By John O. Tyler, Jr., JD, PhD, HBU Program Coordinator for Legal Studies
This article explains and evaluates the Foreign Intelligence Surveillance Act (“FISA”), 50 U.S.C. §§ 1801-1885c. It also explains and evaluates the system of secret, ex parte courts established by FISA.1
Congress passed FISA in 1978 to prevent electronic surveillance violating First and Fourth Amendment liberties. Rather than preventing such surveillance, however, FISA actually creates a statutory pathway that nurtures and protects unconstitutional electronic surveillance. FISA also creates a system of secret, ex parte courts that systematically deny due process to Americans surveilled under FISA.
Recent allegations of FISA abuse compel a closer analysis of FISA and its secret court system. Federal officials implicated by these allegations dispute their truth. Consequently, this article does not accept any of these allegations as true. Instead, it bases its analysis of the FISA statute and its secret court system exclusively on the FISA text, the Constitution’s text, and U.S. Supreme Court opinions detailing the Constitution’s protections against electronic surveillance.
This article concludes that FISA and its secret, ex parte courts are unconstitutional for three reasons. First, the secret, ex parte FISA courts violate the “case or controversy” requirement of Article III. Second, FISA violates Fourth Amendment liberties from unreasonable searches and seizures. Third, FISA and its secret, ex parte courts violate the due process guarantees of the Fifth and Fourteenth Amendments.
This article lastly considers the FISA statute and its secret, ex parte court system from a policy perspective. FISA apologists argue that the secret FISA courts are necessary for national security. They further argue that national security interests should override Constitutional protections.
This article concludes, as the U.S. Supreme Court concluded in United States v. U.S. District Court, 407 U.S. 297, 320 (1972), that national security does not require secret courts. Furthermore, as the Supreme Court explained in U.S. District Court, national security interests do not override Constitutional protections. To the contrary, Constitutional protections are more essential in national security cases than in cases involving ordinary crimes. 407 U.S. at 313-324.