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Context for Judicial Oversight of the Targeted Killing Program: A Brief History of the Creation of the Foreign Intelligence Surveillance Court

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Thursday, February 14, 2013 at 7:41 AM

Recent events have accelerated a discussion focused around creating a special court to oversee the execution of targeted killings against suspected terrorists. Some Lawfare contributors have weighed in on the idea (see here for Steve’s argument against such a court, here for Jack’s views in comparison with those of the ACLU, and here for Bobby’s first reaction to the proposal). Democratic Senators Dianne Feinstein and Patrick Leahy (who chair the Senate Intelligence Committee and Senate Judiciary Committee, respectively) are the most high-profile proponents of such a system.

Because the intelligence surrounding decisions to categorize suspected terrorists as potential targets for a drone strike is classified, it’s natural that the Foreign Intelligence Surveillance Court (FISC) has been mentioned as a possible model for reviewing targeted killing listing. The FISC, which was created in 1978, meets in secret and is tasked with reviewing and approving surveillance warrants for suspected foreign agents living within the United States. With the FISC model in mind, some have proposed creating another secret court to review at least some decisions to place particular individuals suspected of terrorist activities on lists of potential targets, thereby authorizing the government to conduct an operation against them in the future. The proposals typically do not contemplate judicial involvement in reviewing decisions to carry out an operation against someone who makes the list.

Since the proposed targeted killing court is being modeled on the FISC, we thought it would be useful to provide a brief history of the enactment of FISA itself, particularly focusing on the competing House and Senate proposals in their respective versions of the FISA that were ultimately somewhat merged together into the structure of today’s FISC. The history is quite extensive and involved protracted legislative and executive discussions over a long period of time and across two administrations of opposite parties. It turns out that creating a new court is no simple matter.

The National Security Archive’s excellent collection of declassified government documents lays out the details of the Ford Administration’s early discussions around enacting a law that would authorize electronic surveillance of foreign agents. The White House began seriously considering the merits of such legislation following the Church Committee’s 1976 revelations about intelligence collection on U.S. persons and the 1972 Keith Case. In Keith, the Supreme Court held that a warrant is required for domestic security surveillance, but it did not pass “judgment on the scope of the President’s surveillance power with respect to the activities of foreign powers, within or without this country.”

According to Ford Administration internal talking points following the release of the Church Committee’s reports, the White House believed that surveillance legislation would ensure the validity of evidence obtained through electronic surveillance and protect telecommunications companies from litigation. However, the administration also had concerns about resorting “to the judiciary for exercise of an inherent Executive power” and potential delays caused by the additional lawyer of approval.

Despite these reservations, President Ford decided in March 1976 to support surveillance-authorizing legislation, and Attorney General Edward Levi testified later that month in favor of Senator Ted Kennedy’s bill, which would have created a system for granting special warrants specifically for electronic surveillance. According to the 1976 CQ Almanac, the bill initially enjoyed bipartisan support, but opposition grew over the summer amid concerns that the measure would have allowed surveillance of Americans who were not engaged in illegal activities. Although the Judiciary Committee added additional safeguards designed to protect civil liberties, opposition persisted and the bill never made it out of committee.

The next iteration of the FISA bill, which consisted of the Ford Administration proposal to require a warrant for electronic surveillance for foreign intelligence purposes, was introduced in 1977 during the first session of the 95th Congress. While it was approved by the Senate Judiciary Committee shortly thereafter, neither the Senate Intelligence Committee nor the House committees with jurisdiction moved forward with the legislation in that Congress.

The proposal was revisited in the 96th Congress, and final passage of the FISA took place on October 12, 1978. The compromise bill, reached through a formal conference after the House and Senate approved different versions, passed the House of Representatives in a 226-176 vote, while in the Senate it was passed via voice vote (that is, there was no formal roll call). President Jimmy Carter signed the law, and in May 1979, he issued an executive order authorizing the Attorney General to begin approving surveillance applications.

There were several major issues that the conference committee had to resolve as a consequence of differences in the House and Senate versions of the bill, including the composition of the entity granting the warrants. The version of the bill that passed the Senate created a new, special court composed of seven judges selected by the Chief Justice of the United States. Under that version of the bill, each judge was required to be from a different circuit, and judges were limited to seven years of service on the FISC. This version of the FISA passed the Senate in a 95-1 vote.

A CQ Almanac review of the legislative history explains that the House version, proposed by conference attendee Representative Allan Ertel (Democrat of Pennsylvania), granted the authority to approve the warrants to federal district courts around the country. His argument was that by spreading authority across many courts rather than concentrating it in just one, national security interests would be better protected. Following the House floor debate, the House voted 224-103 to drop the Senate’s special court provision in favor of leaving the jurisdiction with district courts based on traditional territorial jurisdiction.

The compromise that was ultimately reached in conference was a blend of the two proposals: a single court with jurisdiction over granting the warrants would be established, but the court would be made up of seven judges from the district courts, each coming from a different circuit and designated by the Chief Justice of the United States. In addition to their FISA-related duties, the judges would retain their regular responsibilities as district judges.

To gain a sense of the size of the FISC’s work, here are some statistics: the court issued a total of 207 orders in 1979, and its workload has steadily increased for most of the court’s history. This pattern changed slightly when President Obama entered office in 2009. FISA requests decreased in 2009 to 1,329 from 2,082 in 2008, but they went back up to 1579 in 2010 and to 1745 in 2011. Through 2011, more than 32,000 warrants have been issued by the FISC, with only 11 requests denied.

The 1978 compromise also created a system for the government to appeal a FISC warrant denial. When a warrant is denied by the court and the government appeals the decision, the appeal is heard by a three-judge panel selected by the Chief Justice. These three judges could be from either the district courts or the courts of appeals. As it happens, the FISA appeals court never met until 2002, according to the Federal Judicial Center. The appellate court’s first opinion, issued in 2002, held the FISC’s findings to be too restrictive on the government and remanded the decision for further review. (The government’s initial brief before this court is here.)

The 2001 PATRIOT Act changed the composition of the FISC. The law increased the size of the court from seven to eleven judges and required three rather than two judges to be in the vicinity of D.C. at all times.

One significant question raised by the proposal to model a targeted killing court on the FISC is how such judges are to be selected. FISA Court judges are designated by the Chief Justice of the United States. The FISC is one of several “special” courts to which the Chief Justice has the authority to assign judges. Should the Feinstein/Leahy proposal move forward, the question of who will make up such a court and how the judges will be selected will be a question with which Congress will need to grapple.


[1] “Domestic Wiretapping,” 1976 CQ Almanac, pp. 418-421.
[2] “Wiretapping,” 1977 CQ Almanac, p. 568.
[3] “Controls Tightened on Use of Wiretaps,” 1978 CQ Almanac, pp. 186-193.
 
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