Tuesday, January 14, 2020

Unconstitutional FISA (1)

I've found a law journal article that explains the constitutional status of FISA quite well. What I'll do is paste the article into this blog in installments, since the original article (heavily footnoted) is 20 pages long. I'll omit, with one partial exception, the footnotes, but I'll leave the numbers in place for those who may with to consult the footnotes later. I'll also leave indicators for the page breaks in the original.

The misapprehension that most educated people labor under regarding electronic surveillance by the government in national security matters runs something like this: In the bad old days before FISA the US was a kind of Wild West of surveillance--the government pretty much did what it wanted and nobody gave a thought to the Fourth Amendment. After Watergate our paladins in Congress stood up to the threat of a totalitarian Executive and insisted that the Executive honor the Fourth Amendment of our Constitution--through the mechanism of the newly invented FISC, the Foreign Intelligence Surveillance Court, itself a creature of the Foreign Intelligence Surveillance Act (FISA) which established procedures that supposedly protected citizens from the Executive.

The reality, as writers such as Angelo Codevilla have explained, is rather different.

Under our Constitution the Executive--which means the President--has full power to act as Commander in Chief to protect the security of the nation:

"The executive power shall be vested in a President of the United States of America. ... The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States;"

Part of that "executive power" is the power to spy. That was a recognized part of Executive authority at the time, and the recognition of that power by the Founders is well documented--as we will see.

What was FISA about? It was about a power grab by liberals in the Legislative Branch who managed to intimidate the FBI. The FBI sought, as Bork, Codevilla, and others explain (for example), effective immunity from punishment for electronic surveillance they undertook. Fearing Congress, they sought that immunity through shielding by a Court order. As we are now seeing, even the most egregious abuses are almost impossible to bring to justice because of the prior approval of the FISC.

What this means, however, is that if Congress should abolish its unconstitutional creation--which is in effect simply an agreement between that most worthless of presidents, Carter, and Congress--the Executive does NOT lose its surveillance powers, because those powers are enshrined in the Constitution. Instead, we revert to the Constitution as it was well understood as of 1972. Well, that's not exactly correct. We never actually left the Constitution entirely, since Congress left loopholes that, in effect, recognize the true Executive authority. This came into play in particular after 9/11 and the GWOT/Patriot Act.

If all this sounds fantastic, be patient and read on. As you'll see, even the FISC of Appeals basically concedes these facts.

This is not to suggest that We The People are not at risk in our liberty from the greatly enhanced surveillance capabilities of our National Security State, the Deep State. We should be concerned and serious thought does need to be devoted to these issues. The biggest concern, however, should be for the political use of surveillance powers that we have recently seen and are still grappling with. What the abolition of FISA could provide, however, is to remove the protection of a court order. Thus, each individual who participated in political spying would be individually accountable. That might be the deterrent to abuse that we currently seem to lack.

All this should, of course, be read through the prism of what we know about Bill Barr's determination to protect the constitutional prerogatives of the Executive from harmful Legislativee encroachments.

Read on--Part 1, the introduction:


Robert F. Turner*

*Professor, University of Virginia. Distinguished Fellow, Associate Director and co-founder of the Center for National Security Law. Former three-term chair of the ABA Standing Committee on Law and National Security, Special Assistant to the Under Secretary of Defense for Policy, Counsel to the President’s Intelligence Oversight Board, and Acting Assistant Secretary of State for Legislative Affairs.


By way of background (given that what follows may surprise many readers and is at odds with modern conventional wisdom), the author has had an interest in the separation of national security constitutional powers for more than half a century—dating back to his college days, when he heard a presentation by the late Professor Quincy Wright of the University of Chicago on the topic. In 1922, Wright authored a landmark treatise entitled The Control of American Foreign Relations that remains among the preeminent works on the subject today.

In 1978, the author followed the debates over enacting the Foreign Intelligence Surveillance Act (FISA) while serving as national security adviser to Senator Robert P. Griffin, a member of the Senate Foreign Relations Committee. He concluded the statute was unconstitutional at the time. Indeed, he views FISA as but one of several such unconstitutional power grabs by Congress in the immediate post-Vietnam era.1 And, like the 1973 War Powers Resolution,2 FISA was something of a fraud.3
Footnote 3: In the 1972 Keith case, United States v. U.S. District Court (Keith), 407 U.S. 297 (1972), the Supreme Court held that wiretaps of purely domestic national security threats—with no ties to any “foreign power”—required a warrant under the Fourth Amendment. Id. at 320. Writing for the 8-0 majority (Justice Rehnquist having recused himself because he worked on the case while in the Justice Department), Justice Powell repeatedly emphasized that the case at hand “involves only the domestic aspect of national security,” and did not address “issues which may be involved with respect to activities of foreign powers or their agents.” ...

As a White House attorney in the early 1980s responsible for overseeing the legality of all U.S. Intelligence Community activities, at the request of the National Security Adviser, the author wrote a 235-page study about the constitutional powers of the President and Congress related to intelligence.4 He also wrote a 1700-page doctoral dissertation on “National Security and the Constitution” that examined these issues in far greater detail. Obviously, none of this proves his views are correct. But they should at least establish that these are not issues of first impression for him and that his views are the result of decades of serious scholarship and professional experience in both political branches.

