Many of the reasons these claims are so misleading is demonstrated by the law itself. When the original Fisa law was enacted in 1978, its primary purpose was to ensure that the US government would be barred from ever monitoring the electronic communications of Americans without first obtaining an individualized warrant from the Fisa court, which required evidence showing “probable cause” that the person to be surveilled was an agent of a foreign power or terrorist organization.
That was the law which George Bush, in late 2001, violated, when he secretly authorized eavesdropping on the international calls of Americans without any warrants from that court. Rather than act to punish Bush for those actions, the Congress, on a bipartisan basis in 2008, enacted a new, highly diluted Fisa law – the Fisa Amendments Act of 2008 (FAA) – that legalized much of the Bush warrantless NSA program.
Under the FAA, which was just renewed last December for another five years, no warrants are needed for the NSA to eavesdrop on a wide array of calls, emails and online chats involving US citizens. Individualized warrants are required only when the target of the surveillance is a US person or the call is entirely domestic. But even under the law, no individualized warrant is needed to listen in on the calls or read the emails of Americans when they communicate with a foreign national whom the NSA has targeted for surveillance.
As a result, under the FAA, the NSA frequently eavesdrops on Americans’ calls and reads their emails without any individualized warrants – exactly that which NSA defenders, including Obama, are trying to make Americans believe does not take place. As Yale Law professor Jack Balkin explained back in 2009:
“The Fisa Amendments Act of 2008, effectively gives the President – now President Obama – the authority to run surveillance programs similar in effect to the warrantless surveillance program [secretly implemented by George Bush in late 2001]. That is because New Fisa no longer requires individualized targets in all surveillance programs. Some programs may be ‘vacuum cleaner’ programs that listen to a great many different calls (and read a great many e-mails) without any requirement of a warrant directed at a particular person as long as no US person is directly targeted as the object of the program. . . .
“New Fisa authorizes the creation of surveillance programs directed against foreign persons (or rather, against persons believed to be outside the United States) – which require no individualized suspicion of anyone being a terrorist, or engaging in any criminal activity. These programs may inevitably include many phone calls involving Americans, who may have absolutely no connection to terrorism or to Al Qaeda.”
As the FAA was being enacted in mid-2008, Professor Balkin explained that “Congress is now giving the President the authority to do much of what he was probably doing (illegally) before”.
Most Powerful Court You Have Never Heard Of.
By Bruce Moyer
Long The disclosures by Edward Snowden about the size and scope of the National Security Agency’s surveillance activities, both in the United States and abroad, has prompted a flurry of Congressional proposals aimed at reframing the foreign intelligence- gathering process. While the thrust of these proposals is aimed at the intelligence-gathering process itself, several would also alter the operations of the federal court in Washington that provides judicial oversight of intelligence gathering and, in fact, authorized the con- troversial NSA telephone metadata collection effort disclosed by Snowden.
The court we’re talking about is the Foreign Intelligence Surveillance Court, or FISC. Described by CNN as “the most power- ful court you have never heard of,” the panel plays a significant role in the sensitive balance of foreign intelligence-gathering and civil liberties. Established in 1978 by the Foreign Intelligence Surveillance Act (FISA), the FISC hears applications from the government and decides whether to issue orders approving certain electronic surveil- lance activities for foreign intelligence purposes. Another Article III tribunal co-located in Washington, the Foreign Intelligence Surveillance Court of Review (FISCR), reviews the rulings of the FISA court. Collectively these are referred to as the FISA courts.
Unique Among Federal Courts
The FISC is unique among federal courts in its narrow jurisdiction, the selection of its judges, and the secret conduct of its day-to-day operations. The Chief Justice of the U.S. Supreme Court plays an especially engaged role in the affairs of the court. The FISC’s 11 district court judges and review court’s judges are “designated” by the Chief Justice, foregoing the usual process of presidential appoint- ment and Senate confirmation. Similarly, the Chief Justice designates the chief judge of the FISC and the FISCR. The judges of both courts serve one term of seven years and are not eligible for a second term. Because of the sensitive nature of its docket, the FISC and the Review Court operate largely in secret and in a nonadversarial fash- ion. Since its creation in 1978, the FISC has operated primarily in an ex parte manner with the government as the only party presenting arguments to the court and seeking warrants approving of electronic surveillance, physical searches, the use of a pen register or a trap- and-trace device, or the access to business ecords for foreign intelligence and international terrorism investigations.
The FISC operates out of a secure location in the federal court- house in Washington, D.C. Each week, one of the eleven district court judges that comprise the FISC is on duty in Washington. Most of the FISC’s work is handled by the duty judge with the assistance of a small group of attorneys and clerk’s office personnel who staff the court. On occasion, judges outside of the duty-week rotation handle more complex or time-consuming matters, at the direction of the Presiding Judge.
The secret and nonadversarial nature of the FISC’s proceedings and the revelation of the court’s approval of the NSA telephone meta- data collection effort have spurred several Congressional proposals that would change some of the underlying practices of the FISA courts. The most controversial proposal involves the court’s appoint- ment of a special advocate when the court is considering a novel or significant interpretation of law. Other proposals would establish en banc panels of the FISC and would alter the voting rules of the FISC in an attempt to create a higher bar for the approval of government surveillance activities.
A Special Advocate Before the FISA Courts?
