Tuesday, January 14, 2020

Unconstitutional FISA (6)

Professor Turner concludes. Here are the key questions as they appear to me.

Is the solution to the problems associated with FISA "reform"? More better regulations on the collection of data?

Or, would it be better to allow the government to do as it already is doing--collect everything--but focus on the predication for their investigation? Put serious punishment in place for the misuse of government surveillance powers?



Congress has already renewed Section 702 of FISA for six more years.89 Under present circumstances, the Congress had to have voted “yes” because a failure to renew would have been widely interpreted as a denial of critically important intelligence information that would likely cost countless more American lives.

Because of space constraints, this Article has not focused on the substantive objections some have made to the President’s collection of foreign intelligence information involving foreigners outside the United States.

On its face, it is absurd to argue that the President lacks the constitutional power to authorize the warrantless collection of foreign intelligence about foreign nationals abroad—the Supreme Court has never suggested that such individuals are protected by the Fourth Amendment. Indeed, this issue was addressed by the Court in the 1990 case of United States v. Verdugo-Urquidez,90 and decided in the negative.91 Furthermore, Section 702 expressly prohibits any search that would violate the Fourth Amendment.

One concern is that while engaging in perfectly lawful searches to prevent terrorist attacks, the government might inevitably capture communications between the target of the search and a U.S. person abroad or within the United States. But as the FISA Court of Review observed in the 2008 case In re Directives: “It is settled beyond peradventure that incidental collections occurring as a result of constitutionally permissible acquisitions do not render those acquisitions unlawful.”92 The Supreme Court has made it clear that communications captured pursuant to a lawful electronic intercept may be admitted into evidence in court against third parties.93 For example, if a family member of the targeted individual uses the phone and admits to a crime, or if an individual unknown to authorities confesses to criminal misconduct while communicating with the target of a lawful warrant.94 Once the initial intercept is lawful, any “rights” of third parties become essentially collateral damage. 


Members of Congress take an oath of office to defend the Constitution.95 It is important, and it should be taken seriously. So, while the initial goal was to reauthorize Section 702, that was ideally but a first step. It is abundantly clear that—as John Jay explained in Federalist 64—the Constitution vests “the business of intelligence” in the President as part of the nation’s “executive Power.” So, at some point, Members of Congress should consider repealing the entire FISA statute and restore the original constitutional scheme. In the alternative, they have the option of seeking to amend the Constitution to alter the separation of powers in this area. 

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