The Constitutionality of the Foreign Intelligence Surveillance Act of 1978

Within its more limited scope, the Belfield decision provides a helpful approach to FISA cases by articulating both a solid rationale for FISA\u27s in camera, ex parte provision and a workable balancing approach for determining whether open proceedings may be necessary. The Falvey decision, although broader in scope, does not provide a satisfactory rationale for FISA\u27s deviation from the traditional fourth amendment warrant requirement, nor does it articulate a workable approach to evaluating a FISA-warranted surveillance. The Falvey court, by predicating its upholding of FISA on an acceptance of the national security exception, may perpetuate a debate that the statute attempted to foreclose. For circuits that have not endorsed warrantless national security surveillance by the Executive, the Falvey decision may not offer a satisfactory rationale for accepting FISA\u27s less-than-probable cause standard. Furthermore, Falvey\u27s substitution of a per se rule for Truong\u27s primarily for the purpose test may be open to constitutional attack in the future. The Falvey and Belfield decisions, along with the Truong footnote, very likely foreshadow the deferential treatment that a much-needed, complex, and extensively debated statute will receive in the courts. While the Belfield decision effectively defends FISA\u27s controversial in camera, ex parte provision, the Falvey decision will disappoint both FISA\u27s supporters and critics, who will have to wait for a more satisfactory statement of their views and a more convincing defense of FISA\u27s controversial deviation from traditional fourth amendment warrant requirements