Intelligence issues have hit the front pages repeatedly since the 9/11 attacks. Leaks by Bradley Manning and Edward Snowden have been portrayed as proving massive violations of the rights of Americans, as have exposés by USA Today,5 the New York Times,6 and other newspapers.


Despite the absence of clear evidence that these leaks disclosed significant intentional misconduct, Congress has reacted to public pressure—including by the enactment of Section 702 through the FISA Amendments Act of 2008 and 2017. In Section 702 Congress pretends to “authorize” (and constrain) the President’s warrantless collection of foreign intelligence information from foreign nationals believed to be located outside the United States. But, as will be discussed, the President already has this power vested in his office by the Constitution, and thus Congress lacks power to “delegate” it or constrain it beyond those limits imposed by the Constitution itself.

No serious scholar or expert familiar with Fourth Amendment jurisprudence would argue that collecting electronic intelligence about foreign nationals outside this country was unconstitutional. The primary argument was that the Section 702 program would inevitably collect incidental information about U.S. persons whose rights would thus be compromised.7 Critics were not reassured by the reality that Section 702 was enacted by Congress, has been repeatedly upheld as lawful, and is closely supervised by federal courts. It also prohibits any measures that would violate the Fourth Amendment and bars the targeting of foreign nationals abroad for the purpose of acquiring information about U.S. persons—whether inside the United States or abroad.

This Article argues that Section 702 did nothing more than add an unconstitutional provision to an already unconstitutional FISA statute. More specifically, it will argue that FISA and Section 702 violate Article II of the Constitution because they infringe on the President’s “executive Power.” Part I discusses the views of the Framers of the Constitution on executive power and foreign affairs. It argues that foreign intelligence collection and spying on foreign enemies were always understood to be included within the Nation’s “executive Power”—a power expressly vested in the President save for certain expressed and narrowly-construed “exceptions” given to the Senate or Congress. The Framers did not explain this because it was widely understood at the time. Part II discusses the preFISA use of executive power to order warrantless wiretaps and to protect national security. Rather than being condemned by courts at the time, this part will show that warrantless foreign intelligence wiretaps were understood to be constitutional. Part III discusses Congress’s reaction and how FISA and Section 702 eventually became law. This part also discusses related judicial decisions and concludes that FISA and Section 702 are unconstitutional. Finally, Part IV discusses the negative impacts that FISA


has had on national security as a matter of public policy. Put simply, congressional encroachments in this area have vindicated the concerns of the Framers of our Constitution and may well have prevented the Intelligence Community from collecting foreign intelligence information that could have prevented the 9/11 attacks.


  1. I don't have an opinion about whether FISA is Constitutional or about what the procedures should be for approving such an investigation.

    In the case of Crossfire Hurricane, DOJ/FBI officials who were supposed to exercise good professional judgment failed to do so. Even perfect procedures cannot always prevent the consequences of such bad judgment.

    On a Thursday, FBI Headquarters received Alexander Downer's memo about his conversation with George Papadopoulos. The HQ officials were in such a panic that they worked through the weekend in order to establish the Crossfire Hurricane investigation on Sunday. They were in a panic because Downer said that Papadopoulos "suggested suggested the Trump team had received some kind of suggestion from Russia". Essentially on that Sunday, the FBI began to investigate four members of Trump's campaign staff.

    This panic was absurd.

    This was not about a terrorist attack. Rather, this was about some political e-mails being revealed to the electorate. A large portion of that electorate thought that the revelation of such e-mails -- e.g. the DNC was favoring Hillary Clinton over Bernie Sanders -- was a very good thing.

    Those DOJ/FBI officials were too worried that Clinton might lose the election. It was not their business to worry about that. They acted unprofessionally and stupidly. They ruined the reputation of DOJ/FBI being a non-partisan institution.

    1. If I were making the argument to abolish FISA, I would argue that its existence provided stupid and unprofessional people with a cover for criminal conduct. Remove the cover and even stupid and unprofessional people might think twice about going criminal.

    2. I hasten to add, however, that I regard their activities as beyond merely "stupid and unprofessional."

  2. I am page 14 of the law journal article.

    I am not sure my views expressed here are that far astray of what I have been reading.

    I have noted that spying is as old as our foundation and was employed by our first Commander in Chief George Washington. This implies, to me at least, that precedent set forth was an Executive function solely, but the article makes clear it is an inherent, exclusive power that no Congress can, constitutionally usurp.

    FISA clearly does that, usurp. Problem is that it is really just an agreement between President Carter and Congress that tied the hands of future presidents.

    That act alone leads us to where we are today.

    Thing is, FISA, like the War Powers Act, is not sacrosanct, just law that can be overturned.

    This harkens back to my call for disbanding the FBI, etc. it can be done, but, obviously, will be difficult and is complicated.

    These laws and agencies are continually demonstrating an entrenched, pervasive, systematic lack of constitutional consciousness that demands something far more than attention or reform.

    Just because it is does not mean it should still be.

    1. "systematic lack of constitutional consciousness"

      And that includes among well meaning people. That's what puts our constitutional order in such jeopardy today.

    2. "This harkens back to my call for disbanding the FBI, etc. it can be done, but, obviously, will be difficult and is complicated."

      It can and should be done, and I'm not even sure how difficult it will be. We already have a federal law enforcement agency in the US Marshal Service.

      It turns out the FBI was never needed.