United States: When Separation Of Powers Is A Matter Of Life And Death

Last Updated: November 25 2013
Article by Stewart A. Baker

The Leahy-Sensenbrenner USA FREEDOM Act puts the Foreign Intelligence Surveillance (FIS) court in charge of shaping, overseeing, and enforcing minimization guidelines in connection with section 215, pen/trap orders, and section 702, largely taking the Attorney General out of the process of writing minimization guidelines.

I'm appalled, because the FIS court has taken control of minimization before, with disastrous consequences; it built a "wall" between intelligence and law enforcement without any legal basis for doing so, and enforced the wall so aggressively that the FBI couldn't use its best counterterrorism assets to track down the hijackers in late August and early September 2001.

In a very real sense, it was the FIS court's legal error combined with a self-righteous use of its contempt power that thwarted the country's last, best chance to stop the attacks.

That the court made terrible errors in 2001 is perhaps understandable. Repeating those errors is not.

But the more closely I observe the FIS court the more concerned I become that the peculiar role that we have created for the FIS court makes a repetition all too likely. I testified this week to the Judiciary Committee on the USA FREEDOM Act, and I took the opportunity to do a bit more thinking in this post about why the FIS court seems to have learned so little from its discreditable performance in 2001.

It may be that the problem is best seen as a constitutional failure. That is, practical politics are pushing the FIS court out of an article III role and into article I. And the FIS court's failings may be best seen as a problem in separation of powers.

At the outset, the separation of powers issue isn't obvious. The FIS court's principal statutory role is to approve or deny intercept and discovery orders involving foreign intelligence. This sounds like a role any court might play; judges approve warrants and wiretaps every day in a criminal context.

In practice, though, the FIS court's role is quite different. Sitting on the court pulls judges into some of the most sensitive intelligence programs the United States has. It suddenly sees the many terrible things that other nations and movements hope to visit on Americans; it sees how much the government must do just to keep our enemies at bay. It cannot help wanting the government to succeed.

But service on the FIS also exposes judges to some of the most sustained and unidirectional political criticism they are likely to experience in their careers on the bench. The court is routinely mocked as nothing but a rubber stamp, and it's clear that the mockery stings. In fact, the court recently announced that it was keeping statistics to show how often it forces modifications of FISA orders. See Letter from the Honorable Reggie B. Walton, Presiding Judge, the United States Foreign Intelligence Surveillance Court, to the Honorable Charles E. Grassley, Ranking Member, Committee on the Judiciary, United States Senate (Oct. 11, 2013), available at http://www.uscourts.gov/uscourts/courts/fisc/ranking-member-grassley-letter-131011.pdf.

This suggests that the political criticism is hitting home, and perhaps affecting the court's ability to apply the law with an even hand. After all, no one would want to be judged by a court that goes out of its way to publicize a scorecard of how often it rules against him.

These conflicting pressures, I suspect, push the court into a nit-picking overseer's mentality toward the intelligence agencies. Feeling quite legitimate pressure to grant surveillance requests, the court also feels pressure to show its independence.

As the court's "scorecard" and its occasional public statements suggest, the result is a court that flyspecks FISA orders to a fare-thee-well, demanding many modifications that may or may not be required by a strict reading of the FISA statute.

Ordinarily, of course, if a judge asks the government for things that go beyond his authority, the government appeals. But in the close confines of the FIS court, this is not an easy option. Neither the Justice Department nor the intelligence community wants to alienate the FIS court by suggesting that its demands have no basis in law. Instead, it is more comfortable for all if the intelligence community adopts as many of the court's suggestions as it can and explains why it can't adopt the others.

And so the FIS stops being a judicial process of argument and ruling; it becomes more of a negotiation, in which the government is tempted to accept any doable measure that the court asks for, whether justified by law or not, and the court does not press for changes that the government persuasively argues it cannot make. Once the court has negotiated minimization guidelines, it owns them, pet rocks and all. The FIS court necessarily feels responsible for ensuring that they are carried out as intended. To make sure that happens, the court plays an increasingly managerial role in the operation of intelligence agencies.

But the FIS court is not a manager. Real managers have many administrative tools to make sure their policies are carried out. The FIS court has only two: legal rulings and contempt findings. As the court becomes more familiar with the agency, it grows more invested in the implementation of particular measures and policies. The temptation to declare that its favored measures are required by law is very great.

Similarly, when the court is disappointed or surprised by how the agency has implemented its measures, the temptation to brandish the contempt power is strong.

In short, I suspect that the disaster of 2001 was not the result of one judge's bad temperament or faulty legal judgment. It is an institutional temptation, inherent in the managerial role that the FIS court has gradually assumed. Whether that role is consistent with the constitution looks more and more like a difficult question.

NOTE: My full testimony is here: Baker Testimony to Senate Judiciary – 11-21-13.

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