin to an adjunct to the executive branch, lending legitimacy to intelligence operations without practically limiting executive authority. This Article concludes by recommending tangible actions Congress can and should take to reestablish the structures and processes recommended by the Church Committee—structures and processes that limit executive authority and comport with Article III of the United States Constitution.