What is the FISA Court?
In 1978, the U.S. Congress enacted the Foreign Intelligence Surveillance Act (50 U.S.C. §§ 1801 et seq.), which attempted to allow judicial and Congressional oversight of foreign intelligence surveillance while maintaining required national security [“The Foreign Intelligence Surveillance Act of 1978 (FISA)”]. Congress enacted the legislation in reaction to the Watergate scandal during the Nixon Administration; Americans had become deeply skeptical of federal government warrantless searches using electronic surveillance upon its citizens. The Act was an attempt by Congress to restore trust and lawfulness between the American people and their government (Murse).
The Act’s provisions allow for electronic surveillance and physical searches to gather foreign intelligence. In addition, with the concurrence of the Attorney General, the President can surveil an individual without a warrant to gain intelligence. Also, as part of the Act, a secretive Foreign Intelligence Surveillance Court, FISC, was established to oversee federal government requests for surveillance warrants. In particular, the oversight by the Court was to ensure proper surveillance of suspected foreign spies inside the U.S. (“The Foreign Intelligence Surveillance Act and FISA Court | Sporcle Blog”).
When and Why Was the Court Established?
As mentioned above, FISC was established as part of the FISA of 1978. Its primary purpose is to issue surveillance warrants to the U.S. government, mainly the Federal Bureau of Investigation (F.B.I.) and the National Security Agency (N.S.A.). Originally, warrants were to be issued to focus on Soviet suspects, but after the fall of the USSR, the purpose changed. Over time, the Courts started giving surveillance orders to monitor individuals or groups suspected of links to terrorism. The Court, located in Washington, DC, operates under strict secrecy; in fact, the Court is housed in a sound-proof room located in the U.S. District Court near the White House (“The Foreign Intelligence Surveillance Act and FISA Court | Sporcle Blog”).
Eleven federal judges sit on the FISC, and each is appointed by the Chief Justice of the U.S. Supreme Court for a seven-year term; the judges do not appear before the Senate for confirmation. FISA requires that the judges represent seven U.S. Judicial circuits, and three judges live within twenty miles of Washington, DC. The judges rotate on the bench one week at a time (Murse).
An application for a warrant must be presented to an individual Judge; the Judge reviews the application for authorization. Even with a formal process, it is rare that FISA warrants are denied. Between 2009 and 2015, out of 10,700 applications, only two were denied (Emanuel). Even if denied, the United States Attorney General can issue emergency surveillance approval as long as notification is given to the FISC within seven days (“What is a FISA Court”).
The FISA established two Courts: the FISC has authority over FISA applications, while the Foreign Intelligence Surveillance Court of Review (FISCR) may consider FISC appeals. Applications for electronic or physical surveillance must contain nine specific details, such as the targets name, description of the search, proposed minimization procedures, and how the search will occur, among other requirements (“Foreign Intelligence Surveillance Act (FISA); An Overview”). In addition, the government must show probable cause that the subject is a foreign power or agent and is using the place where the surveillance is to take place. Since all hearings are confidential, monitoring the probable cause or accuracy of the government’s requests is challenging (“About the Foreign Intelligence Surveillance Court | Foreign Intelligence Surveillance Court | United States”).
What relevance does the Court have to current events?
Due to no public monitoring of the FISC’s activities, it is difficult to know what the Court has done. However, in 2013, Edward Snowden, an employee of both the N.S.A. and F.B.I., leaked a FISC warrant to The Guardian, a United Kingdom newspaper. The top-secret document he released detailed the mass collection of telephone metadata by Verizon Wireless. The leak revealed that major American and international corporations (Apple, Facebook, Yahoo, Google, and Microsoft) were all responsible for collecting this data at the expense of American citizens. The number of documents that Snowden downloaded is estimated to be over 1.5 million. The documents contained sensitive information of which the N.S.A. claimed would harm American surveillance attempts; in his defense, Snowden claimed he released the documents to show the level to which Americans have been subject to surveillance on the approval of FISC (“What is FISA Court”).
Investigators have recently sought evidence from the FISC of whether President Obama ordered Donald Trump’s phones to be tapped during his candidacy. It appears that a joint task force (which included the F.B.I., D.O.J., C.I.A., and N.S.A.) was formed to determine the credibility of money paid directly to Trump’s campaign from the Soviet Union. The B.B.C. claims the group applied to the FISC for a wiretap of Trump’s phones; the warrant was initially denied but issued in 2016 (Hurley). If proven correct, the credibility of the Court is placed back in the spotlight, and Congress will once again have to step up and correct the mess created by spying on American citizens as it attempted to do in 1978.
Works Cited
“About the Foreign Intelligence Surveillance Court | Foreign Intelligence Surveillance Court | United States.” Uscourts.gov, 2013, http://www.fisc.uscourts.gov/about-foreign-intelligence-surveillance-court.
Emanuel. “Only 1 in 10,000 FISA Requests Was Denied in 6 Years — Obama’s First Request to Wiretap Trump Denied in 2016 – the Patriot Nation.” The Patriot Nation, 11 June 2021, thepatriotnation.net/obamas-first-request-wiretap/. Accessed 14 Nov. 2021.
Fisher), Deborah. “Surveillance and Wiretapping.” Www.mtsu.edu, mtsu.edu/first-amendment/article/1153/surveillance-and-wiretapping.
Foreign Intelligence Surveillance Act (FISA): An Overview. 21 Apr. 2021.
Hurley, Lawrence. “U.S. Supreme Court Declines to Weigh Public Access to Surveillance Court Rulings.” Reuters, 1 Nov. 2021, http://www.reuters.com/world/us/us-supreme-court-declines-weigh-public-access-surveillance-court-rulings-2021-11-01/. Accessed 14 Nov. 2021.
Murse, Tom. “What Does the Secretive FISA Court Do and Who Are the Judges?” ThoughtCo, 21 Dec. 2018, http://www.thoughtco.com/fisa-court-4137599.
The Foreign Intelligence Surveillance Act and FISA Court | Sporcle Blog. 29 July 2017, http://www.sporcle.com/blog/2017/07/what-is-the-fisa-court/. Accessed 14 Nov. 2021.
“The Foreign Intelligence Surveillance Act of 1978 (FISA).” Bureau of Justice Assistance, bja.ojp.gov/program/it/privacy-civil-liberties/authorities/statutes/1286. Accessed 13 Nov. 2021.
“What Is a FISA Court?” FindLaw, 15 June 2013, http://www.findlaw.com/legalblogs/law-and-life/what-is-a-fisa-court/. Accessed 13 Nov. 2021.
What Is FISA Court? 26 Apr. 2021, caseguard.com/articles/what-is-fisa-court/. Accessed 14 Nov. 2021.
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