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United States Foreign Intelligence Surveillance Court
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"FISC" redirects here. For other uses, see Fisc (disambiguation).
The United States Foreign Intelligence Surveillance Court (FISC) is a U.S. federal court established and authorized under the Foreign Intelligence Surveillance Act of 1978 (FISA) ( 50 U.S.C. § 1803, Pub.L. 95–511, 92 Stat. 1788, enacted October 25, 1978).
The court oversees requests for surveillance warrants against suspected foreign intelligence agents inside the United States by federal law enforcement agencies (primarily the National Security Agency (NSA) and the Federal Bureau of Investigation). Congress created FISA and its court (also called the FISA Court) as a result of the recommenations by the U.S. Senate's Church Committee. [1] Its powers have evolved and expanded to the point that it is "almost a parallel Supreme Court". [2]
Since 2009, the court has been located in the E. Barrett Prettyman United States Courthouse in Washington, D.C. [3] [4] For roughly thirty years of its history, it was housed on the sixth floor of the Robert F. Kennedy Department of Justice Building. [3] [4]
In 2013, a top-secret warrant issued by the court was leaked to the media. That warrant, which ordered Verizon to provide a daily feed of all call detail records – including those for domestic calls – to the NSA, sparked a public outcry of criticism and controversy.
Court's secret law narrowly interprets 4th Amendment[ edit]In July 2013, The New York Times published disclosures from anonymous government whistleblowers of secret law written by the FISA court holding that vast collections of data on all Americans (even those not connected in any way to foreign enemies) amassed by the NSA do not violate the 4th Amendment's warrant requirements. It reported that anyone possibly involved in nuclear proliferation, espionage or cyber-attacks, according to the court, may be considered a legitimate target for warrantless surveillance. Acting like a parallel US Supreme Court, the Court greatly broadened the "special needs" exception to do so. [2]
Text of the Fourth Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. [5]
The New York Times reported that in "more than a dozen classified rulings, the nation's surveillance court has created a secret body of law giving the National Security Agency the power to amass vast collections of data on Americans". [2] The newspaper wrote with respect to the United States Foreign Intelligence Surveillance Court:
In one of the court's most important decisions, the judges have expanded the use in terrorism cases of a legal principle known as the 'special needs' doctrine and carved out an exception to the Fourth Amendment's requirement of a warrant for searches and seizures [...]. The special needs doctrine was originally established in 1989 by the Supreme Court in a ruling allowing the drug testing of railway workers, finding that a minimal intrusion on privacy was justified by the government's need to combat an overriding public danger. Applying that concept more broadly, the FISA judges have ruled that the N.S.A.'s collection and examination of Americans' communications data to track possible terrorists does not run afoul of the Fourth Amendment, the officials said. That legal interpretation is significant, several outside legal experts said, because it uses a relatively narrow area of the law — used to justify airport screenings, for instance, or drunken-driving checkpoints — and applies it much more broadly, in secret, to the wholesale collection of communications in pursuit of terrorism suspects. [2]
Closed hearings and classified proceedings[ edit]Because of the sensitive nature of its business, the court is a "secret court" – its hearings are closed to the public. While records of the proceedings are kept, they also are unavailable to the public, although copies of some records with classified information redacted have been made public. Due to the classified nature of its proceedings, usually only government attorneys are permitted to appear before the court. Because of the nature of the matters heard before it, court 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.
A heavily redacted version of an 2008 appeal by Yahoo of an order issued with respect to NSA's PRISM program had been published for the edification of other potential appellants. The identity of the appellant was declassified in June 2013. [6]
FISA warrants[ edit]Each application for one of these surveillance warrants (called a FISA warrant) is made before an individual judge of the court. 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 FISC, 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, as required by 50 U.S.C. § 1805.
If an application is denied by one judge of the court, the federal government is not allowed to make the same application to a different judge of the court, but may appeal 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 ( In re Sealed Case No. 02-001), 24 years after the founding of the court.
It is also rare for FISA warrant requests to be turned down by the court. During the 25 years from 1979 to 2004, 18,742 warrants were granted, while just four were rejected. Fewer than 200 requests had to be modified before being accepted, almost all of them in 2003 and 2004. The four rejected requests were all from 2003, and all four were partially granted after being submitted for reconsideration by the government. Of the requests that had to be modified, few if any were before the year 2000. During the next eight years, from 2004 to 2012, there were over 15,100 additional warrants granted, with an additional seven being rejected. In all, over the entire 33-year period, the FISA court has granted 33,942 warrants, with only 11 denials – a rejection rate of 0.03% of the total requests. [7]
FISA warrant requests for electronic surveillance (excluding physical search 2009-), modifications and denials [8]Year# Requests
Submitted# Requests
Modified [a]# Requests
DeniedCumulative #
Warrants Issued | 1979–1999 | 12,082 | | 0 | 12,090 | | 1979 | 199 | 0 | 0 | 207 [9] | | 2000 | 1,005 | 1 | 0 | 13,102 | | 2001 | 932 | 2 | 0 | 14,036 | | 2002 | 1,228 | 2 [c] | 0 | 15,264 | | 2003 | 1,724 | 79 | 4 [d] | 16,988 | | 2004 | 1,758 | 94 | 0 | 18,742 | | 2005 | 2,074 | 63 | 0 | 20,814 | | 2006 | 2,181 | 77 | 1 | 22,990 | | 2007 | 2,371 | 86 | 4 | 25,360 | | 2008 | 2,082 | 2 | 1 | 27,443 | | 2009 | 1,329 | 14 | 1 | 28,763 | | 2010 | 1,511 | 14 | 0 | 30,342 | | 2011 | 1,676 | 30 | 0 | 32,087 | | 2012 | 1,789 | 40 | 0 | 33,942 | | TOTALS | 33,949 | | 11 [e] | 33,942 |
^ This column is incomplete; you can help by completing it using [9]. ^ Intervening rows are missing; you can help by adding them using [9]. ^ both modifications later reversed by the United States Foreign Intelligence Surveillance Court of Review, in a case entitled In re Sealed Case No. 02-001. ^ All four were later partially granted, after being submitted for reconsideration by the government. ^ The 2004 partial denials still resulted in warrants, thus accounting for any apparent discrepancy in totals.
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". [10] Whether this rebuke is related to the court starting to require modification of significantly 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 court since 2002. [11] On December 20, 2005, Judge James Robertson resigned his position with the court, apparently in protest of the secret surveillance, [12] and later, in the wake of the Snowden leaks of 2013, criticized the court-sanctioned expansion of the scope of government surveillance and its being allowed to craft a secret body of law. [13] The government's apparent circumvention of the court started prior to the increase in court-ordered modifications to warrant requests.
Criticism[ edit]There has been growing criticism of the court since 9-11. This is partly due to the fact that the court sits ex parte – in other words, in the absence of anyone but the judge and the government present at the hearings. [14] This, combined with the minimal number of requests that are rejected by the court has led experts to characterize it as a rubber stamp (former National Security Agency analyst Russell Tice called it a " kangaroo court with a rubber stamp"). [15] Some requests are modified by the court but ultimately granted, while the percentage of denied requests is statistically negligible (11 denied requests out of around 34,000 granted in 35 years – equivalent to 0.03%). [15] [16] [17] [18]
A 2003 Senate Judiciary Committee "Interim Report on FBI Oversight", sub-titled "FISA Implementation Failures", cited the "unnecessary secrecy" of the FISA Court among its "most important conclusions":
"The secrecy of individual FISA cases is certainly necessary, but this secrecy has been extended to the most basic legal and procedural aspects of the
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