85 Geo. Wash. L. Rev. 800
The Foreign Intelligence Surveillance Court (“FISC”) has an Article III
problem. Under section 702 of the Foreign Intelligence Surveillance Act of
1978 Amendments Act of 2008 (“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 section 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 section 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 section 702
lack the individualized facts of warrant requests or a direct link to criminal
prosecutions. Under Article III of the United States Constitution, the FISC’s
section 702 role may be neither fish nor fowl.
Closer examination reveals that although the FISC’s role under section
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,
which the Supreme Court invoked in Morrison v. Olson to uphold a statute
requiring judicial appointment of an independent counsel to investigate allegations
of executive misconduct in the wake of the Watergate scandal. 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
The FISC’s section 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 National Security
Agency 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.