Is FISA worth preserving?

Gary Schmitt examines the latest House and Senate proposals to “fix” FISA. He finds the Senate bill superior, but that both versions are problematic. Please read the whole thing, and take particular note of Schmitt’s conclusion:

In a perfect (or just more reasonable) world, the House and Senate Intelligence committees would start over. Constantly trying to amend FISA presumes that FISA’s underlying structure (with its secret court of review) and its standard for issuing warrants (“probable cause”) are worth preserving. . . .Searches, electronic or otherwise, should be “reasonably” connected to the government’s legitimate function of protecting us from terrorist attacks. (Or, in the words of the Fourth Amendment, searches should not be “unreasonable.”) As Judge Richard Posner has noted, FISA

retains value as a framework for monitoring the communications of known terrorists, but it is hopeless as a framework for detecting terrorists. [The law] requires that surveillance be conducted pursuant to warrants based on probable cause to believe that the target of surveillance is a terrorist, when the desperate need is to find out who is a terrorist.

Increasingly, we are asking the judges who sit on the FISA bench to make decisions that judges have avoided making since the country’s first days–that is, to give opinions on matters that are not directly tied to a real case or provide for any adversarial process. No doubt these judges would take seriously the job of assessing the reasonableness of the various procedures the administration might be required to submit to them under the new laws, but is this the proper task for a judge, let alone judges who operate in secret and are themselves unaccountable? Far better to give the president back the constitutional authorities he has traditionally held and allow Congress to exercise the full powers of oversight that it unwisely delegated to the FISA court back in 1978,

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