United States Foreign Intelligence Surveillance Court
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The United States Foreign Intelligence Surveillance Court (or FISC) is a U.S. federal court authorized under . It was established by the Foreign Intelligence Surveillance Act of 1978 (FISA). The FISC oversees requests for surveillance warrants against suspected foreign intelligence agents inside the United States by federal police agencies (primarily the F.B.I.). The FISA and FISC were inspired by the recommendations of the Church Committee.[1]
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[edit] FISA warrant
Each application for one of these surveillance warrants (called a FISA warrant) is made before an individual judge of the court. Like a grand jury, FISC is not an adversarial court: the federal government is the only party to its proceedings. However, the court may allow third parties to submit briefs as amici curiae. When the Attorney General determines that an emergency exists he may authorize the emergency employment of electronic surveillance before obtaining the necessary authorization from the FISA court, after which the Attorney General or his designee must notify a judge of the court not more than 72 hours after the Attorney General authorizes such surveillance.[2]
If an application is denied by one judge of the FISC, the federal government is not allowed to make the same application to a different judge of the FISC. Instead, denials must be appealed to the United States Foreign Intelligence Surveillance Court of Review. Such appeals are rare: the first appeal from the FISC to the Court of Review was made in 2002, 24 years after the founding of the FISC.
It is also rare for FISA warrant requests to be turned down by the court. Through the end of 2004, 18,761 warrants were granted, while just five were rejected (many sources say four). Fewer than 200 requests had to be modified before being accepted, almost all of them in 2003 and 2004. The four known rejected requests were all from 2003, and all four were partially granted after being resubmitted for reconsideration by the government. Of the requests that had to be modified, few if any were before the year 2000. In subsequent years, according to journalist Joshua Micah Marshall, the breakdown was as follows:[3]
| Year | Modified requests |
|---|---|
| 2000 | 1 request modified |
| 2001 | 2 requests modified |
| 2002 | 2 requests modified (both modifications later reversed) |
| 2003 | 79 requests modified (out of 1724 granted) |
| 2004 | 94 requests modified (out of 1758) |
On May 17, 2002, the court rebuffed then-Attorney General John Ashcroft, releasing an opinion that alleged that FBI and Justice Department officials had "supplied erroneous information to the court in more than 75 applications for search warrants and wiretaps, including one signed by then-FBI Director Louis J. Freeh".[4] Whether this rebuke is related to the court starting to require modification of drastically more requests in 2003 is unknown.
On December 16, 2005, the New York Times reported that the Bush administration had been conducting surveillance against U.S. citizens without the knowledge of the FISC since 2002.[5] On December 20, 2005, Judge James Robertson resigned his position with the FISC, apparently in protest of the secret surveillance.[6] The government's apparent circumvention of the FISC started prior to the increase in court-ordered modifications to warrant requests.
[edit] Closed hearings and classified proceedings
Because of the sensitive nature of its business, the FISC is a "secret court": its hearings are closed to the public, and, while records of the proceedings are kept, those records are also not available to the public. (Copies of those records with classified information redacted can and have been made public.) Due to the classified nature of its proceedings, only government attorneys are usually permitted to appear before the FISC. Due to the nature of the matters heard before it, FISC hearings may need to take place at any time of day or night, weekdays or weekends; thus, at least one judge must be "on call" at all times to hear evidence and decide whether or not to issue a warrant.
[edit] Composition
When the court was founded, it was composed of seven federal district judges appointed by the Chief Justice of the United States, each serving a seven year term, with one judge being appointed each year. In 2001, the USA PATRIOT Act expanded the court from seven to eleven judges, and required that at least three of the judges of the court be from within twenty miles (32 km) of the District of Columbia. No judge may be appointed to this court more than once, and no judge may be appointed to both the Court of Review and the FISC.
