Well, kinda. Alito suggests that the Foreign Intelligence Surveillance Court provides adequate “judicial review,” and the constitutionality of this program is not insulated from constitutional review.
Second, our holding today by no means insulates §1881a from judicial review. As described above, Congress created a comprehensive scheme in which the Foreign Intelligence Surveillance Court evaluates the Government’s certifications, targeting procedures, and minimization procedures—including assessing whether the targeting and minimization procedures comport with the Fourth Amendment. §§1881a(a), (c)(1), (i)(2), (i)(3). Any dissatisfaction that respondents may have about the Foreign Intelligence Surveillance Court’s rulings—or the congressional delineation of that court’s role—is irrelevant to our standing analysis.
Right. So how is Amnesty International supposed to file a complaint in FISC? That’s right, they can’t. It’s a secret. And, no appeal lies to the Supreme Court. I agree with the Court’s standing analysis, but I find this offering unsatisfying. This opinion does put certain programs beyond the reach of Article III Courts.
I can’t help but think of the constitutionality of drone strikes–which are not even subject to FISC. Some have suggested created a drone court. But for now, this decision lies entirely with the executive branch. There is no judicial review. In the leaked memos, the government has stressed that Due Process can be satisfied without judicial review.
I wonder if Alito would take a different position with respect to drone strikes, where no Article III judges are taking a peek.