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A nation must think before it acts.
Since the public release of a redacted version of a Report on Four FISA Applications and Other Aspects of the FBI’s Crossfire Hurricane Investigation (the “Horowitz Report”), the Foreign Intelligence Surveillance Act (FISA) has been subjected to an unprecedented level of scrutiny by the public, the press, and Congress. Coupled with an approaching sunset date for three expiring FISA authorities (none of which relates to any of the matters addressed in the Horowitz Report) some in Congress, and many FISA critics, see an opportunity to substantially alter the statutory framework that governs foreign intelligence electronic surveillance in the United States.
Conservative pundit and former federal prosecutor Andrew McCarthy recently joined the debate with a dramatic call to repeal FISA and, concomitantly, abolish the Foreign Intelligence Surveillance Court (FISC). McCarthy sees himself as an eloquent provocateur engaged in the noble promotion of conservative viewpoints, and his antipathy for FISA as an unwarranted intrusion into presidential authority is well-documented. But, in his latest installment, which builds to the conclusion that “FISA is a terrible system built on an unconstitutional foundation,” he distorts history and misapplies the law. His piece, “End the FISA,” decries the inconvenience created by the imposition of judicial participation in what it describes as the purely political process of gathering foreign intelligence. In a loosely assembled discourse, McCarthy manages to construct a spurious thread identifying FISA as one with the same ill-conceived (in his mind) arguments advanced by “progressive academics” against enhanced interrogation, Guantanamo detentions, and trial by military tribunals.
McCarthy begins with the premise that the FISC must be abolished, and then expands his argument to ultimately devour the entire FISA statute. His twofold argument for abolishing the FISC is premised upon his assertions that: (1) intelligence is not fit for judicial management, and (2) aggressive congressional oversight would be significantly more effective than the FISC in overseeing intelligence operations. To reach the first point, he misperceives the role of the FISC in the FISA process, and that misconception ineluctably leads to the erroneous premise endorsed in his second. A closer inspection of the relevant history and governing legal standards explains why.