constitutional crisis, in my mind - FISA needs to get out from under the executive and into the judicial branch, perhaps along w

"The procedures under the surveillance act are streamlined, but nevertheless involve a number of bureaucratic steps." True enough, the FISA statute contains a number of requirements that certain executive branch officials approve FISA applications before they go forward. Some might call these bureaucratic steps; I like to think of them as institutional safeguards. Regardless, the point is that these bureaucratic actors all work for the President, save the Art. III judges who sit on the FISA court. The president has plenary power to fire any leader in this bureaucratic chain (for the most part), save the judge with the final decision, should he or she move too slowly on a FISA application. This is not an argument against FISA; this is an argument about the inefficiencies and inadequacies of the Justice Department. And if you think about it, this is a really silly argument. The authors are saying that the Justice Department is too larded down to work right, so let's fix the statute. That doesn't add up. DOJ is the issue here, not the statute. I guarantee you that a bloated Justice Department would find a way to muck up even the most well-drafted of statutes; this is a constant of bureaucracies. If the problem is truly bureaucracy, let's look at how to make that process work better, not how to short-circuit it with extra-legal measures.

3. "Furthermore, the FISA court is not a rubber stamp..." While I wouldn’t insult the FISA court by calling it a rubber stamp, I would say that it goes along with the Justice Department in an overwhelming number of cases. Until the FISA Court of Review decision a couple of years ago, it was thought that the FISA court had approved every single application that came before it. Rubber stamp? You be the judge. Personally, I believe there's a more nuanced dynamic at work; that all the Justice Department's "bureaucratic steps" were working to only send forward FISA applications that deserved to be approved. And so the DOJ batting average is high at the FISA Court for the same reason that prosecutors have a high batting average: they dismiss or dispose of the cases they don't want to take to court. Unfortunately, given the classified nature of these proceedings, we may never know the truth.