The Foreign Intelligence Surveillance Act and the Separation of Powers

Abstract

In the 1950s and 1960s, J. Edgar Hoover’s Federal Bureau of Investigation (“FBI”) engaged in illegal and abusive surveillance and intimidation of political dissidents and civil rights activists, and in the wake of that government misconduct, Congress adopted the Foreign Intelligence Surveillance Act (“FISA”) to assert congressional and judicial oversight of executive branch agencies’ intelligence-gathering activities. There was a dramatic increase in requests for surveillance under FISA after the September 11, 2001 terror attacks, and Congress amended FISA to enhance the government’s authority to conduct such surveillance in response to those attacks.

When Congress discovered in the mid-2000s that the FBI and National Security Agency (“NSA”) had overstepped their authority to conduct electronic intelligence with the Bush administration’s blessing, Congress amended FISA again to permit the government to continue what had been illegal conduct. Beginning in 2013, former NSA contractor Edward Snowden disclosed documents to the public that showed the surprising magnitude of governmental surveillance and collection of information regarding cell phone and internet communications of Americans, which prompted calls for reform. The reform, the USA FREEDOM Act, became effective in November, 2015, and while it is an improvement in the law, it does not represent a great change in the access to information the government has had for more than a decade. What is more, the recent amendments make relatively minor changes to the FISA Court and the FISA Court of Review, established by the original FISA statute in 1978 to consider applications for electronic surveillance under the statute. These courts are unlike any others in the history of the United States. The judges of these courts are selected by the Chief Justice of the Supreme Court of the United States. Although they are United States District judges or United States Court of Appeals judges, there is no congressional involvement in their appointment to these courts. Their orders are mostly secret, and their proceedings are largely secret. With rare exceptions, the only parties to appear before these courts are the federal agencies seeking orders to permit them to gather information about subjects for investigation. Their proceedings are generally not adversarial in nature. The federal government appears before them to obtain approval for searches without objection. These courts are developing a body of secret law. They have developed precedent that no lawyer can research, understand, and criticize because it is secret law. While there is a FISA Court of Review,
no higher court has ever examined a decision of the FISA Court on appeal. The FISA Court has approved thousands of requests for surveillance and modified only a small handful of such requests. While the USA FREEDOM Act adopts some meaningful changes to these courts’ procedures, the statute does not make these courts the check on executive power that FISA’s authors envisioned. Rather, the FISA Court’s structure and limited review of applications for surveillance impose a very weak limitation on executive branch power. Ironically, FISA has contributed to the concentration of power in the executive branch and to the deterioration of the separation of powers, which is a core principle of American government. In the second part of this article, I detail the provisions and historical development of FISA, which is a narrative of largely unsuccessful efforts to monitor and limit executive branch agencies’ intelligence-gathering activities. In the third part, I discuss the FISA courts, including their authority, structure, and procedures. These courts, I argue, have very limited control over the executive branch’s surveillance and intelligence-gathering programs and thus offer a limited check on executive branch power. In the final section, I discuss the separation of powers principle in the American political system and how FISA has contributed to a decades-long trend of increasing concentration of power in the executive branch.