The United States Foreign Intelligence Surveillance Court (or FISC) is a U.S. federal court authorized under 50 U.S.C. § 1803, Pub.L. 95-511, 92 Stat. 1788, enacted October 25, 1978. 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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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.
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.
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.
| Judge | Judicial district | Date appointed | Term expiry |
|---|---|---|---|
| John D. Bates (presiding) | District of Columbia | February 22, 2006 | February 21, 2013 |
| Dee Benson | District of Utah | April 8, 2004 | May 18, 2011 |
| Thomas Hogan | District of Columbia | May 18, 2009 | May 18, 2016 |
| Malcolm Howard | Eastern District of North Carolina | May 19, 2005 | May 18, 2012 |
| Martin L.C. Feldman | Eastern District of Louisiana | May 19, 2010 | May 18, 2017 |
| Mary A. McLaughlin | Eastern District of Pennsylvania | May 18, 2008 | May 18, 2015 |
| 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 |
| Reggie B. Walton | District of Columbia | May 19, 2007 | May 18, 2014 |
| Susan Webber Wright | Eastern District of Arkansas | May 18, 2009 | May 18, 2016 |
| James Zagel | Northern District of Illinois | May 18, 2008 | May 18, 2015 |