Overview:
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Long the most secretive judicial body in the United States, the Foreign Intelligence Surveillance Court (FISC) is responsible for hearing requests by federal law enforcement officials to conduct surveillance of Americans or foreigners in the US who are deemed a threat to national security. FISC operates under the Foreign Intelligence Surveillance Act (FISA) of 1978, which was adopted in the wake of governmental abuses of power by the Nixon administration, the Army and the CIA during the 1960s and 1970s. Few Americans had ever heard of the FISC until 2005 when media reports exposed actions by the National Security Agency, operating under orders from President George W. Bush, to monitor phone calls, emails and other electronic communications that may contain information about terrorist activities. The wiretapping was conducted without approval by FISC, setting off a firestorm of debate on Capitol Hill and resulting in changes to FISA to accommodate President Bush’s wishes to continue spying on foreign and domestic communications.
History:
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In its efforts to fight communism during the Cold War, the US government often trampled on the civil rights of its citizens, producing a long legacy of unscrupulous and illegal activities. Army intelligence got out of hand during the Vietnam War when agents were ordered to spy on war protesters and Army personnel who refused to fight in the conflict. With the advent of large-scale antiwar protests, the Army decided that the files of the FBI, Justice Department and other agencies were not adequate for its intelligence needs. The Army extended its purview into areas normally reserved to regular law enforcement bodies, which was done without Congressional approval and, in some cases, clandestine activities were done without the knowledge of Army civilian officials. The Army compiled dossiers on between 2,000 and 5,000 individuals and numerous political organizations, including the NAACP and the American Civil Liberties Union. The Army also circulated to base commanders a six-volume “blacklist” of dissidents and their organizations.
As bad as the Army’s behavior was, the CIA’s was even worse. In addition to helping assassinate foreign heads of state and overthrowing popularly-elected governments, CIA agents violated federal law in place since the agency’s founding that prohibited the spy operation from snooping on Americans. In the wake of the Watergate scandal and the Nixon administration’s own illegal activities, Congress conducted investigations into the CIA and other nefarious actions by federal agencies. The Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, otherwise known as the Church Committee, after its chairman, Senator Frank Church (D-ID), uncovered a bounty of illegal and unethical conduct by American officials that prompted lawmakers to impose new laws to prevent wanton spying on US citizens by their own government.
In 1978 Congress adopted the Foreign Intelligence Surveillance Act (FISA) in an attempt to protect Americans, while allowing certain federal departments the means to request surveillance on dangerous individuals or organizations. The mechanism for implementing FISA was the newly created Foreign Intelligence Surveillance Court, a secret judicial body made up of specially-selected federal judges chosen by the chief justice of the Supreme Court. Before it could commence certain kinds of intelligence gathering operations within the United States, the federal government had to obtain a judicial warrant similar to that required in criminal investigations from FISC.
For the next three decades, FISC operated in complete obscurity from the knowledge of most Americans. Between 1978 and 1992, Presidents Jimmy Carter, Ronald Reagan and George H. W. Bush presented 7,030 applications for warrants to the FISC, and the court approved all of them as submitted. During his eight years in office, President Bill Clinton and his Justice Department presented 6,057 warrant applications. The FISC approved 6,055 of them, modified one and rejected one.
In the wake of the 9/11 terrorist attacks, Congress and President George W. Bush passed the USA Patriot Act of 2001. Among its provisions were two changes to the FISC: the ability to authorize longer periods of surveillance; and an increased number of judges serving on the court, from seven to 11. All 11 justices serving on the court were selected by Supreme Court Chief Justice William Rehnquist, a noted conservative.
In 2005, Americans became very familiar with the FISC’s existence as the secret court was discussed in numerous media stories related to the administration of George W. Bush’s unauthorized wiretapping, through the National Security Agency, of phone calls, text messages and emails—wiretapping that was not approved by the FISC. Justices who served on FISC then asked why the President decided to bypass their court, which led to secret briefings of the judges by administration officials.
In the wake of the illicit wiretapping revelations, which produced considerable public backlash against the administration, the President went to the FISC to authorize surveillance requests. That effort proved cumbersome for the administration, as the court rejected or modified numerous warrant requests based on the FISA law. President Bush then went to Congress in 2007 to pass legislation to amend FISA in order to get the surveillance requests he wanted. Lawmakers approved a temporary measure that allowed certain surveillance to continue until a permanent solution was decided upon in 2008 (see Suggested Reforms).
