End the FISA

The contention here is not that the president should get carte blanche. Intrusive government actions taken under the guise of safeguarding the nation against foreign perils have a high chance of suppressing our liberties. The Trump–Russia fiasco launched by the Obama-era intelligence services reaffirms that executive intelligence operations must be subjected to searching scrutiny. Politicized excesses dating back to the John Adams–era Alien and Sedition Acts demonstrate that our own government, under the pretext of protecting us, can do more damage to republican democracy than anything Russia or a similarly treacherous foe can do.

No, my argument for abolishing the FISC is twofold. First, intelligence is not fit for judicial management. As the Supreme Court expressly recognized (in its 1948 Chicago & Southern Air Lines ruling), intelligence is an innately political function. The most significant decisions a body politic makes are the ones about its security. If a society is to be free and self-determining, those decisions must be made not by politically unaccountable judges but by the elected officials—the president and Congress—answerable to the Americans whose lives are at stake.

Second, aggressive congressional oversight would be significantly more effective than the FISC system. The judiciary is not institutionally competent to oversee intelligence operations. That is not a knock on the courts. It is a recognition that they have a different and vitally important role to play in addressing governmental overreach.

Congress has investigative power and other superior tools for reining in executive excess. And Congress is constitutionally responsible, along with the president, for national security. The courts have no such responsibilities, much less the ability to carry them out.