Why is there a special legal regime for “foreign intelligence” surveillance?
The path to FISA has two branches, political and judicial. The government had long maintained that it had extensive discretion to conduct wiretapping or physical searches in order to protect national security. In Katz v. United States, 389 U.S. 347 (1967), the Supreme Court acknowledged that the President had claimed special authority for warrantless surveillance in national security investigations, and explicitly declined to extend its holding to cases “involving the national security.” Id. at 358 n. 23. Similarly, Congress in Title III stated that “nothing in Title III shall . . . be deemed to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government.” On the political front, such executive branch activities, charitably described as “some degree of domestic