What it Does:
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The Foreign Intelligence Surveillance Court (FISC) is a secret court made up of 11 federal district court judges who are selected by the chief justice of the United States Supreme Court. The judges review applications by federal law enforcement officials for warrants related to national security investigations. Of the 11 judges, at least three must reside within 20 miles of Washington, DC. Judges travel to Washington, DC, to hear warrant applications on a rotating basis. They serve for staggered, non-renewable terms of no more than seven years and must be from different judicial circuits.
Warrant applications under the Foreign Intelligence Surveillance Act are drafted by attorneys in the General Counsel’s Office at the National Security Agency at the request of an officer of one of the federal intelligence agencies. Each application must contain the Attorney General’s certification that the target of the proposed surveillance is either a “foreign power” or “the agent of a foreign power” and, in the case of a US citizen or resident alien, that the target may be involved in the commission of a crime.
FISA also established a Foreign Intelligence Surveillance Court of Review, presided over by three district or appeals court judges designated by the Chief Justice to review, at the government’s request, the decisions of the Foreign Intelligence Surveillance Court. The Court of Review is essentially an appellate body to which federal officials can appeal if their request for surveillance is turned down by FISC. Because of the almost perfect record of the Department of Justice in obtaining the surveillance warrants and other powers it requested from the Foreign Intelligence Surveillance Court, the review court had never met until 2002. If the Court of Review upholds an FISC denial, the government may request the US Supreme Court to review the decision.
FISC has jurisdiction to hear applications for granting court orders that approve electronic surveillance or physical searches anywhere in the United States to obtain foreign intelligence information under FISA. No FISC judge may hear an application for electronic surveillance or a physical search under FISA that has been denied previously by another FISC judge. In general, such applications are either granted, granted as modified, or denied. If a FISC judge denies an application for an order authorizing electronic surveillance, the judge must explain his or her decision in writing, which is sealed and reviewable only by the Court of Review.
A procedure exists that allows for the publication of FISC opinions. Only once in its history was an opinion released for public viewing, in 2002.
Current FISC Membership
Name State Appointed Expires
Kollar-Kotelly, Colleen(Presiding) DC 5/19/2002 5/18/2009
Bates, John D. DC 2/22/2006 5/18/2013
Benson, Dee UT 4/08/2004 5/18/2011
Broomfield, Robert C. AZ 10/01/2002 5/18/2009
Howard, Malcolm NC 5/19/2005 5/18/2012
Kazen, George P. TX 7/15/2003 5/18/2010
McLaughlin, Mary A. PA 5/18/2008 5/18/2015
Scullin Jr., Frederick J. NY 5/19/2004 5/18/2011
Vinson, Roger FL 5/04/2006 5/18/2013
Walton, Reggie B. DC 5/19/2007 5/18/2014
Zagel, James B. IL 5/18/2008 5/18/2015
Current FISC Court of Review Membership
Selya, Bruce M. (Presiding) 9th Circuit 8/08/2005 8/18/2012
Winter, Ralph K., Jr. 2nd Circuit 5/18/2003 5/18/2010
Arnold, Norris Sheppard 8th Circuit 5/19/2008 5/18/2015
FISC Clearinghouse by the Federation of American Scientists
Controversies:
The Court of Review met with a phalanx of legal officials from the administration. Ten members of the Department of Justice were present, led by Solicitor General Theodore B. Olson, who became famous when he presented the Bush-Cheney case to the Supreme Court during the 2000 presidential election dispute. Other notables included James A. Baker, in his role as counsel for the Office of Intelligence Policy and Review, and Senior Justice Lawyer John C. Yoo.
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Illegal Wiretapping Prompted by FISC Rejections
In 2002 the Foreign Intelligence Surveillance Court, for the first time in its history, and despite its heavily Republican makeup, began balking at many of the Bush administration’s surveillance requests. According to Justice Department reports to Congress, FISC had modified more wiretap requests from the Bush administration than from the four previous presidential administrations combined.
In December 2005, the New York Times reported that, in response to this obstruction, President Bush decided to bypass the panel and ordered the National Security Agency to conduct illegal spying of US-based communications. The NSA then spied on hundreds and possibly thousands of Americans and foreigners inside the United States.
“They wanted to expand the number of people they were eavesdropping on, and they didn’t think they could get the warrants they needed from the court to monitor those people,” said James Bamford, author of Body of Secrets: Anatomy of the Ultra-Secret National Security Agency and The Puzzle Palace: Inside America's Most Secret Intelligence Organization. “The FISA court has shown its displeasure by tinkering with these applications by the Bush administration.”
