Is the FISA Court Constitutional?

The Constitution requires more than a rubber-stamp judicial tribunal.


After President Richard Nixon left office in 1974, a bipartisan congressional investigation discovered many of his constitutional excesses. Foremost among them was the use of FBI and CIA agents to spy on Americans in violation of federal law and the Fourth Amendment to the Constitution. Nixon argued that the government needed to monitor "subversives" in order to shore up the "national security." As for breaking the law and violating the Constitution, Nixon defended himself by proclaiming in a now infamous post-presidency interview with David Frost that: "When the president does it, that means that it is not illegal."

That Henry VIII-like statement was too much for Congress to bear in the Carter years, so it enacted the Foreign Intelligence Surveillance Act (FISA), which prohibited domestic spying unless the feds first obtained search warrants for surveillance from a federal judge sitting on a newly created FISA court. The FISA court, populated by sitting federal judges assigned there by the chief justice, was charged with issuing secret general warrants based upon secret evidence or no evidence and all in violation of the Constitution, which requires the presentation of evidence that constitutes probable cause of crime as the sole linchpin for the issuance of a search warrant.

When Edward Snowden, the former contractor to the National Security Administration (NSA), revealed that since at least 2004 the FISA court has been issuing general warrants to NSA agents and to telecoms and Internet service providers directing that the NSA capture in bulk the content of telephone calls and emails and texts sent into, out of or within the United States, we learned a bit more about the operation of the FISA court.

What we learned makes it self-evident that the FISA Court itself is unconstitutional.

The Constitution establishes a limited federal government, which includes a limited federal judiciary. Because the Framers feared that federal judges might act as super-legislatures and go about declaring unconstitutional whatever legislation or presidential actions displeased them, they wrote into Article III of the Constitution the absolute prerequisite of the existence of a case or controversy before the jurisdiction of any federal court could be invoked.

The case or controversy requirement was drafted to prevent courts from rendering advisory opinions whereby they simply declared that they had certain authority or that some statute or executive act was unconstitutional. The case or controversy requirement has been uniformly interpreted by the Supreme Court to require either a plaintiff whose allegations state a case of real palpable harm against a defendant, or a defendant in a criminal case who is in real jeopardy of losing life, liberty or property at the hands of the government before a federal court may have jurisdiction.

The case or controversy requirement demands that there be real adversity between two or more distinct entities each of which has a stake in the outcome of a dispute before a federal court can exercise any jurisdiction. Federal courts can only resolve disputes; they cannot rule with finality in the abstract or when approached by only one party. They can grant preliminary temporary relief to one party—in order to freeze the status quo and in anticipation of an adversarial contest on the merits—but they cannot rule when only one party is noticed and shows up.

This is precisely how the FISA court functions, and yet we have no merit-based ruling by the Supreme Court on its constitutionality. We do, however, have a solid indication as to how the court would rule. The seminal case in Supreme Court history is Marbury v. Madison (1803). In that case, Congress had attempted to give original jurisdiction to the Supreme Court to hear a dispute that the Constitution said could only be heard by that court in an appellate setting. In denying Marbury's meritorious claim, the court held definitively that Congress cannot alter the Constitution's requirements that serve as a precondition for invoking the jurisdiction of a federal court.

But this is just what Congress did with FISA. In the FISA court, only the government appears, seeking a generalized search warrant without regard to the facts of any specific case. There is no case or controversy in the constitutional sense as there is no adversariness: No plaintiff is suing a defendant, and no defendant is being prosecuted by the government. Absent adversariness, the federal courts have no jurisdiction to do anything.

This flawed system is complicated even further by the fact that should the FISA court deny an application for a general warrant because it believes the government's procedures to be illegal or unconstitutional, those court orders are non-binding and the government has ignored them. Unenforceable rulings that may be disregarded by another branch of the government are not judicial decisions at all, but impermissible advisory opinions prohibited by the Framers.

When a FISA court judge rules that the NSA has the constitutional power to spy on Americans about whom it has no evidence of wrongdoing, as one judge did two weeks ago, because that ruling did not emanate out of a case or controversy—no one was in court to dispute it—the court is without authority to hear the matter, and thus the ruling is meaningless.

By altering the constitutionally mandated requirement of the existence of a case or controversy before the jurisdiction of the federal courts may be invoked, Congress has lessened the protection of the right to be left alone that the Framers intentionally sought to enshrine. But don't expect the government to wake up to this threat to our freedom. Its consistent behavior has demonstrated that it doesn't care whether it violates the Constitution. Instead, expect the president's secret agents and the politicians who support them to hide their wrongdoing behind more layers of secrecy.

NEXT: Brickbat: Checkmate

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  1. Judge Napolitano seems to be forgetting the FYTW clause, which supersedes all of the otherwise well thought out points he just made.

    1. He just was never cleared to read it.

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    2. My immediate thought too. It does seem we are in an era of FYTW government.

      1. We’ve lived in an era of FYTW government at least since the Alien and Sedition Acts.

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    3. I sometimes wonder (in an improperly non-cynical mode, I suppose) whether it’s not so much FYTW as F *it* TW. By this I mean that the government weenies are so overwhelmed by their Frankenstein monster they can’t even *begin* to *imagine* how to correct it and so just shrug their shoulders, bury their heads, and kick the can.

