Critical Questions: Domestic Surveillance, FISA, and Terrorism

The Bush administration entered office with the intent of restoring, in its view, executive branch authorities and presidential prerogatives. The attacks of September 11 and the wars in Afghanistan and Iraq reinforced the notion that the president’s constitutional authority as commander in chief provided sweeping powers that were sufficient to authorize a range of actions for defense. Among these actions was the authorization of a program in which the National Security Agency (NSA), the U.S. agency responsible for collecting communications intelligence, would begin surveillance of the electronic communications of U.S. citizens and residents without first obtaining an approval (in the form of a warrant) from the special court established precisely for this purpose.

That court, the Foreign Intelligence Surveillance Court (FISC), was created as part of reforms made in the 1970s in response to perceived excesses of U.S. intelligence agencies. Before passage of the Foreign Intelligence Surveillance Act (FISA), the president had broad scope to conduct intelligence operations without congressional or court oversight. Vietnam, the Watergate scandal, and revelations of the frequent misuse of domestic surveillance dating back to the 1950s made this untrammeled presidential authority seem unwise. In 1978, Congress established new congressional committees for intelligence oversight and, under FISA, created rules for domestic surveillance and the FISC to authorize such surveillance under a warrant and oversee it.