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Benjamin Wittes

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To get a FISA warrant to spy on a suspected spy, the feds go before a super-secret court located in a sealed room in the Department of Justice. With no defense lawyers present, they need only show probable cause that the target is an ‘agent of a foreign power’ engaged in intelligence gathering against the United States.

Benjamin Wittes

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Benjamin Wittes

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The idea that the president doesn’t interfere in law-enforcement investigative matters is one of our deep normative expectations of the modern presidency. But it is not a matter of law. Legally, if the president of the United States wants to direct the specific conduct of investigations, that is his constitutional prerogative.

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The reason the FISA standard is constitutional is that the government is supposed to use FISA surveillance not for criminal investigations but for counterintelligence probes pursued under the president’s authority to conduct foreign policy.

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April 23, 2024

The reason the FISA standard is constitutional is that the government is supposed to use FISA surveillance not for criminal investigations but for counterintelligence probes pursued under the president’s authority to conduct foreign policy.

Previous

April 23, 2024

The idea that the president doesn’t interfere in law-enforcement investigative matters is one of our deep normative expectations of the modern presidency. But it is not a matter of law. Legally, if the president of the United States wants to direct the specific conduct of investigations, that is his constitutional prerogative.

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