What is the FISA court, and why is it so secretive?
The Foreign Intelligence Surveillance Court was established in when Congress enacted the Foreign Intelligence Surveillance Act (FISA), which is codified, as amended, at 50 U.S.C. ІІ c. The Court sits in Washington D.C., and is composed of eleven federal district court judges who are designated by the Chief Justice of the United States. Mar 09, †Ј The FISA court is a tribunal established in that decides whether to approve wiretaps, data collection and government requests to monitor suspected terrorists and spies. ItТs just blocks away.
By Bill Mears and Halimah Abdullah. What is the FISA court? More Videos Obama limits gov't access to phone data Story highlights A secret court that oversees how the government snoops might soon change The surveillance court is made up of a rotating panel of 11 federal district court judges The court decides whether to approve wiretaps, data collection and other requests Some worry the court rubber stamps the government's requests to snoop.
It may be the most powerful court you have never heard of -- operating out of a bunker-like complex blocks from the Capitol and the White House -- sealed tightly to prevent eavesdropping.
Its a tribunal that is secret or supposed to be. Its structure is largely one-sided and its members are unilaterally chosen by one unelected person. Court officials, naturally, object to that characterization. But concerns remain that without reforms, like President Barack Obama's call for an independent "privacy advocate" to monitor its actions, civil liberties might be at risk.
Bottom line: 5 takeaway messages on Obama's NSA changes. The court is housed in a room in a windowless and secure area of the U. District Court on Constitution Avenue. Government sources say it's a courtroom with a judge's bench, tables for lawyers, and support staff.
Officials won't divulge its exact location in the building. The court is made up of 11 judges who sit for seven-year terms. All are federal district judges who agree to take on the additional duties on a rotating basis. They are appointed by Chief Justice John Roberts, without any supplemental confirmation from the other two branches of government. Roberts has named every member of the current court, as well as a separate three-judge panel to hear appeals known as the Court of Review.
The FISA Court's larger mission is to decide whether to grant certain types of government requests-- wiretapping, data analysis, and other monitoring for "foreign intelligence purposes" of suspected terrorists and spies operating in the United States. The once-secret approval of collecting bits and pieces of information from electronic communications -- called metadata -- comes quarterly from judges at the court.
To collect the how to put music on xbox one, the government has to demonstrate to a judge that it is "relevant" to an international terrorism investigation. There were 1, applications in to the FISA Court for electronic surveillance and physical searches for "foreign intelligence purposes," the Justice Department said.
None were denied, but 40 were modified to some extent. Only one such request was withdrawn by the FBI. Obama announces modest changes to NSA data collection. NSA leaker Edward Snowden last June revealed a secret surveillance court order approving government collection of mass amounts of metadata from telecom giant Verizon and leading Internet companies, including Microsoft, Apple, Google, Yahoo and Facebook.
The metadata orders were shocking, because it confirmed the scope of the NSA's efforts and the court's original mission had greatly expanded.
No longer were FISA judges approving individual surveillance requests-- now they were in essence reinterpreting the Constitution, expanding, say critics, whats a good gift for a female friend limits of privacy and due process.
Some members of Congress worry the surveillance court-- at the urging of the Obama administration-- is interpreting the surveillance law too broadly-- something lawmakers say they did not intend. And because it only hears the government's side, it has been criticized as a body that too easily accedes to a request. Those on the court worry the President's push for a privacy advocate might prove counter-productive and might lead to public "confusion and misunderstanding" of judicial rulings, former surveillance court Judge John Bates wrote in a letter this week to Sen.
Dianne Feinstein, chairman of the Senate Intelligence Committee. Inthe United States was still deeply engaged in the Cold War and foreign spying was the main concern, not terrorism. So Congress created the surveillance court and it began issuing warrants the next year in the wake of a series of intelligence-related scandals earlier that decade and the one before, including the FBI's spying on the Rev.
Martin Luther King Jr. Andrevisions in surveillance laws gave the attorney general and the director of national intelligence greater authority to order "mass acquisition" of electronic traffic, if it is related to a terror or espionage investigation. The administration says amassing a telecommunications company's entire phone records database is relevant to counterterrorism, and something a surveillance court judge can authorize.
The law that created the surveillance court isn't due to be renewed for another four years. NSA and your phone records: What should Obama do?
What the Secretive Court Does and Who the Judges Are
Dec 21, †Ј The FISA court is a highly secretive panel of 11 federal judges whose primary responsibility is to decide whether the U.S. government has enough evidence against foreign powers or individuals believed to be foreign agents to allow for their surveillance by the intelligence community. FISA is an acronym for the Foreign Intelligence Surveillance Act. Jan 17, †Ј The Foreign Intelligence Surveillance Court Ц or FISA Court for short Ц is a panel that critics contend rubber-stamps nearly every National Security Agency request to snoop that it . Sep 22, †Ј FISCR is the acronym for the Foreign Intelligence Surveillance Court of Review. It is a US federal court with the mandate of reviewing denied applications for electronic surveillance warrants (known as FISA warrants). The FISCR, just like the FISC, was established by the FISA Act in It is composed of a panel of three judges.