The appointment of a special advocate within the FISA courts has stirred the greatest controversy. The House last year passed legislation (H.R. 3361) giving the FISA courts substantial discretion to determine when to appoint an advocate, as well as decide the nature and scope of the assistance to be provided by the advocate. A broader Senate measure (S. 2685) last year would have more rigidly mandated the appointment of an advocate to make specific arguments involving privacy and civil liberties. The Senate bill stalled at the end of 2014, carrying the debate into 2015 with some urgency. Section 215 of the Patriot Act, which authorizes electronic foreign intelligence surveillance activities, expires on June 1.
Proponents of the appointment of a special advocate argue that the nature of a non-adversarial process prevents the FISA courts from hearing opposing viewpoints on difficult legal issues, especially ones involving privacy and civil liberty interests. The Federal Judiciary is not so sure. In a letter to Congress last year, Judge John Bates, then director of the Administrative Office of the U.S. Courts (and a for- mer FISC judge) embraced the House legislation’s approach, which imparts to the FISA court the discretionary authority to appoint an advocate, a power the court already inherently maintains. Bates criticized the Senate’s approach, which directs the FISC to appoint an advocate in certain kinds of cases. “… [W]e are concerned that insert- ing into FISA court proceedings an advocate with a statutory mandate to make specific arguments would raise substantial legal questions and impede the courts’ work without furthering the interests of privacy or civil liberties,” Bates wrote. Those questions involve separation of powers and judicial independence considerations.
FBA Panel Session on the FISA Courts
These concerns and the broader challenge of balancing national security, privacy, and civil liberties will be spotlighted at the FBA Mid-year Meeting on Saturday morning, March 28, in Arlington, Virginia, when an esteemed panel of judges, lawyers, and academics will debate the pros and cons of altering the FISA courts and their operations. Consult the FBA website for further details.
THE FOREIGN INTELLIGENCE SURVEILLANCE COURT
The Foreign Intelligence Surveillance Court was created by section 103(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(a)). It was originally comprised of seven district judges from seven circuits named by the Chief Justice of the United States to serve a maximum of 7 years.
In 2001, the U.S.A. Patriot Act (section 208) amended the Foreign Intelligence Surveillance Act to increase the number of FIS Court judges from seven to eleven, “of whom no fewer than 3 shall reside within 20 miles of the District of Columbia.” The membership of the Court in 2013 was as follows.
|HOGAN, Thomas F. (Presiding, as of May 19, 2014)||D.D.C.||5/18/2009||5/18/2016|
|BOASBERG, James E.||D.D.C.||5/19/2014||5/18/2021|
|COLLYER, Rosemary M.||D.D.C.||3/8/2013||3/7/2020|
|DEARIE, Raymond J.||E.D. New York||7/2/2012||7/1/2019|
|EAGAN, Claire V.||N.D. Oklahoma||2/13/2013||5/18/2019|
|FELDMAN, Martin L.C.||E.D.Louis.||5/19/2010||5/18/2017|
|JONES, James P. (designated in 2015)||W.D. Virginia||5/19/2015||5/18/2022|
|McLAUGHLIN, Mary A. (term expires in 2015)||E.D. Pa.||5/18/2008||5/18/2015|
|MOSMAN, Michael W.||Oregon||5/04/2013||5/03/2020|
|RUSSELL, Thomas B. (designated in 2015)||W.D. Kentucky||5/19/2015||5/18/2022|
|SAYLOR, F. Dennis||Mass.||5/19/2011||5/18/2018|
|WRIGHT, Susan Webber||E.D. Arkansas||5/18/2009||5/18/2016|
|ZAGEL, James B. (term expires in 2015)||N.D. Ill.||5/18/2008||5/18/2015|
FOREIGN INTELLIGENCE SURVEILLANCE COURT OF REVIEW
The Foreign Intelligence Surveillance Court of Review was created by the Foreign Intelligence Surveillance Act of 1978 to review applications that were denied by the FIS Court. The Court of Review is comprised of three judges, one of whom is designated as the presiding judge, named by the Chief Justice of the United States from the U.S. district or appellate courts. Judges serve a maximum of seven years and are not eligible for redesignation.
|BRYSON, William C. (Presiding)||Federal Circuit||5/19/2011 (became presiding judge 9/1/2013)||5/18/2018|
|CABRANES, José A.||Second Circuit||8/9/2013||5/18/2020|
|TALLMAN, Richard C.||Ninth Circuit||1/27/2014||1/26/2021|
The FISA Court Has Only Denied an NSA Request Once in the Past 5 Years
Only one of 8164 surveillance requests were denied by the court
Did you know Canada has one too.
Canadian secret national security court calls on amicus curiae to address vexing issues
Most Canadians are surprised to discover that we have a secret court, just like the US Foreign Intelligence Surveillance Court, that meets in a bunker in Ottawa, issuing secret warrants to do a range of cloak and dagger activities including wiretapping and installing bugs. But we do. (They are judges designated under the Canadian Security Intelligence Service Act by the Chief Justice of the Federal Court of Canada.)
But one thing that distinguishes Canada from the US in an important way is that designated judges under the CSIS Act have, from time to time, retained “friends of the court” to argue positions in opposition to government requests. It hasn’t happened often but is something that our friends to the south may want to consider as controversy about PRISM and a secret body of evolving case law is being established.
Unopposed applications resulting in secret decisions with significant civil rights and constitutional implications easily leads to the presumption that the system is rigged and intelligence agencies get a free ride. While transparency would call for published decisions and open court, independent lawyers arguing the other side is a step in the right direction.