United States Foreign Intelligence Surveillance Court
The United States Foreign Intelligence Surveillance Court (FISC, also called the FISA Court) is a U.S. federal court established and authorized under the Foreign Intelligence Surveillance Act of 1978 (FISA) to oversee requests for surveillance warrants against foreign spies inside the United States by federal law enforcement and intelligence agencies. Such requests are made most often by the National Security Agency (NSA) and the Federal Bureau of Investigation (FBI). Congress created FISA and its court as a result of the recommendations by the U.S. Senate's Church Committee. Its powers have evolved to the point that it has been called "almost a parallel Supreme Court."
|United States Foreign Intelligence Surveillance Court|
|Chief Judge||Rosemary Collyer|
Since 2009, the court has been relocated to the E. Barrett Prettyman United States Courthouse in Washington, D.C. For roughly thirty years of its history (prior to 2009), it was housed on the sixth floor of the Robert F. Kennedy Department of Justice Building.
In 2013, 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 – including those for domestic calls – 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.S. 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.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.
Also rare is for FISA warrant requests to be turned down. During the 25 years from 1979 to 2004, 18,742 warrants were granted, while only 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 were before the year 2000. During the next eight years, from 2004 to 2012, there were over 15,100 additional warrants granted, and another seven being rejected. Over the entire 33-year period, the FISA court granted 33,942 warrants, with only 12 denials – a rejection rate of 0.03 percent of the total requests. This does not include the number of warrants that were modified by the FISA court. .
- Excludes physical searches
- Two modifications that were 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.
On May 17, 2002, 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. Freeh. Whether this rejection was 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. On December 20, 2005, Judge James Robertson resigned his position with the court, apparently in protest of the secret surveillance, 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. The government's apparent circumvention of the court started prior to the increase in court-ordered modifications to warrant requests.
In 2011, 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. The searches take place under a surveillance program Congress authorized in 2008 under Section 702 of the Foreign Intelligence Surveillance Act. Under that law, the target must be a foreigner "reasonably believed" to be outside the United States, and the court must approve the targeting procedures in an order good for one year. 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." The FISC also extended the length of time that the NSA is allowed to retain intercepted U.S. communications from five years to six years with an extension possible for foreign intelligence or counterintelligence purposes. 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" – 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 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.
There has been growing criticism of the court since the September 11, 2001 attacks. This is partly because the court sits ex parte – in other words, in the absence of anyone but the judge and the government present at the hearings. 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 Russ Tice called it a "kangaroo court with a rubber stamp"). The accusation of being a "rubber stamp" was rejected by FISA Court president Reggie B. Walton who wrote in a letter to Senator Patrick J. Leahy: "The annual statistics provided to Congress by the Attorney General … – frequently cited to in press reports as a suggestion that the Court's approval rate of application is over 99% – reflect only the number of final applications submitted to and acted on by the Court. 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." He added: "There is a rigorous review process of applications submitted by the executive branch, spearheaded initially by five judicial branch lawyers who are national security experts and then by the judges, to ensure that the court’s authorizations comport with what the applicable statutes authorize." In a following letter Walton stated that the government had revamped 24.4% of its requests in the face of court questions and demands in time from July 1, 2013 to September 30, 2013. This figure became available after Walton decided in the summer of 2013 that the FISC would begin keeping its own tally of how Justice Department warrant applications for electronic surveillance fared – and would track for the first time when the government withdrew or resubmitted those applications with changes. 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%). The accusation that the FISC is a "rubber stamp" court was also rejected by Robert S. Litt (General Counsel of Office of the Director of National Intelligence): "When [the Government] prepares an application for [a section 215 order, it] first submit[s] to the [FISC] what's called a "read copy", which the court staff will review and comment on. [A]nd they will almost invariably come back with questions, concerns, problems that they see. 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."
A 2003 Senate Judiciary Committee Interim Report on FBI Oversight in the 107th Congress by the Senate Judiciary Committee: FISA Implementation Failures cited the "unnecessary secrecy" of the 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 FISA, which should not be secret. This unnecessary secrecy contributed to the deficiencies that have hamstrung the implementation of the FISA. Much more information, including all unclassified opinions and operating rules of the FISA Court and Court of Review, should be made public and/or provided to the Congress.
