Does that include protecting us from ourselves?
Here is what appears to be (without checking all the cites) an accurate summary of the genesis of the FISA Court. Note that all three branches were involved. The idea for such a court was suggested in a SCOTUS case, a President (Ford) submitted model legislation to Congress, and so the loop goes around, and around, and around ...
In Keith, the Court recognized that Congress did not intend to regulate every aspect of the executive branch's constitutional authority to conduct warrantless electronic surveillance for national security purposes under the Crime Control Act of 1968. [FN581] Instead, Justice Powell obliquely extended an invitation to Congress to create a framework for judicial review of internal security surveillance, parallel to its system for domestic law enforcement. [FN582] Although Congress did not react immediately to the Keith Court's prescription for a flexible, Fourth Amendment standard in internal security investigations, it provided an important impetus for the development of such legislation. [FN583]Through trial-and-error, the Executive and Congress sought to find a legislative solution to the problem of warrantless searches. [FN584] In 1976, President Ford submitted a bill to the Senate that would have codified existing executive branch practices, and Attorneys General William Saxbe and Edward Levi pledged their cooperation to work with Congress to create legislation to regulate electronic *76 surveillance. [FN585] Debate and discussion centered on the extent of the executive's inherent authority and whether the traditional criminal law standard should be included in the legislation. [FN586]
Senator Kennedy introduced a bill in 1977 that would have specifically repealed the disclaimer in the 1968 Crime Control Act and thus expressly eliminated congressional recognition of inherent executive power in this sphere. [FN587] During hearings on the Kennedy bill, the most controversy centered on the appropriate standards for targeting Americans who were not accused of criminal acts. [FN588] The Carter administration supported the legislation in principle, and after hearings in the House and Senate Intelligence Committees, both chambers approved the amended Kennedy proposal to drop the disclaimer repeal. [FN589] The proposal included a "quasi-criminal" targeting standard and more limited protections for aliens representing foreign governments in the United States. [FN590] In this climate of reform and inter-branch compromise, Justice Powell's invitation was finally accepted when Congress passed, and President Carter signed into law, the Foreign Intelligence Surveillance Act of 1978 (FISA). [FN591]
EXECUTIVE AUTHORITY FOR NATIONAL SECURITY SURVEILLANCE
50 Am. U. L. Rev. 1 (October 2000)
The "Keith" case (and Truong) are necessary background, as well. Here are parts of the Keith case, which was decided by a unanimous court. Rhenquist did not participate in the decision.
On the basis of the Attorney General's affidavit and the sealed exhibit, the Government asserted that the surveillance was lawful, though conducted without prior judicial approval, as a reasonable exercise of the President's power (exercised through the Attorney General) to protect the national security. The District Court held that the surveillance violated the Fourth Amendment, and ordered the Government to make full disclosure to Plamondon of his overheard conversations. 321 F. Supp. 1074 (ED Mich. 1971). The Government then filed in the Court of Appeals for the Sixth Circuit a petition for a writ of mandamus to set aside the District Court order, which was stayed pending final disposition of the case. After concluding that it had jurisdiction, 3 that court held that the surveillance was unlawful and that the District Court had properly required disclosure of the overheard conversations, 444 F.2d 651 (1971). We granted certiorari, 403 U.S. 930. ...But we do not think a case has been made for the requested departure from Fourth Amendment standards. The circumstances described do not justify complete exemption of domestic security surveillance from prior judicial scrutiny. Official surveillance, whether its purpose be criminal investigation or ongoing intelligence gathering, risks infringement of constitutionally protected privacy of speech. Security surveillances are especially sensitive because of the inherent vagueness of the domestic security concept, the necessarily broad and continuing nature of intelligence gathering, and the temptation to utilize such surveillances to oversee political dissent. We recognize, as we have before, the constitutional basis of the President's domestic security role, but we think it must be exercised in a manner compatible with the Fourth Amendment. In this case we hold that this requires an appropriate prior warrant procedure. ...
We emphasize, before concluding this opinion, the scope of our decision. As stated at the outset, this case involves only the domestic aspects of national security. We have not addressed, and express no opinion [407 U.S. 297, 322] as to, the issues which may be involved with respect to activities of foreign powers or their agents. 20 Nor does our decision rest on the language of 2511 (3) or any other section of Title III of the Omnibus Crime Control and Safe Streets Act of 1968. That Act does not attempt to define or delineate the powers of the President to meet domestic threats to the national security. ...
It may be that Congress, for example, would judge that the application and affidavit showing probable cause need not follow the exact requirements of 2518 but should allege other circumstances more appropriate to domestic security cases; that the request for prior court authorization could, in sensitive cases, be made to any member of a specially designated court (e. g., the District Court for the District of Columbia or the Court of Appeals for the District of Columbia Circuit); and that the time and reporting requirements need not be so strict as those in 2518.
The above paragraph does not, of course, attempt to guide the congressional judgment but rather to delineate the present scope of our own opinion. We do not attempt to detail the precise standards for domestic security warrants any more than our decision in Katz sought to set the refined requirements for the specified criminal surveillances which now constitute Title III. We do [407 U.S. 297, 324] hold, however, that prior judicial approval is required for the type of domestic security surveillance involved in this case and that such approval may be made in accordance with such reasonable standards as the Congress may prescribe.
MR. JUSTICE WHITE, concurring in the judgment.This case arises out of a two-count indictment charging conspiracy to injure and injury to Government property. Count I charged Robert Plamondon and two codefendants with conspiring with a fourth person to injure Government property with dynamite. Count II charged Plamondon alone with dynamiting and injuring Government property in Ann Arbor, Michigan. The defendants moved to compel the United States to disclose, among other things, any logs and records of electronic surveillance directed at them, at unindicted coconspirators, or at any premises of the defendants or coconspirators. They also moved for a hearing to determine whether any electronic surveillance disclosed had tainted the evidence on which the grand jury indictment was based and which the Government intended to use at trial. They asked for dismissal of the indictment if such taint were determined to exist.
Opposing the motion, the United States submitted an affidavit of the Attorney General of the United States disclosing that "[t]he defendant Plamondon has participated in conversations which were overheard by Government agents who were monitoring wiretaps which were being employed to gather intelligence information deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of the Government," the wiretaps having been expressly approved by the Attorney General. The records of the intercepted conversations and copies of the memorandum reflecting the Attorney General's approval were submitted under seal and solely for the Court's in camera inspection. ...
I would affirm the Court of Appeals but on the statutory ground urged by defendant-respondents (Brief 115) without reaching or intimating any views with respect to the constitutional issue decided by both the District Court and the Court of Appeals.
[In other words, White would find that Congress has the power to restrict the use of surveillance as occurred in the Keith case, via the (presumably Constitutional) statute cited in the case.]
UNITED STATES v. UNITED STATES DISTRICT COURT [Keith], 407 U.S. 297 (1972)
Summary of Truong at -> http://www.freerepublic.com/focus/f-news/1576467/posts?page=25#25