> As I understand it, the warrant process used in domestic criminal law is also not adversarial
Not entirely true. The issuance of the warrant is not adversarial. However, due to the exclusionary rule, a warrant can be overturned after the fact. Not only does this exclude evidence obtained from the warranted search, it also provides an incentive for police and judges to maintain high standards for warrants. Thus, there is a strong adversarial component in the process, and it's an essential one.
> Of course, this isn't actually true; every sitting FISC judge was approved by the Senate, since FISC judges are appointed from the federal bench.
But Congress has not had a chance to downvote their appointment to the FISC. How can we assume that every judge whom Congress deems fit for the federal bench would also be approved to join the FISC, were the question put to Congress?
If Congress is uncomfortable with the current makeup of the FISC, the same vote that would confirm or deny an individual judge could reconstitute the entire court. FISC is some sense an instrument of Congress. To the extent that it's an Article III court (I still contend it might not be), FISC even avoids the issue of judge tenure because its judges are part-timers who already sit on the federal bench. Unlike the federal court system, Congress has near total authority over FISC.
> If Congress is uncomfortable with the current makeup of the FISC, the same vote that would confirm or deny an individual judge could reconstitute the entire court.
Well, not the same vote, since confirmation is by the Senate, and rewriting FISA takes both houses.
It's a higher bar to reconstitute the court than to block a judicial nomination, though. The former would require both houses to pass the bill, and either the President's signature or a veto-proof majority. For the latter, all you need is 40 senators to filibuster. A much, much easier thing to do.
But your larger point is well-taken: FISC exists because Congress at one time willed it so. Still, it's not unreasonable to criticize Congress for willingly divesting itself of power to the advantage of other branches of government.
In any case, the main issue isn't Congressional authority. It's the one-sided nature and absence of a workable appeals process. Speaking of which:
> To the extent that it's an Article III court (I still contend it might not be)
I would go so far as to say that it's barely a court at all. More like a panel of judges. Is it a court if it hears no controversies and effectively operates outside the system of review by higher courts?
This deserves a very hard look. I'm not casting doubt on the integrity of the FISC judges. But it would only be natural for an entity like FISC, which serves the government alone and has effectively no oversight from higher courts, to develop a bias over time. No matter how much faith you have in the integrity of judges, it seems unwise to arrange things such that only one party has their ear.
One might object that regular judges issue warrants on a daily basis without hearing from any opposing party. However, those warrants are subject to challenges after the fact, and judges are aware of this. The ever-present threat of a warrant being ruled improper serves as a silent counterbalance when the warrant is requested.
> I would go so far as to say that it's barely a court at all. More like a panel of judges. Is it a court if it hears no controversies and effectively operates outside the system of review by higher courts?
It doesn't effectively operate outside of the system of review by higher courts, its just that, since the proceedings are non-adversarial, the only review likely is of decisions that are adverse to the government, which are made unlikely, since there is no constraint on the government's ability to -- even assuming no deliberate misrepresentation -- present information selectively in the initial application.
> But it would only be natural for an entity like FISC, which serves the government alone and has effectively no oversight from higher courts
FISC has a higher court (the Foreign Intelligence Surveillance Court of Review) which exists solely to provide oversight for it; FISCR is itself overseen by the Supreme Court.
What the FISA process is missing isn't oversight by higher courts, which it incorporates already, but an advocatus diaboli.
The FISA process concerns surveillance of foreign nationals who enjoy extremely limited constitutional protections.
People are fond of pointing out that the government rarely loses at FISA hearings. But as it turns out, of course, the government also rarely loses when it files for domestic wiretap authority. Relative to other transactions investigators and prosecutors have with the courts, the process of obtaining authority to wiretap is extraordinarily difficult; prosecutors don't waste time doing wiretap paperwork if they're not sure the request will be granted.
Two different processes, neither of them adversarial, both of them secret, both of which produce an authority to surveil people. My question: why would the process that surveils foreigners without Fourth Amendment rights require a devil's advocate, when the domestic wiretap process has no such mechanism?
I ask in part because I think synthesizing an adversary is unlikely to create a meaningful restraint; a synthetic adversary doesn't have the same incentives as a real one.
> My question: why would the process that surveils foreigners
Right here is the fundamental problem. The lack of effective constraints in the FISA process (and we've already discussed, in this thread, why the domestic process targeting criminal action, despite superficial similarity, has stronger incentives for government restraint than the FISA process) is exactly why we cannot trust that it only surveils foreigners (it is intended to do that, but absent effective constraint there can be no confidence that it is used as intended.)
> I ask in part because I think synthesizing an adversary is unlikely to create a meaningful restraint; a synthetic adversary doesn't have the same incentives as a real one.
Sure, from the perspective of constraint, a synthetic adversary is worse than a real one, and selecting a synthetic adversary in a manner which makes it an effective constraint is tricky, but getting a real adversary into the foreign intelligence surveillance warrant process is, well, difficult to do without serious negative consequences.
I submitted a comment a few minutes ago to this effect, but it's as if it never happened, so here goes again. If it should reappear, please forgive the double-posting.
> The FISA process concerns surveillance of foreign nationals who enjoy extremely limited constitutional protections.
It's unclear, from the public's perspective, that FISA warrants are only being directed against foreign entities.
> People are fond of pointing out that the government rarely loses at FISA hearings. But as it turns out, of course, the government also rarely loses when it files for domestic wiretap authority. Relative to other transactions investigators and prosecutors have with the courts, the process of obtaining authority to wiretap is extraordinarily difficult; prosecutors don't waste time doing wiretap paperwork if they're not sure the request will be granted.
Two different processes, neither of them adversarial, both of them secret, both of which produce an authority to surveil people. My question: why would the process that surveils foreigners without Fourth Amendment rights require a devil's advocate, when the domestic wiretap process has no such mechanism?
I hate to keeping beating this horse. But the argument that domestic warrants are equally non-adversarial keeps coming up. So I guess the horse isn't dead. Domestic warrants are part of an adversarial process, if only after the fact. They are typically used to gather evidence for a criminal prosecution. When that happens, the defendant has a right to challenge the warrant. This serves as a counterbalance. Judges, prosecutors, and police know that a bad warrant will likely be thrown out if the criminal case is brought to trial. Thus, they have a very real incentive to write good, defensible warrants. This means it's to their advantage to keep their warrants narrow in scope. And thus the goal of preserving privacy is served.
> I ask in part because I think synthesizing an adversary is unlikely to create a meaningful restraint; a synthetic adversary doesn't have the same incentives as a real one.
Do you mean that there aren't incentives for the opponent of the warrant, or for the government?
If the former, I can only point out that organizations like the ACLU can be quite zealous. I would much prefer advocacy by the ACLU than no advocacy at all.
If the latter, the restraint would take two forms. First, judges and investigators would be aware that overbroad or otherwise improper warrants can be undone. This would incentivize writing good warrants. Second, the warranted surveillance could be halted upon a successful challenge, assuming said surveillance is ongoing. Both of these are meaningful checks.
Not entirely true. The issuance of the warrant is not adversarial. However, due to the exclusionary rule, a warrant can be overturned after the fact. Not only does this exclude evidence obtained from the warranted search, it also provides an incentive for police and judges to maintain high standards for warrants. Thus, there is a strong adversarial component in the process, and it's an essential one.
> Of course, this isn't actually true; every sitting FISC judge was approved by the Senate, since FISC judges are appointed from the federal bench.
But Congress has not had a chance to downvote their appointment to the FISC. How can we assume that every judge whom Congress deems fit for the federal bench would also be approved to join the FISC, were the question put to Congress?