Allegations of biasEdit
In a July 2013 interview, Senator and privacy advocate Ron Wyden described the FISC warrant process as "the most one-sided legal process in the United States". "I don't know of any other legal system or court that really doesn't highlight anything except one point of view", he said. Later in the interview he said Congress should seek to "diversify some of the thinking on the court".
Elizabeth Gotein, a co-director of the Liberty and National Security Program of the Brennan Center for Justice at the New York University School of Law, has criticized the court as being too compromised to be an impartial tribunal that oversees the work of the NSA and other U.S. intelligence activities. Since the court meets in secret, hears only the arguments of the government prior to deciding a case, and its rulings cannot be appealed or even reviewed by the public, she has argued that: "Like any other group that meets in secret behind closed doors with only one constituency appearing before them, they're subject to capture and bias." 
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), as of 2013 nearly all currently serving judges are of the same political party (the Republican Party), hear no opposing testimony and feel no pressure from colleagues or the public to moderate their rulings, group polarization is almost a certainty. "There's the real possibility that these judges become more extreme over time, even when they had only a mild bias to begin with", Sanchez said.
The court's judges are appointed solely by the Chief Justice of the United States without confirmation or oversight by the U.S. Congress. This gives the chief justice the ability to appoint like-minded judges and create a court without diversity. "The judges are hand-picked by someone who, through his votes on the Supreme Court, we have come to learn has a particular view on civil liberties and law enforcement", Theodore Ruger, a professor at the University of Pennsylvania Law School, said with respect to Chief Justice John G. Roberts. "The way the FISA is set up, it gives him unchecked authority to put judges on the court who feel the same way he does." And Stephen Vladeck, a law professor at the University of Texas School of Law, added, "Since FISA was enacted in 1978, we've had three chief justices, and they have all been conservative Republicans, so I think one can worry that there is insufficient diversity." Since May 2014, however, four of the five judges appointed by Chief Justice Roberts to the FISA Court were appointed to their prior federal court positions by Presidents Bill Clinton and Barack Obama.
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.
Judicial and public oversightEdit
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 – and not the surveillance itself – comply with the various statutory requirements), the U.S. Attorney General and the Director of National Intelligence can engage in sweeping programmatic surveillance for one year at a time. There are procedures used by the NSA to target non-U.S. persons and procedures used by the NSA to minimize data collection from U.S. persons. These court-approved policies allow the NSA to do the following:
- keep data that could potentially contain details of U.S. persons for up to five years;
- retain and make use of "inadvertently acquired" domestic communications if they contain usable intelligence, information on criminal activity, threat of harm to people or property, are encrypted, or are believed to contain any information relevant to cybersecurity;
- preserve "foreign intelligence information" contained within attorney–client communications; and
- access the content of communications gathered from "U.S. based machine[s]" or phone numbers in order to establish if targets are located in the U.S., for the purposes of ceasing further surveillance.
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. Elizabeth Goitein, co-director of the Liberty and National Security Program at the Brennan Center for Justice in New York, wrote in the Wall Street Journal that when courts make mistakes, the losing party has the right to appeal and the erroneous decision is reversed. "That process cannot happen when a secret court considers a case with only one party before it."
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". Glenn Greenwald, who published details of the PRISM surveillance program, explained:
that this entire process is a fig leaf, "oversight" in name only. 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.S.C. § 1881a(e)] and with the fourth amendment to the Constitution of the United States'". As but one typical example, The Guardian has obtained an August 19, 2010, Fisa court approval from Judge John D. 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 … to evaluate the implementation of the procedure." 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. … The decisions about who has their emails and telephone calls intercepted by the NSA is made by the NSA itself, not by the Fisa court, except where the NSA itself concludes the person is a US citizen and/or the communication is exclusively domestic. 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. Cole and NSA Deputy Director John C. 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 2013. 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. "The fact that a secret court unaccountable to public knowledge of what it's doing … may join you in misusing or abusing the statutes is of no comfort whatsoever", Nadler said. Orin Kerr, a law professor at George Washington University, said the secrecy that comes along with national security makes it difficult to evaluate how the administration carries out the wide authority Congress has given it. "FISA court judges hear all of this and they think it’s legal," Kerr said. "What we really don't know, though, are what the FISA court’s opinions say."
