The FISA Model for Summary Execution?

By Anthony Gregory
Feb. 11, 2013

Diane Feinstein and some liberals have suggested that, if the president’s targeted killing policy is too unilateral, the remedy might be found in something modeled after the FISA court.

Make no mistake: Such a court would be nothing more than a rubber-stamp. At best.

In 1978, after Church Committee hearings exposed massive abuse of FBI search procedures to spy on and harass Americans in the United States, many of them totally peaceful, Congress instituted a number of reforms to rein in these abuses. The most well known was probably the Foreign Intelligence and Surveillance Act. It created a FISA court to issue special warrants for spying on international communications with a suspected foreign enemy.

The law did not create a real court in the judicial branch, but rather an executive branch panel with secret proceedings housed right in the Justice Department.

Between 1978 and September 11, 2001, there were about 13,000 FISA applications. Guess how many were rejected? Zero. That’s right, zero. This included a warrant issued to spy on a man in Phoenix accused of organizing a crime ring to steal and sell baby food.

After 9/11, FISA was apparently too strict for the Bush administration, so it asked for looser standards under the USA PATRIOT Act. The Justice Department then loosened the restrictions even further. Then, in December 2005, the public learned that Bush had circumvented even this pitiful process altogether and had ordered the NSA, a military agency, to spy on Americans without any warrants whatsoever. In 2007 and 2008, Congress voted to legalize Bush’s illegal behavior and immunize anyone who was complicit from prosecution, and to create even looser standards for the executive branch to spy on Americans without warrants. Obama has vastly expanded warrantless electronic surveillance.

This is the model liberals want to constrain the president in summary executions: A model that failed to decline a single warrant out of 13,000 from its inception to 9/11, a model the government easily modified to its advantage after a crisis, a model the Bush administration was rewarded for ignoring altogether, a model that was amended by an enthusiastic bipartisan effort to allow an unprecedented power that the current administration uses to issue tens of thousands of warrantless wiretapping orders every year.

No thanks. It’s bad enough that Obama is killing people without judicial oversight. It doesn’t take a cynic to fear that after a few years of a FISA-style summary execution court, the president will be ordering Americans to be gunned down in the streets of Manhattan and Tulsa. But the fig leaf of the “rule of law” will be there, and so the outrage will have subsided.