FISA SECTION 702: AN UNCONSTITUTIONAL
INFRINGEMENT OF EXECUTIVE POWER
III. HISTORY OF THE UNCONSTITUTIONAL FISA
As the nation emerged from the divisive and angry debates over the Vietnam War,54 Congress decided to ignore the constitutional separation of powers and usurp some of the President’s constitutional power for itself. In explaining the significance of the FISA bill during a 1976 Senate Judiciary Committee hearing, Senator Gaylord Nelson characterized it as “an agreement between this Congress and this President”55—as President Carter had already given it his blessings. And with Carter’s support, the unconstitutional bill could be signed into law. But it would remain essentially a political bargain between Congress and President Carter, as he lacked the legal authority to compromise the constitutional powers of future presidents.
The version of FISA that finally passed the Senate in 1978 was introduced two years earlier by Senator Ted Kennedy, who told the Senate Intelligence Committee: “For the last 5 years I ... have labored unsuccessfully to place some meaningful statutory restrictions on the so-
called inherent power of the Executive to engage in such surveillance.”56 Obviously, statutes cannot usurp independent powers vested by the Constitution in the President. So the key language in this sentence is the term “so-called.” That raises the question, “so-called” by whom?
The idea that the Constitution left the President able to manage “the business of intelligence” without legislative involvement was clearly expressed in the Federalist papers.57 And, as the FISA Court of Review noted in 2002, every court to decide the issue held the President has this constitutional power.58 The unanimous FISA Court of Review “assum[ed]” the President had the authority to conduct warrantless searches to obtain foreign intelligence information, and noted that if that were true then FISA could not constitutionally usurp that constitutional power.59
The Supreme Court is not supposed to resolve constitutional issues that are not necessary to decide pending cases.60 But the fact that in both Katz and Keith the Court majority expressly excluded warrantless foreign intelligence searches from its holdings is significant. And between 1967 and 1980 no less than five appellate court decisions affirming the President’s constitutional power to authorize warrantless foreign intelligence wiretaps were appealed to the Supreme Court, and not once did the Court grant certiorari.61 While one must be cautious about drawing inferences from a decision by the Court not to grant certiorari, surely if four justices had believed that American presidents might be violating the Bill of Rights they would have voted to hear at least one of these cases. When all three branches of government are in accord on the meaning of the Constitution, Senator Kennedy’s use of the adjective “so-called” seems highly inappropriate.
One might draw a parallel with the Court’s handling of cases involving the far more intrusive warrantless searches of commercial airline passengers and their luggage, without judicial involvement or the slightest individualized suspicion or probable cause to believe that a crime has or is about to be committed. The Supreme Court has, in passing, taken note of the fact that inferior courts were unanimous in upholding the
constitutionality of such searches—and even acknowledged that such searches were inherently reasonable given the risk of a plane being hijacked62—but it has never actually taken a case challenging warrantless airport searches. That is because all of the lower courts had reached the correct conclusion, and thus there was no need for it to spend time on the
Much of the current confusion about the need for a warrant can be traced to ignorance about the Supreme Court’s Fourth Amendment “special needs” jurisprudence. As the Court noted in National Treasury Employees Union v. Von Raab63:
[O]ur cases establish that where a Fourth Amendment intrusion serves special governmental needs, beyond the normal need for law enforcement, it is necessary to balance the individual’s privacy expectations against the Government’s interests to determine whether it is impractical to require a warrant or some level of individualized suspicion in the particular context.64And the Court has repeatedly recognized that “no governmental interest is more compelling than the security of the Nation.”65