In July 2013, 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.S. Constitution. 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.S. 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".[a] It also wrote, with respect to the 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.
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.S. 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, 515 U.S. 646, 653 (1995) (upholding drug testing of highschool athletes and explaining that the exception to the warrant requirement applied "when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement[s] impracticable (quoting Griffin v. Wisconsin, 483 U.S. 868, 873 (1987))); Skinner v. Ry. Labor Execs. Ass'n, 489 U.S . 602, 620 (1989) (upholding regulations instituting drug and alcohol testing of railroad workers for safety reasons); cf. Terry v. Ohio, 392 U.S . 1, 23-24 (1968) (upholding pat-frisk for weapons to protect officer safety during investigatory stop)". The U.S. Foreign Intelligence Surveillance Court of Review concluded on August 22, 2008, in the case In re Directives [redacted text] Pursuant to Section 105B 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.S.
James Robertson – a former judge for the U.S. District Court for the District of Columbia, who, in 2004, ruled against the Bush administration in the Hamdan v. Rumsfeld case, and also served on the FISC for three years between 2002 and 2005 – 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. Geoffrey R. 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. "The basic idea is that it's O.K. to create this huge pond of data", an unnamed U.S. official said, "but you have to establish a reason to stick your pole in the water and start fishing". Under the new procedures passed by the U.S. Congress in the FISA Amendments Act of 2008, 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.S. officials with knowledge of the decisions.
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 mid-2000s, 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. Under the Patriot Act, the Federal Bureau of Investigation can require businesses to hand over "tangible things", including "records", as long as the FBI shows it is reasonable to believe the things are "relevant to an authorized investigation" into international terrorism or foreign intelligence activities. The history of the word "relevant" is key to understanding that passage. The Supreme Court in 1991 said things are "relevant" if there is a "reasonable possibility" that they will produce information related to the subject of the investigation. In criminal cases, courts previously have found that very large sets of information did not meet the relevance standard because significant portions – innocent people's information – would not be pertinent. But the court has developed separate precedents, centered on the idea that investigations to prevent national-security threats are different from ordinary criminal cases. The court's rulings on such matters are classified and almost impossible to challenge because of the secret nature of the proceedings. According to the court, the special nature of national-security and terrorism-prevention cases means "relevant" can have a broader meaning for those investigations, say people familiar with the rulings.
People familiar with the system that uses phone records in investigations have said that the court's novel legal theories allow the system to include bulk phone records, as long as there are privacy safeguards to limit searches. NSA analysts may query the database only "when there is a reasonable suspicion, based on specific facts, that the particular basis for the query is associated with a foreign terrorist organization", according to Director of National Intelligence James Clapper. The NSA database includes data about people's phone calls – numbers dialed, how long a call lasted – but not the actual conversations. According to Supreme Court rulings, a phone call's content is covered by the Constitution's Fourth Amendment, which restricts unreasonable searches, but the other types of data are not.
"Relevant" has long been a broad standard, but the way the court is interpreting it, to mean, in effect, "everything", is new, said Mark Eckenwiler, a lawyer who until December 2012 was the Justice Department's primary authority on federal criminal surveillance law. "I think it's a stretch" of previous federal legal interpretations, said Eckenwiler. If a federal attorney "served a grand-jury subpoena for such a broad class of records in a criminal investigation, he or she would be laughed out of court". Given the traditional legal definition of relevant, Timothy Edgar, a former top privacy lawyer at the Office of the Director of National Intelligence and the National Security Council in the Bush and Obama administrations, noted it is "a fair point" to say that someone reading the law might believe it refers to "individualized requests" or "requests in small batches, rather than in bulk database form". From that standpoint, Edgar said, the reinterpretation of relevant amounts to "secret law".