      Of course, F *them* in either event.

      1. Maybe. But that would suggest that government weenies (whether pols or bureaucrats) actually want to correct things and there doesn’t seem to be a lot of evidence of that.

        1. Good observation.

          For instance, until “the unfair, convoluted tax code” they all keep whining about is “fixed”, I refuse to believe they are serious.

  2. Because the Framers feared that federal judges might act as super-legislatures and go about declaring unconstitutional whatever legislation or presidential actions displeased them

    Sounds good. What’s the problem?

  3. I dont know if the court itself is unconstitutional, but its behavior certainly is, wildly so.

    1. Napolitano’s point is that because the FISA court is designed to be a rubber stamp (advisory) that does not rule in actual cases with a plaintiff and defendant, it is unconstitutional. And in creating this rubber stamp, the government has undermined the rule of law as explicitly stated in the Constitution concerning juridiction.

      1. But…but…shills, flunkies, and yes men are the fundamental cogs in the well oiled machine that is modern jurisprudence, and government as a whole. Are you actually suggesting the American people give up all this?

  4. Sometimes man you jsut have to roll with it.


  5. To answer the question in a word: “No”.

    More precisely phrased: “No F#$%ING WAY!”.

  6. I was just talking to someone who was comparing Obama to Bush and I pointed out that Obama to Nixon was a better comparison. The reaction to Nixon deciding he – as CinC – could single-handedly order the Cambodian incursion during the Vietnam War was public outrage and Congress passing a law saying he could not order military action in a sovereign nation with which we were not at war. Yet here’s Obama making the argument that Congress has no authority with regards to Syria, having already gotten away with the same thing in Libya and Yemen and wherever else he has ordered drone strikes.

    Along those same lines, Obama is aserting his right as the one in charge of foreign relations to say that the Senate has no say in the Pacific trade agreement negotiations – ignoring the ‘advice’ part of the Senates ‘advice and consent’ function – just as he argued that the Senate only had a ‘consent’ function in making those ‘recess’ appointments when the Senate was not actually in recess.

    How does he get away with it? Because you have people who seriously believe that by re-electing Obama the American people have voted for his policies – such as Obamacare, higher taxes on the rich, increased spending, more gun control laws – and that Congress has no right to thwart the will of the people by opposing Obama. They seriously believe that we have elected Obama king and therefore when the President does it, it’s not illegal. Somewhere Nixon is weeping that he came along 40 years too soon.

    1. The comparison to Nixon is apt, thus the increasingly-popular label of “Chocolate Nixon” a phrase sure to drive the diehard believers out of what little of their mind they’ve chosen not to rent.

    2. You are mostly right, but I think you are ignoring the role of the press. The press helps steer public opinion, so the narrative they tell is one a lot of the public believes. And the other side is that Congress tends to mistake the press for public opinion, so that even if the public is outraged, if the press isn’t, then Congressmen don’t feel the urge to stand up and maybe be alone. But if it looks like everyone is going to jump on the band wagon, then they want to be on it,too.

  7. No. Next question.

  8. “Is the FISA Court Constitutional?”
    Does it issue warrants? If not, see A4.

  9. You can have a secret process, or you can have due process, but you can’t have secret due process.

    So, nothing these “courts” do should be regarded as involving due process, or the satisfaction of any Constitutional requirement for judicial oversight or review.

    1. That’s the essence of it right there – the idea of a secret court just flies in the face of the fundamental underpinnings of the whole case for the American Revolution in the first place.

      Secret courts, if I remember, was exactly one of the main complaints against the King.

    2. So the president mulling his secret kill list over with his poker buddies isn’t due process?

      Surely that cant be, the president would never do anything wrong…

      1. “When the president does it, that means that it is not illegal.”
        Unless, of course, the president is a Republican.

  10. Is there an adversarial situation when criminal investigators ask the court for a search warrant?

  11. Aren’t all warrants issued by just the government going before a judge? It seems the generality is the problem not the onesidedness of it.

    1. It does seem like the subject of a search warrant should, in theory, be able to make a case in court that the search is unreasonable.

      Pragmatism, however, demands that the subject of the search warrant not know about it in advance.

      The only way, I believe, that’s yet been found to deal with that pragmatic problem is to not admit evidence obtained by an illegal warrant.

      When the court itself is secret, however, and the charges are secret, and the evidence is secret, and the accuser is secret, and the accused is not allowed to testify, that particular protection is reduced to roughly “jack shit.”

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  13. I’m convinced! The FISA court is indeed unconstitutional.

    Now what?

    1. Welcome to a secret government list, oops, I mean watch out for some due process, er, these aren’t the droids you’re looking for.

  14. The FISA court is constitutional. However, if the framers had ever envisioned it, it would not be. Unfortunately the constitution is neither perfect or all emcompassing.

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  16. This has been a problem since the inception of FISA. However, the only way it will be resolved is when a criminal defendant is prosecuted upon FISA evidence gathered with a general warrant. Unfortunately, the government will likely lie and deny that such evidence was used at any stage to build the case. Or, will try and obfuscate and claim that “national security” prevents them from revealing the general warrants. The problem lies in the fact that few (if any) judges (or for that matter, lawyers) have the cojones to go through that face off. So, the end result becomes a “neutering” of an entire branch of government.

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