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Revision as of 17:18, 19 June 2008

The United States Foreign Intelligence Surveillance Court (or FISC) is a U.S. federal court authorized under 50 U.S.C. § 1803. 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]

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.


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.

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.

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

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

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
Frederick B. Lacey District of New Jersey 1979 1985

Notes

  1. ^ Cohen, David (April 17, 2004). American National Security and Civil Liberties in an Era of Terrorism. Palgrave. ISBN 1-4039-6199-9. {{cite book}}: Unknown parameter |coauthors= ignored (|author= suggested) (help) p. 34
  2. ^ According to the US Code Title 50 § 1805
  3. ^ Here are some more details on the record of the FISA Court, Talking Points Memo, December 17 2005
  4. ^ Secret Court Rebuffs Ashcroft: Justice Dept. Chided On Misinformation, Washington Post, August 23, 2002 page A01
  5. ^ Bush Lets U.S. Spy on Callers Without Courts, New York Times, December 16 2005 - mirror
  6. ^ Spy Court Judge Quits In Protest: Jurist Concerned Bush Order Tainted Work of Secret Panel, Washington Post, December 21 2005

References

See also

External links

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