2013 NSA controversyEdit
In June 2013, a copy of a top-secret warrant, issued by the court on April 25, 2013, was leaked to London's The Guardian newspaper by NSA contractor Edward Snowden. That warrant orders Verizon Business Network Services to provide a daily feed to the NSA containing "telephony metadata" – comprehensive call detail records, including location data – about all calls in its system, including those that occur "wholly within the United States, including local telephone calls." The Obama administration published on July 31, 2013 a FISA Court ruling supporting an earlier order requiring a Verizon subsidiary to turn over all of its customers' phone logs for a three-month period, with rules that must be followed when accessing the data.
The document leaked to The Guardian acted as a "smoking gun" and sparked a public outcry of criticism and complaints that the court exceeded its authority and violated the Fourth Amendment by issuing general warrants. The Washington Post then reported that it knew of other orders, and that the court had been issuing such orders, to all telecommunication companies, every three months since May 24, 2006.
Since the telephone metadata program was revealed, the intelligence community, some members of Congress, and the Obama administration have defended its legality and use. Most of these defenses involve the 1979 Supreme Court decision Smith v. Maryland which established that people do not have a "reasonable expectation" of privacy for electronic metadata held by third parties like a cellphone provider. That data is not considered "content", theoretically giving law enforcement more flexibility in collecting it.
On July 19, 2013, the court renewed the permission for the NSA to collect Verizon customer records en masse. The U.S. government was relying on a part of American case law known as the "third-party doctrine". This notion said that when a person has voluntarily disclosed information to a third party — in this case, the telephony metadata — the customer no longer has a reasonable expectation of privacy over the numbers dialed nor their duration. Therefore, this doctrine argued, such metadata can be accessed by law enforcement with essentially no problem. The content of communications are, however, subject to the Fourth Amendment. The Foreign Intelligence Surveillance Court held in October 2011, citing multiple Supreme Court precedents, that the Fourth Amendment prohibition against unreasonable searches and seizures applies to the contents of all communications, whatever the means, because "a person's private communications are akin to personal papers."
Former FISC judge Colleen Kollar-Kotelly, who provided the legal foundation for the NSA amassing a database of all Americans' phone records, told associates in the summer of 2013 that she wanted her legal argument out. Rulings for the plaintiff in cases brought by the ACLU on September 10 and 12, 2013, prompted James Clapper to concede that the government had overreached in its covert surveillance under part 215 of FISA and that the Act would likely be amended to reflect Congressional concern.
The American Civil Liberties Union, a customer of Verizon, asked on November 22, 2013 a federal district court in Lower Manhattan, New York to end the NSA phone call data collection program. The ACLU argued that the program violated the U.S. Constitution's guarantees of privacy and information as well as exceeding the scope of its authorizing legislation, Section 215 of the Patriot Act. The U.S. government countered that the program is constitutional and that Congress was fully informed when it authorized and reauthorized Section 215. Moreover, a government lawyer said, the ACLU has no standing to bring the case because it cannot prove that its members have been harmed by the NSA's use of the data.
2016 presidential election controversyEdit
In November 2016, Louise Mensch reported on the news website, Heat Street, that, after an initial June 2016 FBI request was denied, the FISA court had granted a more narrowly-focused October request from the FBI "to examine the activities of 'U.S. persons' in Donald Trump’s campaign with ties to Russia". On 12 January 2017, BBC journalist Paul Wood reported that, in response to an April 2016 tip from a foreign intelligence agency to the CIA about "money from the Kremlin going into the US presidential campaign", a joint taskforce had been established including representatives of the FBI, the Department of the Treasury, the Department of Justice, the CIA, the Office of the Director of National Intelligence and the National Security Agency; and in June 2016 lawyers from the Department of Justice had applied to the FISA court for "permission to intercept the electronic records from two Russian banks." According to Wood, this application was rejected, as was a more narrowly focussed request in July, and the order was finally granted by a different FISA judge on 15 October, three weeks before the presidential election. On January 19 the New York Times reported that one of its sources had claimed "intelligence reports based on some of the wiretapped communications had been provided to the White House."
