Searching for Federal Judicial Power: Article III and the Foreign Intelligence Surveillance Court

40 Pages Posted: 23 Aug 2016

See all articles by Peter Margulies

Peter Margulies

Roger Williams University School of Law

Date Written: August 22, 2016


The Foreign Intelligence Surveillance Court (FISC) has an Article III problem. Under § 702 of the 2008 FISA Amendments Act (FAA), which brought the Bush administration’s Terrorist Surveillance Program under the rule of law, the FISC typically proceeds ex parte, hearing only from one party: the government. FISC proceedings under § 702 therefore lack the benefit of adverse parties clarifying the issues, which the Supreme Court has linked with sound adjudication and judicial self-governance.

The FISC’s § 702 role does not fit neatly into the established categories of cases, such as search warrants, where ex parte proceedings are permissible. The broad surveillance practices that the FISC reviews under § 702 lack the individualized facts of warrant requests or a direct link to criminal prosecutions. Under Article III, the FISC’s § 702 role may be neither fish nor fowl.

Closer examination reveals that although the FISC’s role under § 702 is novel, it fits within Article III’s space for the exercise of judgment by independent courts. This Article makes that case via the congruency test that the Supreme Court invoked in Morrison v. Olson to uphold a statute passed in the wake of the Watergate scandal that provided for judicial appointment of an independent counsel to investigate allegations of executive misconduct. Building on Morrison, it argues that the test for compliance of statutes with Article III must be pragmatic, affording Congress a measure of flexibility. Two Article III cases from October Term 2015 – Bank Markazi v. Peterson and Spokeo, Inc. v. Robins – demonstrate that Congress is entitled to deference when it seeks to promote operational values such as speed and accuracy in dynamic domains such as national security, foreign relations, and emergent technology. The importance of timely responses to cyber threats fits the FAA within that rubric.

The FISC’s § 702 role also serves important structural values, by deterring executive branch surveillance abuses. Moreover, in the USA Freedom Act, passed after Edward Snowden’s disclosures about NSA surveillance, Congress established a panel of amici curiae to assist the FISC. Robust arguments by amici curiae, possibly augmented by a public advocate opposing government surveillance requests, can replicate most of the virtues of adversarial combat. Combining the virtues of adversarial argument with the operational and structural benefits of the FAA demonstrates the statute’s congruence with the history and practice of federal courts.

Suggested Citation

Margulies, Peter, Searching for Federal Judicial Power: Article III and the Foreign Intelligence Surveillance Court (August 22, 2016). Roger Williams Univ. Legal Studies Paper No. 171, Available at SSRN:

Peter Margulies (Contact Author)

Roger Williams University School of Law ( email )

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