United States Foreign Intelligence Surveillance Court
Encyclopedia
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
.
, 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.
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:
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". 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. On December 20, 2005, Judge James Robertson
resigned his position with the FISC, apparently in protest of the secret surveillance. The government's apparent circumvention of the FISC started prior to the increase in court-ordered modifications to warrant requests.
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.
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.
United States federal courts
The United States federal courts make up the judiciary branch of federal government of the United States organized under the United States Constitution and laws of the federal government.-Categories:...
authorized under , . It was established by the Foreign Intelligence Surveillance Act of 1978 (FISA). The FISC oversees requests for surveillance warrants
Warrant (law)
Most often, the term warrant refers to a specific type of authorization; a writ issued by a competent officer, usually a judge or magistrate, which permits an otherwise illegal act that would violate individual rights and affords the person executing the writ protection from damages if the act is...
against suspected foreign intelligence agents
Secret Agent
Secret Agent is a British film directed by Alfred Hitchcock, loosely based on two stories in Ashenden: Or the British Agent by W. Somerset Maugham. The film starred John Gielgud, Peter Lorre, Madeleine Carroll, and Robert Young...
inside the United States by federal police agencies (primarily the F.B.I.
Federal Bureau of Investigation
The Federal Bureau of Investigation is an agency of the United States Department of Justice that serves as both a federal criminal investigative body and an internal intelligence agency . The FBI has investigative jurisdiction over violations of more than 200 categories of federal crime...
). The FISA and FISC were inspired by the recommendations of the Church Committee
Church Committee
The Church Committee is the common term referring to the United States Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, a U.S. Senate committee chaired by Senator Frank Church in 1975. A precursor to the U.S...
.
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 juryGrand jury
A grand jury is a type of jury that determines whether a criminal indictment will issue. Currently, only the United States retains grand juries, although some other common law jurisdictions formerly employed them, and most other jurisdictions employ some other type of preliminary hearing...
, 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
Amicus curiae
An amicus curiae is someone, not a party to a case, who volunteers to offer information to assist a court in deciding a matter before it...
. 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.
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
United States Foreign Intelligence Surveillance Court of Review
The United States Foreign Intelligence Surveillance Court of Review is a U.S. federal court authorized under and established by the Foreign Intelligence Surveillance Act of 1978...
. 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:
| 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
United States Attorney General
The United States Attorney General is the head of the United States Department of Justice concerned with legal affairs and is the chief law enforcement officer of the United States government. The attorney general is considered to be the chief lawyer of the U.S. government...
John Ashcroft
John Ashcroft
John David Ashcroft is a United States politician who served as the 79th United States Attorney General, from 2001 until 2005, appointed by President George W. Bush. Ashcroft previously served as the 50th Governor of Missouri and a U.S...
, releasing an opinion that alleged that FBI and Justice Department
United States Department of Justice
The United States Department of Justice , is the United States federal executive department responsible for the enforcement of the law and administration of justice, equivalent to the justice or interior ministries of other countries.The Department is led by the Attorney General, who is nominated...
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". 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
George W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....
administration had been conducting surveillance against U.S. citizens without the knowledge of the FISC since 2002. On December 20, 2005, Judge James Robertson
James Robertson (judge)
James Robertson is a United States federal judge serving on the United States District Court for the District of Columbia.Born in Cleveland, Ohio, Robertson graduated from Western Reserve Academy in Hudson, Ohio, and received a B.A. from Princeton University in 1959. He served in the United States...
resigned his position with the FISC, apparently in protest of the secret surveillance. 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 informationClassified information in the United States
The United States government classification system is currently established under Executive Order 13526, the latest in a long series of executive orders on the topic. Issued by President Barack Obama in 2009, Executive Order 13526 replaced earlier executive orders on the topic and modified the...
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 districtUnited States district court
The United States district courts are the general trial courts of the United States federal court system. Both civil and criminal cases are filed in the district court, which is a court of law, equity, and admiralty. There is a United States bankruptcy court associated with each United States...
judges appointed by the Chief Justice of the United States
Chief Justice of the United States
The Chief Justice of the United States is the head of the United States federal court system and the chief judge of the Supreme Court of the United States. The Chief Justice is one of nine Supreme Court justices; the other eight are the Associate Justices of the Supreme Court of the United States...
, each serving a seven year term, with one judge being appointed each year. In 2001, the USA PATRIOT Act
USA PATRIOT Act
The USA PATRIOT Act is an Act of the U.S. Congress that was signed into law by President George W. Bush on October 26, 2001...
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
Washington, D.C.
Washington, D.C., formally the District of Columbia and commonly referred to as Washington, "the District", or simply D.C., is the capital of the United States. On July 16, 1790, the United States Congress approved the creation of a permanent national capital as permitted by the U.S. Constitution....