On 2 March 2017 broadcaster Mark Levin said on his syndicated evening radio program, "We have a prior administration - Barack Obama and his surrogates who were supporting Hillary Clinton and her party, the Democratic Party - who were using the instrumentalities of the federal government - intelligence activities - to surveil members of the Trump campaign and to put that information out in the public" and asked, "Were the president of the United States - the now-president of the United States, Donald Trump - were his phone calls recorded? ... How many phone calls by Donald Trump - if any - have been intercepted by the Obama administration and recorded by the Obama administration?" Levin claimed that Obama had been involved in a "silent coup" against the Trump campaign using "police state" tactics during the election campaign. The next day, Joel Pollak writing in Breitbart, summarized and expanded on Levin's argument. He repeated Levin's claim that the Obama administration had initiated the FISA court requests but did not touch on the question of whether Trump's phone had been tapped.
On the following morning, March 4, 2017, President Trump sent various Twitter messages claiming Barack Obama had bugged his phones during the "very sacred election process". Trump charged that Obama was behind the 2016 FISA court order requests, likened the situation to 1950s McCarthyism and the 1970s Watergate scandal and called his predecessor a "Bad (or sick) guy!" Obama spokesperson Kevin Lewis and various Obama surrogates including Valerie Jarrett subsequently denied that President Obama or the Obama White House initiated the FISA court order requests.
On 13 March, the Senate Intelligence Committee had demanded that the Trump administration provide evidence to support the US president’s claim, and on 16 March the committee reported that they had seen no evidence to support Trump's accusation that the Obama administration tapped his phones during the 2016 presidential campaign.
On Fox News on 14 March, commentator Andrew Napolitano said, "Three intelligence sources have informed Fox News that President Obama went outside the chain of command. ... He used GCHQ. What is that? It's the initials for the British intelligence spying agency. Simply by saying to them, 'The president needs transcripts of conversations involving candidate Trump's conversations' he's able to get it and there's no American fingerprints on this." Two days later, on 16 March, White House press spokesperson, Sean Spicer, read this claim to the press. A GCHQ spokesman responded: "Recent allegations made by media commentator Judge Andrew Napolitano about GCHQ being asked to conduct 'wiretapping' against the then president elect are nonsense. They are utterly ridiculous and should be ignored." On 17 March, the US made a formal apology to Britain for the accusation.
On April 11th, the Washington Post reported that the FBI had been granted a FISA warrant in the summer of 2016 to monitor then Trump adviser Carter Page. According to the report, "The FBI and the Justice Department obtained the warrant targeting Carter Page’s communications after convincing a Foreign Intelligence Surveillance Court judge that there was probable cause to believe Page was acting as an agent of a foreign power, in this case Russia, according to the officials." The report also states that the warrant has been renewed multiple times since its first issue.
When the court was founded, it was composed of seven federal district 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 Court's judges live 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 FISA court.
As of 2017, Chief Justice John Roberts has appointed all of the current judges, four of whom were nominated to their District Court judgeships by a Democratic President.