Senate 's Church Committee. From its opening in until , the court was housed on the sixth floor of the Robert F. Kennedy Department of Justice Building. In , a top-secret order issued by the court, which was later leaked to the media from documents culled by Edward Snowden , required a subsidiary of Verizon to provide a daily, on-going feed of all call detail records Ч including those for domestic calls Ч to the NSA. 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 U. Attorney General determines that an emergency exists, the Attorney General may authorize the emergency employment of electronic surveillance before obtaining the necessary authorization from the FISC, if the Attorney General or their designee notifies a judge of the court at the time of authorization and applies for a warrant as soon as practicable but not more than seven days after authorization of such surveillance, as required by 50 U.
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. Also rare is for FISA warrant requests to be turned down. During the 25 years from to , 18, warrants were granted, while only four were rejected.
Fewer than requests had to be modified before being accepted, almost all of them in and The four rejected requests were all from , and all four were partially granted after being submitted for reconsideration by the government. Of the requests that had to be modified, few were before the year During the next eight years, from to , there were over 15, additional warrants granted, and another seven being rejected.
Over the entire year period, the FISA court granted 33, warrants, with only 12 denials Ч a rejection rate of 0. On May 17, , the court rebuffed Attorney General John Ashcroft , releasing an opinion that alleged that the 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 FBI Director Louis J.
In , the Obama administration secretly won permission from the Foreign Intelligence Surveillance Court to reverse restrictions on the National Security Agency's use of intercepted phone calls and e-mails, permitting the agency to search deliberately for Americans' communications in its massive databases.
But a warrant for each target would thus no longer be required. That means that communications with Americans could be picked up without a court first determining that there is probable cause that the people they were talking to were terrorists, spies or "foreign powers". Both measures were done without public debate or any specific authority from Congress.
Because of the sensitive nature of its business, the court is a "secret court" Ч 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 attorneys licensed to practice in front of the US government 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 a appeal by Yahoo! The identity of the appellant was declassified in June There has been growing criticism of the court since the September 11, attacks. This is partly because the court sits ex parte Ч in other words, in the absence of anyone but the judge and the government present at the hearings.
Walton who wrote in a letter to Senator Patrick J. Leahy: "The annual statistics provided to Congress by the Attorney General These statistics do not reflect the fact that many applications are altered to prior or final submission or even withheld from final submission entirely, often after an indication that a judge would not approve them.
Litt General Counsel of Office of the Director of National Intelligence : "When [the Government] prepares an application for [a section order, it] first submit[s] to the [FISC] what's called a "read copy", which the court staff will review and comment on. And there is an iterative process back and forth between the Government and the [FISC] to take care of those concerns so that at the end of the day, we're confident that we're presenting something that the [FISC] will approve.
That is hardly a rubber stamp. It's rather extensive and serious judicial oversight of this process. 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 FISA, which should not be secret. This unnecessary secrecy contributed to the deficiencies that have hamstrung the implementation of the FISA.
Later in the interview he said Congress should seek to "diversify some of the thinking on the court". A related bias of the court results from what critics such as Julian Sanchez , a scholar at the Cato Institute , have described as the near certainty of the polarization or groupthink of the judges of the court. Since all of the judges are appointed by the same person the Chief Justice of the United States , hear no opposing testimony and feel no pressure from colleagues or the public to moderate their rulings, Sanchez claims that "group polarization is almost a certainty", adding that "there's the real possibility that these judges become more extreme over time, even when they had only a mild bias to begin with".
The court's judges  are appointed solely by the Chief Justice of the United States without confirmation or oversight by the U. There are some reform proposals. Senator Richard Blumenthal from Connecticut proposed that each of the chief judges of the 12 major appeals courts select a district judge for the surveillance court; the chief justice would still pick the review panel that hears rare appeals of the court's decisions, but six other Supreme Court justices would have to sign off.
Another proposal authored by Representative Adam Schiff of California would give the president the power to nominate judges for the court, subject to Senate approval, while Representative Steve Cohen proposed that Congressional leaders pick eight of the court's members.
Stephen Vladeck, a professor at the University of Texas School of Law , has argued that, without having to seek the approval of the court which he has said merely reviews certifications to ensure that they Ч and not the surveillance itself Ч comply with the various statutory requirements , the U. Attorney General and the Director of National Intelligence can engage in sweeping programmatic surveillance for one year at a time. Jameel Jaffer, the ACLU's deputy legal director, said in light of revelations that the government secured telephone records from Verizon and Internet data from some of the largest providers that safeguards that are supposed to be protecting individual privacy are not working.
According to The Guardian , "The broad scope of the court orders, and the nature of the procedures set out in the documents, appear to clash with assurances from President Obama and senior intelligence officials that the NSA could not access Americans' call or email information without warrants". It offers no real safeguards. That's because no court monitors what the NSA is actually doing when it claims to comply with the court-approved procedures. Once the Fisa court puts its approval stamp on the NSA's procedures, there is no external judicial check on which targets end up being selected by the NSA analysts for eavesdropping.
