The Foreign Intelligence Surveillance Court ("FISC") has an Article III problem. Under section 702 of the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008 ("FAA"), which brought the Bush administration's Terrorist Surveillance Program under the rule of law, the FISC typically proceeds ex parte, hearing only from one party: the government. FISC proceedings under section 702 therefore lack the benefit of adverse parties clarifying the issues, which the Supreme Court has linked with sound adjudication and judicial self-governance. The FISC's section 702 role does not fit neatly into the established categories of cases, such as search warrants, where ex parte proceedings are permissible. The broad surveillance practices that the FISC reviews under section 702 lack the individualized facts of warrant requests or a direct link to criminal prosecutions. Under Article III of the United States Constitution, the FISC's section 702 role may be neither fish nor fowl. Closer examination reveals that although the FISC's role under section 702 is novel, it fits within Article III's space for the exercise of judgment by independent courts. This Article makes that case via the congruency test, which the Supreme Court invoked in Morrison v. Olson to uphold a statute requiring judicial appointment of an independent counsel to investigate allegations of executive misconduct in the wake of the Watergate scandal. Building on Morrison, it argues that the test for compliance of statutes with Article III must be pragmatic, affording Congress a measure of flexibility. Two Article III cases from October Term 2015 Bank Markazi v. Peterson and Spokeo, Inc. v. Robins demonstrate that Congress is entitled to deference when it seeks to promote operational values such as speed and accuracy in. dynamic domains such as national security, foreign relations, and emergent technology. The importance of timely responses to cyber threats fits the FAA within that rubric. The FISC's section 702 role also serves important structural values, by deterring executive branch surveillance abuses. Moreover, in the USA FREEDOM Act, passed after Edward Snowden's disclosures about National Security Agency surveillance, Congress established a panel of amici curiae to assist the FISC. Robust arguments by amici curiae, possibly augmented by a public advocate opposing government surveillance requests, can replicate most of the virtues of adversarial combat. Combining the virtues of adversarial argument with the operational and structural benefits of the FAA demonstrates the statute's congruence with the history and practice of federal courts.