. 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 |
|---|---|---|---|
| John D. Bates John D. Bates John Deacon Bates , is a United States federal judge for the U.S. District Court for the District of Columbia. He was appointed by President George W. Bush in December 2001, and has adjudicated in several cases directly affecting the office of the President.-Personal:Bates was born in Elizabeth,... (presiding) |
District of Columbia | February 22, 2006 | February 21, 2013 |
| Dee Benson Dee Benson Dee Vance Benson is a Federal judge and former chief judge for the United States District Court for the District of Utah. He was briefly a professional soccer player. He was nominated as judge by President George H. W. Bush on May 16, 1991, and confirmed by the United States Senate on September... |
District of Utah | April 8, 2004 | May 18, 2011 |
| Thomas Hogan Thomas Hogan Thomas Francis Hogan , a United States federal judge, is serving as Director of the Administrative Office of the United States Courts... |
District of Columbia | May 18, 2009 | May 18, 2016 |
| Malcolm Howard Malcolm Jones Howard Malcolm Jones Howard is a United States federal judge.Born in Kinston, North Carolina, Howard received a B.S. from United States Military Academy at West Point in 1962 and a J.D. from Wake Forest University School of Law in 1970. He was in the United States Army Major from 1962 to 1972. He was a... |
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 Mary A. McLaughlin Mary A. McLaughlin is a United States federal judge.Born in Philadelphia, Pennsylvania, McLaughlin received a B.A. from Gwynedd-Mercy College in 1968, an M.A. from Bryn Mawr College in 1969, and a J.D. from the University of Pennsylvania Law School in 1976. She was a law clerk, Hon. Stanley... |
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 Roger Vinson Clyde Roger Vinson is a senior federal judge of the United States District Court for the Northern District of Florida.-Life and career:... |
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 Susan Webber Wright Susan Webber Wright is a United States federal judge, presently serving as a district judge of the United States District Court for the Eastern District of Arkansas... |
Eastern District of Arkansas | May 18, 2009 | May 18, 2016 |
| James Zagel James Zagel James Block Zagel is a United States district judge for the United States District Court for the Northern District of Illinois and a novelist.- Early life and education :... |
Northern District of Illinois | May 18, 2008 | May 18, 2015 |
Former membership
| Judge | Judicial District | Date Appointed | Term Expiry |
|---|---|---|---|
| George P. Kazen | Southern District of Texas | July 15, 2003 | May 18, 2010 |
| Robert C. Broomfield Robert C. Broomfield Judge Robert C. Broomfield is a judge for the United States District Court for the District of Arizona. President Ronald Reagan nominated Judge Broomfield on May 15, 1985 and he was confirmed by the United States Senate on July 10, 1985. Judge Broomfield served as chief judge from 1994 to 1999... |
District of Arizona | October 1, 2002 | May 18, 2009 |
| Colleen Kollar-Kotelly | District of Columbia | May 18, 2002 | May 18, 2009 |
| James Robertson James Robertson (judge) James Robertson is a United States federal judge serving on the United States District Court for the District of Columbia.Born in Cleveland, Ohio, Robertson graduated from Western Reserve Academy in Hudson, Ohio, and received a B.A. from Princeton University in 1959. He served in the United States... |
District of Columbia | May 19, 2002 | May 18, 2006 (resigned December 20, 2005) |
| Nathaniel M. Gorton Nathaniel M. Gorton Nathaniel M. Gorton is a United States federal judge.Born in Evanston, Illinois, Gorton received an A.B. from Dartmouth College in 1960 and an LL.B. from Columbia Law School in 1966. He was in the United States Navy from 1960 to 1962. He was in private practice in Boston, Massachusetts from 1966... |
District of Massachusetts | May 18, 2001 | May 18, 2008 |
| James G. Carr James G. Carr James G. Carr is a federal district judge for the United States District Court for the Northern District of Ohio.Carr was born in Boston, Massachusetts. He received a B.A. from Kenyon College in 1966, and an LL.B. from Harvard Law School in 1969. He was in private practice of law in Chicago,... |
Northern District of Ohio | May 19, 2002 | May 18, 2008 |
| Claude M. Hilton Claude M. Hilton Claude M. Hilton is a United States federal judge.Born in Scott County, Virginia, Hilton received a B.S. from Ohio State University in 1963 and a J.D. from American University, Washington College of Law in 1966. He was an assistant commonwealth's attorney of Arlington, Virginia from 1967 to 1968... |
Eastern District of Virginia | May 2000 | May 2007 |