(as of 19 May 2016[update])
|Judge||Judicial district||Date appointed||Term expiry||Reference|
|Collyer, RosemaryRosemary Collyer||District of Columbia||March 8, 2013||March 7, 2020|||
|May 19, 2016
|Boasberg, JebJeb Boasberg||District of Columbia||May 19, 2014||May 18, 2021|||
|Contreras, RudolphRudolph Contreras||District of Columbia||May 19, 2016||May 18, 2023|||
|Conway, AnneAnne Conway||Middle District of Florida||May 19, 2016||May 18, 2023|||
|Dearie, RaymondRaymond Dearie||Eastern District of New York||July 2, 2012||July 1, 2023|||
|Eagan, ClaireClaire Eagan||Northern District of Oklahoma||February 13, 2013||May 18, 2019|||
|Feldman, MartinMartin Feldman||Eastern District of Louisiana||May 19, 2010||May 18, 2017|||
|Jones, JamesJames Jones||Western District of Virginia||May 19, 2015||May 18, 2022|||
|Mosman, MichaelMichael Mosman||District of Oregon||May 4, 2013||May 3, 2020|||
|Russell, ThomasThomas Russell||Western District of Kentucky||May 19, 2015||May 18, 2022|||
|Saylor, DennisDennis Saylor||District of Massachusetts||May 19, 2011||May 18, 2018|||
|Judge||Judicial district||Date appointed||Term expiry||Ref|
|Aronovitz, SidneySidney Aronovitz||Southern District of Florida||June 8, 1989||May 18, 1992|||
|Baker, HaroldHarold Baker||Central District of Illinois||May 19, 1998||May 18, 2005|||
|Bates, JohnJohn Bates||District of Columbia||February 22, 2006||February 21, 2013|||
|May 19, 2009
|Benson, DeeDee Benson||District of Utah||April 8, 2004||April 7, 2011|||
|Bonsal, DudleyDudley Bonsal||Southern District of New York||December 2, 1981||May 18, 1984|||
|Broomfield, RobertRobert Broomfield||District of Arizona||October 1, 2002||May 18, 2009|||
|Brotman, StanleyStanley Brotman||District of New Jersey||July 17, 1997||May 18, 2004|||
|Bryan, AlbertAlbert Bryan||Eastern District of Virginia||January 1, 1979||January 1, 1986|||
|Cacheris, JamesJames Cacheris||Eastern District of Virginia||September 10, 1993||May 18, 2000|||
|Carr, JamesJames Carr||Northern District of Ohio||May 19, 2002||May 18, 2008|||
|Carroll, EarlEarl Carroll||District of Arizona||February 2, 1993||May 18, 1999|||
|Coffman, JenniferJennifer Coffman||Eastern District of Kentucky||May 19, 2011||January 8, 2013|||
|Conway, JohnJohn Conway||District of New Mexico||May 19, 2002||October 30, 2003|||
|Cyr, ConradConrad Cyr||District of Maine||May 19, 1987||November 20, 1989|||
|Daugherty, FrederickFrederick Daugherty||Northern District of Oklahoma||May 19, 1981||May 18, 1988|||
|Davis, MichaelMichael Davis||District of Minnesota||May 19, 1999||May 18, 2006|||
|Devitt, EdwardEdward Devitt||District of Minnesota||January 11, 1985||November 10, 1992|||
|Freedman, FrankFrank Freedman||District of Massachusetts||May 30, 1990||May 18, 1994|||
|Gorton, NathanielNathaniel Gorton||District of Massachusetts||May 19, 2001||May 18, 2008|||
|Green, JoyceJoyce Green||District of Columbia||May 19, 1988||May 18, 1995|||
|May 19, 1990
|Hart, GeorgeGeorge Hart||District of Columbia||May 19, 1979
|May 18, 1982|||
|Hilton, ClaudeClaude Hilton||Eastern District of Virginia||May 19, 2000||May 18, 2007|||
|Hogan, ThomasThomas Hogan||District of Columbia||May 19, 2009||May 18, 2016|||
|May 19, 2014
|Howard, MalcolmMalcolm Howard||Eastern District of North Carolina||May 19, 2005||January 8, 2012|||
|Kazen, GeorgeGeorge Kazen||Southern District of Texas||July 15, 2003||May 18, 2010|||
|Keenan, JohnJohn Keenan||Southern District of New York||July 24, 1994||May 18, 2001|||
|Kollar-Kotelly, ColleenColleen Kollar-Kotelly||District of Columbia||May 19, 2002
|May 18, 2009|||
|Lacey, FrederickFrederick Lacey||District of New Jersey||May 19, 1979||May 18, 1985|||
|Lamberth, RoyceRoyce Lamberth||District of Columbia||May 19, 1995
|May 18, 2002|||
|MacBride, ThomasThomas MacBride||Eastern District of California||May 19, 1979||May 18, 1980|||
|MacMahon, LloydLloyd MacMahon||Southern District of New York||July 5, 1985||April 8, 1989|||
|McGarr, FrankFrank McGarr||Northern District of Illinois||May 19, 1979||May 18, 1983|||
