FISA Is Not Law-Enforcement – It’s Not Interference with Justice Department Independence for White House to Ask for FISA Information

Again, not only was there no judicial role in national-security surveillance until 1978; even after FISA was enacted, administrations of both parties insisted that the president maintained constitutional authority under Article II to direct surveillance without judicial authorization.

The FISA Court of Review (the appellate court in the FISA system) appeared to endorse this proposition in a 2002 opinion (“The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.[Footnote omitted.] … We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.”)

I point this out not to wade into the constitutional argument over the president’s authority to conduct surveillance without judicial warrant. I am simply emphasizing that national security surveillance is a presidential function, not a judicial proceeding. The point of conducting FISA surveillance is not to build criminal cases; it is to enable the president to carry out his personal executive duty to protect the United States against foreign threats.

Consequently, it is specious to claim that, if the White House asks to see FISA court applications and orders, this would be a form of political interference in the law-enforcement mission of the FBI and Justice Department.

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