Article III Court by Day, Executive Actor by Night
By Dale Ton
Although the Foreign Intelligence Surveillance Court (FISC) has largely avoided the public limelight for the nearly four decades of its existence, its time in the shadows may be ending. The early days of President Donald Trump’s administration turned America’s attention towards the federal judiciary, with individual judges and the institution becoming subjected to widespread public scrutiny as challenges to the President’s early executive orders reached the federal bench. At the same time, allegations of collusion between the Trump campaign and Russia to influence the 2016 presidential election sparked a political controversy and a formal investigation by the Department of Justice (DOJ).
Amidst this veritable political firestorm, the FISC quietly re-emerged onto the national stage. News media outlets revealed in early 2017 that the FISC had granted a warrant in the summer of 2016 for Federal Bureau of Investigation (FBI) agents to investigate Carter Page, a national security advisor to then-presidential candidate Donald Trump, for his potential ties to Russian figures. The FISC’s role, although limited, for the time being, raises anew a question that has haunted the court for years: in our time-honored system of checks and balances, where does the court fit?
The FISC technically qualifies as an Article III court. The eleven judges of the FISC are federal district judges who were appointed by the President and confirmed by the Senate to sit on the federal bench. They are unilaterally selected by the Chief Justice of the United States to accede to the FISC. The FISC itself is an inferior court created by Congress, and the “cases” that come before it certainly involve federal questions over which it may exercise jurisdiction.
Once comfortably seated, the judges of the FISC essentially serve as executive actors. Their courtrooms host only Department of Justice and National Security Agency (NSA) personnel, and the numbers are damning: between 1979 and 2012, the FISC granted 33,942 surveillance warrants and denied 11. The FISC’s role is further complicated by its position within the executive branch itself. Since its only clientele are the DOJ and NSA, its operations are intrinsically linked with those two agencies. Of particular importance here is the DOJ, which is both the parent department for the recently-controversial FBI and the overseer for the special counsel investigation into the allegations of Russian collusion.
The very nature and operation of the FISC force it to assume a very executive-centric role in conjunction with agencies that are rarely found divorced from political controversy. The present situation illustrates how easily the FISC could be called upon to play a significant role in incriminating political actors within the executive branch. Indeed, although it has not been done, obtaining a warrant from the FISC to surveil the President of the United States is not without the realm of possibility. Situations like these only further align the FISC not with the executive branch as a whole, but specifically with the executive agencies that critics so often accuse it of coddling and further complicate its position as an Article III court.
Additional Source Material:
Stephen I. Vladeck, The FISA Court and Article III, 72 Wash. & Lee L. Rev. 1161 (2015), http://scholarlycommons.law.wlu.edu/wlulr/vol72/iss3/4.