The court had approved at least 18,740 applications for electronic surveillance or physical searches from five presidential administrations since 1979. The judges modified only two search warrant orders out of the 13,102 applications that were approved over the first 22 years of the court’s operation.
But between 2003 and 2007, the judges modified 393 of the 10,111 requests for court-ordered surveillance by the Bush administration.
Bush Lets U.S. Spy on Callers Without Courts (by James Risen and Eric Lichtblau, New York Times)
First-ever Review of FISC Ruling
In September 2002, the Court of Review met for the first time in its history after the Bush Administration failed to get what it wanted from the Foreign Intelligence Surveillance Court. In submitting its request for certain warrants, the administration had tried to expand the coverage of FISA jurisdiction to allow prosecutors and local law enforcement agencies to be involved in the surveillance program and to have access to information obtained through the surveillance. FISC modified the requests before accepting them, which the Bush administration was not pleased with, so it appealed to the Court of Review.
The Court of Review met with a phalanx of legal officials from the administration. Ten members of the Department of Justice were present, led by Solicitor General Theodore B. Olson, who became famous when he presented the Bush-Cheney case to the Supreme Court during the 2000 presidential election dispute. Other notables included James A. Baker, in his role as counsel for the Office of Intelligence Policy and Review, and Senior Justice Lawyer John C. Yoo.
The Justice Department team was joined by Spike Bowman, a lawyer for the FBI, and David S. Addington, a lawyer representing Vice-President Cheney’s office. Lawyers supporting the FISC decision to limit the warrants that the administration was seeking were not allowed to be present, so the ACLU and others later submitted a written brief to the three justices.
Olson argued that a FISC-approved surveillance could uncover information about a suspect that, although totally unrelated to terrorism, might indicate illegal or illicit activities that could then be used to blackmail or intimidate a terrorism-related suspect into cooperating with the authorities. Such a prosecution or threat of prosecution would be approved by the Attorney General who, at the time, was John Ashcroft. It is worth noting that FISA warrants are issued based on a lower than usual standard that does not require probable cause, and that if a FISA-approved surveillance leads to a prosecution, the targets may not be allowed to obtain copies of their intercepted communications.
The Bush administration also wanted to change the phrase “the purpose of the surveillance is to obtain foreign intelligence information” to “a significant purpose of the surveillance….” This qualifying word could open the door to all manner of other “purposes” for surveillance. When the Court of Review judges tried to get the Justice Department officials to clarify what other purposes there might be besides suspicion of terrorism or espionage, Olson and Baker were evasive. Exasperated, Judge Lawrence Silberman said, “I’ll try one more time and then I’ll give up.” Olson complained that the judges were asking “very, very difficult questions” and, in the end, Silberman never got his answer.
On November 18, 2002, the Court of Review sided with the Bush Administration and granted its original requests.
What is the Bush Administration Trying to Hide? (by David Wallechinsky, Huffington Post)
Secret U.S. court OKs electronic spying (by Dedan McCullagh, CNET News)
FISC Warrants Lead to Violations
According to documents from the Foreign Intelligence Surveillance Court, the FBI has repeatedly failed to abide by limits placed on surveillances that the court allowed. In one case, the FBI assured the court that they had developed software that allowed them to pick up a surveillance target’s emails without accessing anyone else’s emails. But when the software was activated, it did access the email accounts of people not covered by the warrant.
In another case, the FISC had approved surveillance of a target’s phone calls and email. When it came time to renew the warrant, the FBI asked to continue wiretapping the target, but said they no longer needed to check his email. So the FISC approved a new version of the warrant that excluded email coverage. Nevertheless, the FBI continued to cover the target’s email anyway.
Other cases included FBI videotaping of a meeting even though videotaping had not been authorized, unauthorized searches and continuing surveillance after warrants ran out.
In one case, the FBI failed to notice that a target had given up his cell phone and that the cell phone number had been reassigned to a new person. The FBI continued this electronic surveillance “for a substantial period of time” even though the new owner of the cell phone number spoke a different language than the target.
FBI Disregards FISC Ruling
According to a Justice Department investigation, twice in 2006 FBI officials went before the Foreign Intelligence Surveillance Court to obtain warrants and were rebuffed. Instead of abiding by the court’s decision, the FBI went around it to obtain the information it was seeking through national security letters, an administrative procedure that doesn’t require court approval. The FBI’s top lawyer later told Justice investigators that it was appropriate for her agency to issue the letters because she disagreed with the court's conclusions.
