Well, it sounds like a reasonable proposal on the surface, but when you look at the law and the structure that is set up, it does not work. The FISC was created in 1978 simply to issue orders for domestic surveillance on particular targets, but the Congress specifically left foreign surveillance activities to the executive branch and to the intelligence community. FISA minimization procedures--the procedure to suppress information on an innocent communication with a person in the United States--are all about protecting the identities of a U.S. person or American citizen. This comes up all of the time in domestic collections. But almost all of the collection under these foreign targeting acquisitions will be on non-U.S. persons who require no protection under FISA minimization procedures. It doesn't make sense to direct the FISC to get involved in assessing compliance with the foreign targeting realm. They have said in their opinion regarding sealed matters that they are not set up to do that, and they do not have the expertise to do that. As a practical matter, when the court assesses compliance with minimization procedures, it would be second-guessing trained analysts' decisions about which foreign terrorist to track and how to do it. They simply are not competent, they are not set up, they don't have the expertise to do that, and they have so stated in their published opinion. They can't make these types of operational decisions.
Editor's note · Context
Discussing the limitations of the Foreign Intelligence Surveillance Court (FISC) regarding foreign surveillance activities.
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