[edit] Current membership
| Judge | Judicial district | Date appointed | Term expiry |
|---|---|---|---|
| Colleen Kollar-Kotelly (presiding) | District of Columbia | May 19, 2002 | May 18, 2009 |
| John D. Bates | District of Columbia | February 22, 2006 | May 18, 2013 |
| Dee Benson | District of Utah | April 8, 2004 | May 18, 2011 |
| Robert C. Broomfield | District of Arizona | October 1, 2002 | May 18, 2009 |
| James G. Carr | Northern District of Ohio | May 19, 2002 | May 18, 2008 |
| Nathaniel M. Gorton | District of Massachusetts | May 18, 2001 | May 18, 2008 |
| Reggie B. Walton | District of Columbia | May 19, 2007 | May 18, 2014 |
| Malcolm Howard | Eastern District of North Carolina | May 19, 2005 | May 18, 2012 |
| George P. Kazen | Southern District of Texas | July 15, 2003 | May 18, 2010 |
| Frederick J. Scullin, Jr. | Northern District of New York | May 19, 2004 | May 18, 2011 |
| Roger Vinson | Northern District of Florida | May 4, 2006 | May 18, 2013 |
[edit] Court of Review, Current membership
| Judge | Judicial district | Date appointed | Term expiry |
|---|---|---|---|
| Edward Leavy (presiding) | Ninth Circuit | September 25, 2001 | May 18, 2008 |
| Ralph K. Winter, Jr. | Second Circuit | May 18, 2003 | May 18, 2010 |
| Bruce M. Selya | First Circuit | August 8, 2005 | August 18, 2012 |
[edit] Former membership
| Judge | Judicial District | Date Appointed | Term Expiry |
|---|---|---|---|
| James Robertson | District of Columbia | May 19, 2002 | May 18, 2006 (resigned December 20, 2005) |
| Harold A. Baker | Central District of Illinois | 2005 | |
| Stanley S. Brotman | District of New Jersey | 2004 | |
| William H. Stafford Jr. | Northern District of Florida | 2003 | |
| Royce C. Lamberth | District of Columbia | 1995 | 2002 |
| John F. Keenan | Southern District of New York | May 1994 | May 2001 |
| Claude M. Hilton | Eastern District of Virginia | May 2000 | May 2007 |
| Michael J. Davis | District of Minnesota | May 2006 |
[edit] Notes
- ^ Cohen, David; John Wells (April 17, 2004). American National Security and Civil Liberties in an Era of Terrorism. Palgrave. ISBN 1-4039-6199-9. p. 34
- ^ According to the US Code Title 50 § 1805
- ^ Here are some more details on the record of the FISA Court, Talking Points Memo, December 17, 2005
- ^ Secret Court Rebuffs Ashcroft: Justice Dept. Chided On Misinformation, Washington Post, August 23, 2002 page A01
- ^ Bush Lets U.S. Spy on Callers Without Courts, New York Times, December 16, 2005 - mirror
- ^ Spy Court Judge Quits In Protest: Jurist Concerned Bush Order Tainted Work of Secret Panel, Washington Post, December 21, 2005
[edit] References
- Foreign Intelligence Surveillance Court 2007 Membership. from the Federation of American Scientists. Retrieved on May 24, 2007.
- Judge Walton Named to Foreign Intel Surveillance Court. from Secrecy News. Retrieved on May 24, 2007.
- Judge John D. Bates Appointed to the FISA Court. from Secrecy News. Retrieved on March 24, 2006.
- New FISA Court Judge Appointed. from Secrecy News. Retrieved on May 24, 2006.
- Judges on Secretive Panel Speak Out on Spy Program. New York Times. Retrieved on March 29, 2006.
- "Big Brother is Listening" by James Bamford, Atlantic Monthly, April 2006.
- NSA's surveillance of citizens echoes 1970s controversy. USA Today. Retrieved on December 18, 2005.
- FISA orders 1979-2004
- Ashcroft, John (2001). (Untitled DOJ memo summarizing FISA applications for calendar year 2000). Retrieved on December 17, 2005.
- Ashcroft, John (2002). (Untitled DOJ memo summarizing FISA applications for calendar year 2001). Retrieved on December 17, 2005.
- Ashcroft, John (2003). (Untitled DOJ memo summarizing FISA applications for calendar year 2002). Retrieved on December 17, 2005.
- Moschella, William E. (2004). (Untitled DOJ memo summarizing FISA applications for calendar year 2003) (PDF). Retrieved on December 17, 2005.
- Moschella, William E. (2005). (Untitled DOJ memo summarizing FISA applications for calendar year 2004) (PDF). Retrieved on December 17, 2005.