|McLaughlin, MaryMary McLaughlin||Eastern District of Pennsylvania||May 19, 2008||May 18, 2015|||
|Meredith, JamesJames Meredith||Eastern District of Missouri||May 19, 1979||May 18, 1981|||
|Miles, WendellWendell Miles||Western District of Michigan||September 21, 1989||May 18, 1996|||
|Murray, HerbertHerbert Murray||District of Maryland||May 19, 1986||May 18, 1993|||
|Noland, JamesJames Noland||Southern District of Indiana||May 19, 1983||May 18, 1990|||
|May 19, 1988
|O'Kelley, WilliamWilliam O'Kelley||Northern District of Georgia||May 19, 1980||May 18, 1987|||
|Pierce, LawrenceLawrence Pierce||District of Columbia||May 19, 1979||January 1, 1981|||
|Robertson, JamesJames Robertson||District of Columbia||May 19, 2002||December 19, 2008|||
|Schwartz, CharlesCharles Schwartz||Eastern District of Louisiana||August 5, 1992||May 18, 1999|||
|Scullin, FrederickFrederick Scullin||Northern District of New York||May 19, 2004||January 8, 2011|||
|Smith, JohnJohn Smith||District of Columbia||May 19, 1982
|May 18, 1988|||
|Stafford, WilliamWilliam Stafford||Northern District of Florida||May 19, 1996||May 18, 2003|||
|Thompson, RalphRalph Thompson||Western District of Oklahoma||June 11, 1990||May 18, 1997|||
|Vinson, RogerRoger Vinson||Northern District of Florida||May 4, 2006||May 3, 2013|||
|Walton, ReggieReggie Walton||District of Columbia||May 19, 2007||May 18, 2014|||
|February 22, 2013
|Webber Wright, SusanSusan Webber Wright||Eastern District of Arkansas||May 19, 2009||May 18, 2016|||
|Zagel, JamesJames Zagel||Northern District of Illinois||May 19, 2008||May 18, 2015|||
- The phrase "secret law written by the court" is a little misleading, because the distinction between "creating" a body of law rather than "writing" is important, since courts do not have the authority to write law, even if the end result is very close to the same.
- Cohen, David B.; Wells, John Wilson (2004). American National Security and Civil Liberties in an Era of Terrorism. New York City: Palgrave Macmillan. p. 34. ISBN 978-1-403-96200-3.
- Lichtblau, Eric (July 6, 2013). "In Secret, Court Vastly Broadens Powers of N.S.A.". The New York Times. Retrieved July 9, 2013.
Unlike the Supreme Court, the FISA court hears from only one side in the case – the government – and its findings are almost never made public.
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- (subscription required) Evan, Perez (June 9, 2013). "Secret Court's Oversight Gets Scrutiny". The Wall Street Journal. Retrieved June 20, 2013.
- Harwood, Matthew. "The Terrifying Surveillance Case of Brandon Mayfield | Al Jazeera America." The Terrifying Surveillance Case of Brandon Mayfield | Al Jazeera America. N.p., February 8, 2014. Weborn December 2, 2014. http://america.aljazeera.com/opinions/2014/2/the-terrifying-surveillancecaseofbrandonmayfield.html
- Staff (May 4, 2012). "Foreign Intelligence Surveillance Act Court Orders 1979–2014". Electronic Privacy Information Center. Retrieved July 27, 2015.
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Only one of the 11 members is a Democrat.
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- Staff (June 20, 2013). "Procedures Used by NSA to Target Non-US Persons: Exhibit A – Full Document – Top-Secret Documents Show Fisa Judges Have Signed Off on Broad Orders Allowing the NSA to Make Use of Information 'Inadvertently' Collected from Domestic US Communications Without a Warrant – Revealed: The Secret Rules That Allow NSA to Use US Data Without a Warrant". The Guardian. Retrieved July 13, 2013.
- Staff (June 20, 2013). "Procedures Used by NSA to Minimize Data Collection from US Persons: Exhibit B – Full Document – The Documents Detail the Procedures the NSA Is Required to Follow to Target 'Non-US Persons' under Its Foreign Intelligence Powers – And What the Agency Does to Minimize Data Collected on US Citizens and Residents – Revealed: The Secret Rules That Allow NSA to Use US Data Without a Warrant". The Guardian. Retrieved July 13, 2013.
