Feingold: New FISA Court Ruling Based on Incomplete Record
When it upheld the constitutionality of warrantless intelligence surveillance under certain very particular circumstances in a ruling (pdf) that was disclosed last week, the Foreign Intelligence Surveillance Court of Review was acting on an incomplete factual record that may have skewed its decision, according to Senator Russ Feingold (D-WI).
“It is my view that the Court’s analysis would have been fundamentally altered if the company that brought the case had been aware of, and thus able to raise, problems related to the government’s implementation of the law, about which I have repeatedly raised concerns in classified settings,” Sen. Feingold said.
The new decision “placed the burden of proof on the company to identify problems related to the implementation of the law, information to which the company did not have access.” The court therefore ruled “without the benefit of an effective adversarial process,” he said in a January 16 statement.
In any case, Sen. Feingold stressed, the new decision “in no way validates or bolsters the president’s illegal warrantless wiretapping program. The decision, which only addressed surveillance authorized by the Protect American Act (PAA) enacted in August 2007, did not support the President’s claim of constitutional authority to violate the law. Nor did the decision uphold the constitutionality of the PAA in all cases, but rather it upheld only the Act’s application in this particular case.”
While narrowly limited in scope to the specific, never-to-be-repeated circumstances of this case, the new ruling explicitly states for the first time that there is a foreign intelligence exception to the Fourth Amendment: “[W]e hold that a foreign intelligence exception to the Fourth Amendment’s warrant requirement exists when surveillance is conducted to obtain foreign intelligence for national security purposes and is directed against foreign powers or agents of foreign powers reasonably believed to be located outside the United States.” [at page 17] (More from Emptywheel, Glenn Greenwald, Volokh.)
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FAS and FLI partnered to build a series of convenings and reports across the intersections of artificial intelligence (AI) with biosecurity, cybersecurity, nuclear command and control, military integration, and frontier AI governance. This project brought together leaders across these areas and created a space that was rigorous, transpartisan, and solutions-oriented to approach how we should think about how AI is rapidly changing global risks.
Investment should instead be directed at sectors where American technology and innovation exist but the infrastructure to commercialize them domestically does not—and where the national security case is clear.
AI is already consequential, but its future trajectory remains contested. Policymakers should make their assumptions explicit, focus on what can be shaped rather than what can be perfectly predicted, and build institutions that can learn and respond as evidence changes.