THE NUB OF AN INSIGHT:

Enacted in the wake of Watergate and domestic spying scandals that led to Congress's Pike and Church Committee inquiries, FISA empowered federal judges to oversee the executive's foreign intelligence collection. Originally, this power was limited to the FBI's surveillance of clandestine foreign agents in the United States; later, it was dramatically expanded to cover intelligence collection targeting foreigners outside the U.S. Plainly, lawmakers calculated that the creation of a separate court to handle all applications for foreign-intelligence surveillance would grow judicial expertise, addressing the institutional incompetence problem to which Jackson had alluded. FISA is heedless, though, of the more serious constitutional problem: the transfer of responsibility for innately political national security decisions to nonpolitical unelected officials -- i.e., away from democratic accountability.

It is the culture of law enforcement to expect independence from politics. Such independence is imperative for the legitimacy of the criminal justice system, on which depend the rule of law and thus domestic peace and prosperity. The framers understood that nothing lends itself to tyranny more than police powers unmoored from political accountability. The FBI and the Justice Department (of which the bureau is a component) are part of the executive branch, answerable to the president, who is accountable to the public. Prudently, however, the executive branch's political leadership does not involve itself in day-to-day policing, content to set programmatic enforcement priorities (e.g., deciding whether to allocate more resources to violent crime or healthcare fraud). There is no political interference in decisions about what cases to bring and which defendants to charge. Those are left to police professionals, who apply Congress's penal statutes in proceedings overseen by courts.

National security, on the other hand, is an innately political responsibility. Indeed, the foreign counterintelligence mission is conducted solely to support the president's national defense duties, not to develop prosecutable court cases. If the FBI and the courts are doing national security, they are necessarily practicing politics. Arms of government that make political determinations cannot properly be independent of political oversight and accountability.

I've always believed the FBI could handle these related but different responsibilities. History proved me wrong. The bureau arrogantly insists on independence from political oversight not just in criminal cases but even when it is carrying out national security functions. It wants a free hand to act and even make policy judgments in the political realm, but it demands insulation from political accountability. The courts, analogously, have shed their healthy reluctance to become embroiled in national security policy disputes, as well as their formerly laudable line-drawing between political questions and controversies fit for judicial resolution.

FISA was a well-meaning effort to give a modicum of due process to Americans suspected of acting as foreign agents. In point of fact, it does not provide meaningful due process because it cannot replicate the adversarial search for truth that is the hallmark of judicial proceedings. The FBI and Justice Department appear ex parte before the court; the surveillance subject cannot be effectively represented, and the proceedings are classified, so the expectation is that no one will ever check the executive's representations. This is unlike criminal cases, which lead to prosecution, discovery, and significant legal consequences if government agents duped the judge into granting warrants.

More important, the FISA framework intended to provide more oversight of executive surveillance has had the opposite effect. Because the judges are not constitutionally responsible for national security, they are loath to second-guess the officials who are. The system perversely incentivizes those officials to seek warrants on questionable premises. They know that the judge will probably approve the warrants. Once that's done, the agents can brandish these judicial imprimaturs as proof that their actions are unimpeachable -- and thus to claim there is no legitimate reason for Congress, much less the public, to pierce the veil of secrecy.

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