- Greenwald, Glenn; Ball, James (June 20, 2013). "The Top Secret Rules That Allow NSA to Use US Data Without a Warrant – Fisa Court Submissions Show Broad Scope of Procedures Governing NSA's Surveillance of Americans' Communication – Document One: Procedures Used by NSA to Target Non-US Persons – Document Two: Procedures Used by NSA to Minimise Data Collected from US Persons". The Guardian. Retrieved July 13, 2013.
- Ellen Nakashima, Barton Gellman & Greg Miller (June 21, 2013). "New documents reveal parameters of NSA’s secret surveillance programs". The Washington Post. Retrieved February 13, 2014.
- Greenwald, Glenn (June 18, 2013). "Fisa Court Oversight: A Look Inside a Secret and Empty Process – Obama and Other NSA Defenders Insist There Are Robust Limitations on Surveillance But the Documents Show Otherwise". The Guardian. Retrieved July 13, 2013.
- Watkins, Aiy (July 17, 2013). "Skeptical Congress Turns Its Spycam on NSA Surveillance". McClatchy Washington Bureau. Retrieved July 18, 2013.
- Selya, Bruce M. (August 22, 2008). "United States Foreign Intelligence Surveillance Court of Review Case No. 08-01 In Re Directives [redacted text] Pursuant to Section 105B of the Foreign Intelligence Surveillance Act" (PDF). U.S. Foreign Intelligence Surveillance Court of Review (via the Federation of American Scientists). Retrieved July 15, 2013.
- Risen, James; Lichtblau, Eric (January 15, 2009). "Court Affirms Wiretapping Without Warrants". The New York Times. Retrieved January 16, 2009.
- (subscription required) Perez, Evan (January 16, 2009). "Court Backs U.S. Wiretapping". The Wall Street Journal. Retrieved January 16, 2009.
- Wilber, Del Quentin; Smith, R. Jeffrey (January 16, 2009). "Intelligence Court Releases Ruling in Favor of Warrantless Wiretapping". The Washington Post. Retrieved July 15, 2013.
- Braun, Stephan (July 9, 2013). "Former Judge Admits Flaws in Secret Court". Associated Press (via ABC News). Retrieved July 10, 2013.
- (subscription required) Valentino-Devries, Jennifer; Gorman, Siobhan (July 8, 2013). "Secret Court's Redefinition of 'Relevant' Empowered Vast NSA Data-Gathering". The Wall Street Journal. Retrieved July 14, 2013.
- Greenwald, Glenn (June 5, 2013). "NSA Collecting Phone Records of Millions of Verizon Customers Daily – Exclusive: Top Secret Court Order Requiring Verizon to Hand Over All Call Data Shows Scale of Domestic Surveillance under Obama". The Guardian. Retrieved July 12, 2013.
- Greenwald, Glenn; Ackerman, Spencer (June 27, 2013). "NSA Collected US Email Records in Bulk for More Than Two Years under Obama – Secret Program Launched by Bush Continued 'Until 2011' – Fisa Court Renewed Collection Order Every 90 Days – Current NSA Programs Still Mine US Internet Metadata". The Guardian. Retrieved July 10, 2013.
- Greenwald, Glenn; Ackerman, Spencer (June 27, 2013). "How the NSA Is Still Harvesting Your Online Data – Files Show Vast Scale of Current NSA Metadata Programs, with One Stream Alone Celebrating 'One Trillion Records Processed'". The Guardian. Retrieved July 10, 2013.
- (registration required) Savage, Charlie; Wyatt, Edward; Baker, Peter (June 6, 2013). "U.S. Confirms That It Gathers Online Data Overseas". The New York Times. Retrieved July 10, 2013.
- Nakashima, Ellen (June 6, 2013). "Verizon Providing All Call Records to U.S. under Court Order". The Washington Post. Retrieved July 10, 2013.
- Secondary Order, July 19, 2013
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