Daphna Renan, The FISC’s Stealth Administrative Law, in Global Intelligence Oversight: Governing Security in the Twenty-First Century (Zachary K. Goldman & Samuel J. Rascoff eds., Oxford Univ. Press 2016).
Abstract: This book chapter explores the relationship between Fourth Amendment law and administrative procedure in the governance of intelligence programs. It brings to the surface and analyzes an emergent dynamic in the recent case law from the Foreign Intelligence Surveillance Court (“FISC”): the role of administrative procedure inside Fourth Amendment law. Administrative rules today put meat on the bones of Fourth Amendment reasonableness. This development is in many respects salutary. Administrative rules enable a more systemic, dynamic, and grounded approach to intelligence oversight than traditional Fourth Amendment review would permit. But the type of administrative law that the FISC has created in the intelligence space is anemic at best. Elsewhere in the administrative state, we have long worried about agencies pushing on the legal bounds of their authorities or adopting policies out of step with their political overseers and the public. Administrative law has developed a set of structural and procedural safeguards in response to those threats. The administrative law of intelligence is different; it is devoid of these safeguards. We are relying on administrative rules to do crucial work to give content to Fourth Amendment reasonableness, but without the conditions that have come to legitimate administrative rulemaking elsewhere in the regulatory state. This chapter illuminates the FISC’s emergent “administrative Fourth Amendment law” and begins to explore avenues for reform.