The discovery came as part of a larger examination by the bureau’s inspector general into the FBI’s abuse of national security letters to spy on numerous individuals, including Americans. The FBI issued almost 200,000 national security letters from 2003 through 2006. The attorney general identified hundreds of possible violations of laws or internal guidelines in the use of the letters, including cases in which FBI agents made improper requests, collected more data than they were allowed to, or did not have proper authorization to proceed with the case.
FBI Found to Misuse Security Letters (by Dan Eggen, Washington Post)
Republican Leaks Classified Info from FISC Ruling
In August 2007 House Minority Leader John Boehner (R-OH) disclosed what government officials said was classified information from an FISC ruling while trying to defend President Bush’s warrantless wiretapping program. Boehner said, “There’s been a ruling, over the last four or five months, that prohibits the ability of our intelligence services and our counterintelligence people from listening in to two terrorists in other parts of the world where the communication could come through the United States.” Earlier that year, FISC secretly ruled that the administration’s wiretapping of communications between two countries overseas that are passed between the United States were illegal.
Ruling Limited Spying Efforts: Move to Amend FISA Sparked by Judge’s Decision (by Carol D. Leonnig and Ellen Nakashima, Washington Post)
FISC Denies ACLU Request to Publish Rulings
In 2007 FISC judges declined a request by the American Civil Liberties Union (ACLU) to release court records for rulings that pertain to the NSA surveillance program. A FISC ruling stated the court would not disclose the details or reasoning behind critical rulings that evaluated the legality of the NSA surveillance program because doing so would endanger national security and hamper the federal government's intelligence gathering abilities.
The ACLU’s request called for independent judicial review of relevant documents so that wrongfully classified material could be declassified and disclosed to the general public. ACLU lawyers argued that the executive branch should not be able to unilaterally obscure access to information that could provide essential insight into the legal basis for national surveillance programs.
Secret surveillance court refuses to disclose legal rulings (by Ryan Paul, Ars Technica)
FISC Denial of ACLU Motion to Open Court Records
(ACLU website) (PDF)
Suggested Reforms:
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Congress Amends FISA, Grants Immunity to Phone Companies
In July 2008, Congress approved controversial legislation that allowed the government to continue wiretapping operations of suspected terrorist by amending the Foreign Intelligence Surveillance Act of 1978. For almost a year, Democrats and Republicans fought over language in the bill, including a provision that granted retroactive legal immunity to phone companies that participated in the unauthorized wiretapping of phone calls and other electronic communications in the US. President Bush threatened to veto the bill unless the immunity provision was included.
In spite of the threat, some Democrats continued to try and make changes to the final bill just before passage. Sen. Christopher Dodd (D-CT) offered an amendment that would have stripped immunity from the bill. It was defeated on a 32-66 vote. Republican Sen. Arlen Specter (PA) proposed an amendment to require a district court judge to assess the legality of warrantless wiretapping before granting immunity. It failed on a 37-61 vote. Sen. Jeff Bingaman (D-NM) proposed that immunity be delayed until after a yearlong government investigation into warrantless wiretapping is completed. His amendment failed on a vote of 42-56.
In addition to granting retroactive immunity to phone companies, the bill sets new rules for government eavesdropping. Some of them tightened the reins on current government surveillance activities, while others loosened them compared with the way FISA stood when it was first passed in 1978.
For example, the new law would require the government to get FISC approval before it eavesdrops on an American overseas. Previously, the attorney general could approve this category of electronic surveillance on his own. But the bill also allowed the government to obtain broad, yearlong intercept orders from FISC that target foreign groups and people, raising the prospect that communications with innocent Americans could be swept up. FISC would have to approve how the government chooses the targets, and how the intercepted American communications are to be protected.
The bill also gave the government a week to conduct a wiretap in an emergency before it must apply for a court order. The original law only allowed three days. The bill restated that FISA is the only means by which wiretapping for intelligence purposes can be conducted inside the United States. This was meant to prevent a repeat of warrantless wiretapping by future administrations.
Senate commits to shielding telecoms from suits (by Pamela Hess, Associated Press)
- Table of Contents
- Overview
- History
- What it Does
- Where Does the Money Go
- Controversies
- Suggested Reforms
- Comments
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Foreign Intelligence Surveillance Court
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