The only time individualized warrants are required is when the NSA is specifically targeting a US citizen or the communications are purely domestic. When it is time for the NSA to obtain Fisa court approval, the agency does not tell the court whose calls and emails it intends to intercept. It instead merely provides the general guidelines which it claims are used by its analysts to determine which individuals they can target, and the Fisa court judge then issues a simple order approving those guidelines.
The court endorses a one-paragraph form order stating that the NSA's process " 'contains all the required elements' and that the revised NSA, FBI and CIA minimization procedures submitted with the amendment 'are consistent with the requirements of [50 U.
Bates which does nothing more than recite the statutory language in approving the NSA's guidelines. Once the NSA has this court approval, it can then target anyone chosen by their analysts, and can even order telecoms and internet companies to turn over to them the emails, chats and calls of those they target.
The Fisa court plays no role whatsoever in reviewing whether the procedures it approved are actually complied with when the NSA starts eavesdropping on calls and reading people's emails. The guidelines submitted by the NSA to the Fisa court demonstrate how much discretion the agency has in choosing who will be targeted. The only oversight for monitoring whether there is abuse comes from the executive branch itself: from the DOJ and Director of National Intelligence, which conduct "periodic reviews At a hearing before the House Intelligence Committee Tuesday afternoon, deputy attorney general James Cole testified that every 30 days, the Fisa court is merely given an "aggregate number" of database searches on US domestic phone records.
But even in such cases, the NSA often ends up intercepting those communications of Americans without individualized warrants, and all of this is left to the discretion of the NSA analysts with no real judicial oversight.
Deputy Attorney General James M. Inglis cited the court's oversight in defending the constitutionality of the NSA's surveillance activities before during a hearing before the House Judiciary Committee in July Representative Jerrold Nadler , challenged Cole's defense of the program's constitutionality, and he said the secrecy in which the court functioned negated the validity of its review. In July , The New York Times published disclosures from anonymous government whistleblowers of secret law written by the 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 warrant requirements of Fourth Amendment to the U.
It reported that anyone suspected of being 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 U. Supreme Court , the court greatly broadened the "special-needs" exception to do so.
The newspaper 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". 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 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.
That legal interpretation is significant, several outside legal experts said, because it uses a relatively narrow area of the law Ч used to justify airport screenings, for instance, or drunken-driving checkpoints Ч and applies it much more broadly, in secret, to the wholesale collection of communications in pursuit of terrorism suspects.
The "special-needs" doctrine is an exemption to the Fourth Amendment's Warrants Clause which commands that "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 and seized".
The U. Supreme Court has recognized an exemption to the Warrants Clause "outside the foreign intelligence context, in so-called 'special-needs' cases. In those cases, the Court excused compliance with the Warrant Clause when the purpose behind the governmental action went beyond routine law enforcement and insisting upon a warrant would materially interfere with the accomplishment of that purpose. See, Vernonia School District 47J v.
Acton , U. Wisconsin , U. Labor Execs. Ass'n , U. Terry v. Ohio , U. Foreign Intelligence Surveillance Court of Review concluded on August 22, , in the case In re Directives [redacted text] Pursuant to Section B of the Foreign Intelligence Surveillance Act , that the "special-needs" doctrine applied by analogy to justify a foreign intelligence exception to the warrant requirement for surveillance undertaken for national security purposes and directed at a foreign power or an agent of a foreign power reasonably believed to be located outside the U.
James Robertson Ч a former judge for the U. District Court for the District of Columbia , who, in , ruled against the Bush administration in the Hamdan v. Rumsfeld case, and also served on the FISC for three years between and Ч said he was "frankly stunned" by the newspaper's report that court rulings had created a new body of law broadening the ability of the NSA to use its surveillance programs to target not only terrorists but suspects in cases involving espionage, cyberattacks and weapons of mass destruction.
Stone, a professor of constitutional law at the University of Chicago , said he was troubled by the idea that the court is creating a significant body of law without hearing from anyone outside the government, forgoing the adversarial system that is a staple of the American justice system.
He said, "That whole notion is missing in this process". The court concluded that mass collection of telephone metadata including the time of phone calls and numbers dialed does not violate the Fourth Amendment as long as the government establishes a valid reason under national security regulations before taking the next step of actually examining the contents of an American's communications. This concept is rooted partly in the special needs doctrine. Congress in the FISA Amendments Act of , even the collection of metadata must be considered "relevant" to a terrorism investigation or other intelligence activities.
The court has indicated that while individual pieces of data may not appear "relevant" to a terrorism investigation, the total picture that the bits of data create may in fact be relevant, according to U. A secret ruling made by the court that redefined the single word "relevant" enabled the NSA to gather phone data on millions of Americans. In classified orders starting in the mids, the court accepted that "relevant" could be broadened to permit an entire database of records on millions of people, in contrast to a more conservative interpretation widely applied in criminal cases, in which only some of those records would likely be allowed.
The history of the word "relevant" is key to understanding that passage. The Supreme Court in said things are "relevant" if there is a "reasonable possibility" that they will produce information related to the subject of the investigation.
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