![handle is hein.journals/nseclj7 and id is 1 raw text is: 2020]
FISA, THE WALL, AND CROSSFIRE HURRICANE:
A CONTEXTUALIZED LEGAL HISTORY
Bernard Horowitz*
The December 9, 2019, Crossfire Hurricane DOJOIGReportmarks
the most publicly visible controversy in the forty-year history of the FISA
statute. It also represents a potential trap for well-meaning policymakers:
sometimes the road to hellis paved with goodintentions.In contemplating
FISA reform, past non-partisan FISA policy disputes within the DOJ-
specifically those concerning internal FISA review mechanisms designed to
ensure compliance with the statute-demand attention. These past disputes
show that the FISA framework has proven unusually reactive to pressure or
sudden policy shifts; and when the FISA framework has been destabilized,
this has compromised U.S. national security. Policymakers newly concerned
about FISA misuse might reasonably envision a pendulum analogy
whereby FISA restrictiveness and permissiveness have fluctuated over time
depending on national priorities. Accordingly, twenty years after the 9/11
attacks, it might seem theoretically desirable to consider reinstating (or
partially reinstating) past FISA order review policies from when the
framework was most restrictive. However, the compliance regime during this
period between 1995 and 2001, featuring a Wall between federal
prosecutors and investigators conducting FISA surveillance, was flawed both
legally and practically,; it contributed to the 9/11 intelligence failures.
Reinitiating the Wall policies is not an option. Hence, policymakers aspiring
to amplify judicial review of FISA orders appear to face the task of
constructing wholly new safeguards. The national security surveillance
mechanism hangs in the balance. A potential (partial) remedy, favored by
* Antonin Scalia Law School at George Mason University, J.D. Candidate, 2021;
Grammy Nominee (as Producer) 2016; Co-editor with Harvey Rishikof and Stewart
Baker, Patriots Debate: Contemporary Issues in National Security Law, 2012; B.A.
Colorado College, 2010. Special thanks to Professors Mark Cummings, Jeffrey
Parker, and Ronald Rychlak for their written Commentaries, and to Professor Jamil
Jaffer, Professor Daniel Pi, Maj. Patrick Francescon, Brian Farrell, Harvey Rishikof
and many others for their helpful feedback. This Article is dedicated to Dennis
Showalter (1942-2019). The author may be contacted at bhorowi@gmu.edu.
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