What is the FISA Court and why is it used?
Probably one of the most secretive areas in the US Government has to do with national security, intelligence and intelligence gathering. Most Americans (including most lawyers) did not even know about the Foreign Intelligence Surveillance Court (called the FISA Court) until the recent news items about Edward Snowden and the leaks regarding the National Security Agency. But the FISA court has been around since Congress established it in 1978 as a special court and authorized the Chief Justice of the United States to designate seven federal district court judges to review applications for warrants related to national security investigations.
How does the FISA Court operate?
FISA Court Judges serve for staggered, non-renewable terms of no more than seven years, and until 2001 were drawn from different judicial circuits. The provisions for the court were part of the Foreign Intelligence Surveillance Act (92 Stat. 1783), which required the government, before it commenced certain kinds of intelligence gathering operations within the United States, to obtain a judicial warrant similar to that required in criminal investigations. The legislation was in response to a report of the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities (the “Church Committee”), which detailed allegations that the executive branch abused its authority to conduct domestic electronic surveillance in the interest of national security. Congress also was responding to the Supreme Court’s suggestion in a 1972 case that under the Fourth Amendment some kind of judicial warrant might be required to conduct national security related investigations.
Warrant applications under FISA 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 U.S. citizen or resident alien, that the target may be involved in the commission of a crime.
The judges of the Foreign Intelligence Surveillance Court travel to Washington, D.C., to hear warrant applications on a rotating basis. To ensure that the court can convene on short notice, at least one of the judges is required to be a member of the U.S. District Court for the District of Columbia.
There is an appeals court, 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. 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 no occasion to meet until 2002. The USA Patriot Act of 2001 (115 Stat. 272) expanded the time periods for which the Foreign Intelligence Surveillance Court can authorize surveillance and increased the number of judges serving the court from seven to eleven. The eleven judges must be drawn from at least seven judicial circuits, and no fewer than three are to reside within twenty miles of the District of Columbia.
The Good, The Bad and The Ugly Regarding FISA
The complaint that most Americans have is that the FISA court operated with no oversight and unchecked until someone like Edward Snowden lifted the veil of secrecy and suddenly all the secrets are exposed. Most people agree that there are some things that it would be dangerous for the general public to know – both for national security and personal security reasons. However, to have such a huge machine operating under the cloak of national security with no checks and balances except by another organization created under the same laws and for the same purposes leaves most Americans frightened for their personal privacy.
The argument that “if you are not doing anything wrong don’t worry about it” is a slippery slope to giving up our constitutional right to privacy. The Founding Fathers believed the right to privacy paramount and deserving of constitutional protections. Privacy is one of the most important rights we have as American citizens and our government must understand that American citizens will not sit idly by and allow that right to be infringed on.
Constitutional rights are paramount and must be protected at all costs. If you are the focus of a governmental investigation or probe, you must have legal protection to make sure that all your rights are being safeguarded from governmental abuses. If you are ever in the position that you are concerned for your rights, you should have a criminal law specialist by your side. The law firm of Lewis & Dickstein, P.L.L.C. has a combination of more than fifty years of experience in criminal defense at both the state and federal levels. Please call our office with any questions or concerns by using the Request for Information