| John Edwards Conway John Edwards Conway John Edwards Conway is a United States federal judge.Born in Joplin, Missouri, Conway received a B.S. from U.S. Naval Academy in 1956 and was a U.S. Air Force Lieutenant from 1956 to 1960. He was in the U.S. Air Force Reserve from 1960 to 1970, receiving an LL.B... |
District of New Mexico | 2000 | May 2006 |
| Michael J. Davis Michael J. Davis Michael James Davis is an American lawyer and United States federal judge. He has sat on the United States District Court for the District of Minnesota since 1994.-Early life, education, and career:... |
District of Minnesota | May 2006 | |
| Harold A. Baker Harold A. Baker Harold Albert Baker is a United States federal judge on the United States District Court for the Central District of Illinois, with chambers in Urbana, Illinois... |
Central District of Illinois | 2005 | |
| Stanley S. Brotman | District of New Jersey | 2004 | |
| William Henry Stafford Jr. William Henry Stafford Jr. William Henry Stafford Jr. is a United States federal judge.Born in Masury, Ohio, Stafford received a B.S. from Temple University in 1953 and an LL.B. from Temple University School of Law in 1956. He was in the United States Navy Lieutenant from 1956 to 1960. He was in private practice in... |
Northern District of Florida | 1996 | 2003 |
| Royce C. Lamberth Royce C. Lamberth Royce C. Lamberth is a federal judge in the United States District Court for the District of Columbia, serving as its Chief Judge.... |
District of Columbia | 1995 | 2002 |
| John F. Keenan John F. Keenan John Fontaine Keenan is a federal judge for the United States District Court for the Southern District of New York. Judge Keenan received a B.B.A. from Manhattan College in 1951 and an LL.B from Fordham University School of Law, in 1954. He was nominated to the court by Ronald Reagan on September... |
Southern District of New York | May 1994 | May 2001 |
| James C. Cacheris James C. Cacheris James C. Cacheris is currently serving as judge on the United States District Court in the Eastern District of Virginia.... |
Eastern District of Virginia | 1993 | 2000 |
| Earl H. Carroll Earl H. Carroll Earl Hamblin Carroll is a United States federal judge in senior status, for the United States District Court for the District of Arizona.-Early life and education:... |
District of Arizona | 1992 | 1999 |
| Charles Schwartz Jr. Charles Schwartz Jr. Charles Schwartz Jr. is a United States federal judge.Born in New Orleans, Louisiana, Schwartz received a B.A. from Tulane University in 1943 and was in the United States Army Second Lieutenant from 1943 to 1945, remaining in the United States Army Reserves from 1946 to 1965 and attaining the rank... |
Eastern District of Louisiana | 1991 | 1998 |
| Ralph G. Thompson | Western District of Oklahoma | 1990 | 1997 |
| Frank Freedman | District of Massachusetts | 1990 | 1997 |
| Wendell Alverson Miles Wendell Alverson Miles Wendell Alverson Miles is a United States federal judge.Born in Holland, Michigan, Miles received an A.B. from Hope College in 1938, a M.A. from the University of Wyoming in 1939, and a J.D. from the University of Michigan Law School in 1942. He was in the United States Army during World War II... |
Western District of Michigan | 1989 | 1996 |
| Robert W. Warren Robert W. Warren Robert Willis Warren was a United States federal judge and politician from Wisconsin.Warren was born in Raton, New Mexico. He received a B.A. from Macalester College in 1950, an M.A. from the University of Minnesota in 1951, and a J.D. from the University of Wisconsin Law School in 1956... |
Eastern District of Wisconsin | 1989 | 1996 |
| Joyce H. Green | District of Columbia | 1988 | 1995 |
| James E. Noland James Ellsworth Noland James Ellsworth Noland was a United States federal judge and a U.S. Representative from Indiana.Born in La Grange, Missouri, Noland received an A.B. from Indiana University in 1942 and an M.B.A. from Harvard Graduate School of Business Administration in 1943. He was in the United States Army... |
Southern District of Indiana | 1987 | 1994 |
| Conrad K. Cyr Conrad K. Cyr Conrad Keefe Cyr is a senior judge of the United States Court of Appeals for the First Circuit.- Education and early career :Born in Limestone, Maine, Cyr received a B.S. from Holy Cross College in 1953 and a J.D. from Yale Law School in 1956... |
District of Maine | 1987 | 1994 |
| Frederick B. Lacey | District of New Jersey | 1979 | 1985 |
See also
- NSA#External links
- James Bamford#External links
- Operation CHAOSOperation CHAOS]Operation CHAOS or Operation MHCHAOS was the code name for a domestic espionage project conducted by the Central Intelligence Agency. A department within the CIA was established in 1967 on orders from President of the United States Lyndon B. Johnson and later expanded under President Richard Nixon...
- Commission nationale de contrôle des interceptions de sécurité