In 1978, given my role in opposition to the proposed FISA on the staff of the Senate Intelligence Committee, the American Bar Association (ABA) invited me to debate the issue with then professor Antonin Scalia of the University of Chicago Law School. I said that requiring judicial authorization for an executive action in pursuit of national security is an unconstitutional obstruction of the President’s power as commander in chief. Scalia agreed but pointed out that the President, i.e. the bureaucracies supported involving judges because they realized that the obstruction is theoretical rather than practical: the secret court having no basis for judging what is or is not required by national security would just give the agencies the confidence to do their jobs. I countered that the confidence would be problematic: although strictly speaking the court could confer only a procedural imprimatur, in practice that would shield the bureaucracies – and the President – from having to defend the substantive value of any act of surveillance.
Prior to FISA, the intelligence bureaucracies’ actions, although unquestionable a priori because undertaken secretly, could always be questioned ex post facto. Once FISA became law, the claim that any given act was good because it was lawful would make substantive questioning more difficult.
In the ABA debate, I also argued that a court hearing only one side of a case, ex parte, in secret would be a foreign body in the American legal system. Ex parte secrecy had been the defining feature of England’s infamous “Star Chamber.” Scalia agreed but pointed out that the FISA court’s jurisdiction would be very limited. I countered that Congress could expand that foreign body. Scalia said that we were debating only the law then proposed, as indeed we were.
But FISA’s promise to bureaucrats – secret pre-authorization and virtual immunity from criticism – proved impossible to resist.