Inside America’s Secret Court
by Patrick S. Poole
Deputy Director, Center for Technology Policy

The 10 Commandments contain 297 words. The Bill of Rights is stated
in 463 words. Lincon's Gettysburg Address contains 266 words.
A recent federal directive to regulate the price of
cabbage contains 26,911 words.
The Atlanta Journal

Introduction

In a highly restricted room inside the Department of Justice Building in Washington D.C. resides a federal court that meets in complete secrecy. Even though the rulings this secret court issues may result in criminal charges, convictions and prison sentences for US citizens, their writs and rulings are permanently sealed from review by those accused of crimes and from any substantive civilian review. This is the Foreign Intelligence Surveillance Court (FISC), which considers surveillance and physical search orders from the Department of Justice and US intelligence agencies. During the 20-year tenure of the FISC the court has received over 10,000 applications for covert surveillance and physical searches. To date, not a single application has been denied.

The Foreign Intelligence Surveillance Act (FISA)<1> was passed in 1978, during the days of increased terrorist activity against American citizens around the world. The Cold War and American involvement in the Middle East raised fears both about increased spying on US government, military and business facilities and personnel and about terrorists planning attacks in the US and against Americans overseas. In this atmosphere, federal law enforcement and intelligence administrators requested Congress to increase surveillance powers to combat these growing trends. The FISA statute was also a regulative response to the allegations of domestic spying by federal law enforcement and intelligence agencies during the 1960s and 70s.

However, with the FISA legislation passed, the process was cloaked in absolute secrecy. While few Americans are even aware of the court’s existence, the FISC routinely hears applications for surveillance and physical searches from federal law enforcement and intelligence agencies. The FISA court issues more surveillance and physical search orders than the entire federal judiciary combined.

Many constitutional scholars and civil liberty advocates note that the overly broad powers of the FISA statute and court authority are in direct violation of the Fourth Amendment protections against unreasonable searches and general warrants. With such a powerful weapon against citizens’ Constitutional liberties, many opponents of the court argue that Congress should conduct extensive oversight of the court. But congressional oversight of the FISA court is virtually non-existent.

The only information required by FISA to be provided to congressional oversight committees is the number of surveillance orders approved each calendar year and brief semi-annual reports. The entire 1997 report on the FISC’s activity totaled two paragraphs. But what those brief annual reports do chronicle is the exponential rate of growth of surveillance orders issued by the FISC.

Recent criminal cases proceeding from evidence gathered by FISA surveillance orders have raised many questions regarding the constitutionality of FISA searches and surveillance and the assumption of enormous powers by federal law enforcement and intelligence agencies. Defense attorneys for those charged for crimes with evidence gathered under a FISA order maintain that the FISA court stands as a “court of last resort” for zealous prosecutors unable to obtain a criminal indictment from other federal courts. Some of the orders approved by the FISC have proven to be government “fishing expeditions” aimed at circumventing citizen’s Fourth Amendment protections against unwarranted searches.


Origins of the Court

With the collapse of the Nixon Administration following the Watergate scandal, the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities (otherwise known as the Church Committee) discovered that the federal government had been engaged in widespread domestic surveillance for several decades. In response, several members of Congress set about to devise a plan to limit the surveillance power of federal law enforcement and intelligence agencies. In the wake of the subsequent public outrage and out of fear warrantless surveillance would be outlawed altogether, President Ford supported the FISA bill to limit the “inherent authority” of the President to conduct warrantless surveillance in the interest of national security.

Prior to that time, most presidents claimed to have implicit constitutional authority to approve warrantless surveillance for national security purposes under the executive branch’s Constitutional power to conduct foreign policy. But that power had been used by government agencies to justify domestic spying against law-abiding anti-war demonstrators and many of the leaders of the civil rights movement of the late 1960s despite First and Fourth Amendment protections prohibiting such activity.

The FISA bill was a product of closed-door negotiations lasting several months between legislators and the Justice Department. Senator Edward Kennedy (D-MA), who had attempted to regulate the power of warrantless surveillance in four different sessions, sponsored the FISA legislation. The FISC concept was a compromise between legislators who wanted the FBI and National Security Agency (NSA), the only two agencies affected by the FISA statute, to follow the standard procedure for obtaining a court order required in criminal investigations and legislators. The federal agencies believed that they should be completely unfettered in conducting their foreign intelligence surveillance work inside US borders. Hence, the FISC was born.<2>

FISA was approved by Congress and signed into law by President Jimmy Carter on October 25, 1978. Executive Order 12139,<3> signed by President Carter several months later, officially chartered the FISC. The legislation established an authorization procedure for the FISC to issue surveillance orders without probable cause. It also set up a “minimization” procedure for communications by US citizens inadvertently intercepted by the agencies. With the passage of FISA, the NSA was bound for the first time to a process of judicial review before initiating domestic surveillance operations.


The FISC

The court consists of seven federal judges chosen from the federal district courts by the Chief Justice of the Supreme Court; each serves a non-renewable seven-year term. Membership of the court is staggered so that a new member is brought in each year. Members are chosen from different federal districts, however, at least one member must come from a district court in the Washington D.C. area. Judge Royce Lamberth, who is a member of the US District Court for Washington DC, currently serves as the FISC Chief Judge.

A separate FISC Appeals Court composed of three members hears the case for applications denied by the lower level of the court. To date, the appeals court has never heard a case. The last resort that the FISA statute provides for any surveillance application rejected by the FISC Appeals Court is an appeal directly to the Supreme Court.

The FISC court conducts all of its hearings in a secret windowless courtroom, sealed from the public by cipher-locked doors on the top floor of the Department of Justice. It considers surveillance and physical search applications that have been reviewed and forwarded by the Office of Intelligence Policy and Review, which is the Department of Justice’s section that deals with foreign intelligence matters.<4>

All applications forwarded to the FISC must be reviewed and approved by the Attorney General. If the FISC judge considering the application believes that the request meets the standards of the FISA statute, electronic surveillance can be approved for up to ninety days for US citizens or a year for foreign nationals. The court also hears requests for extensions, which are routinely granted.

The initial authorization of the court included only the power to approve wiretapping and surveillance. After Janet Reno approved a warrantless physical search of CIA spy Aldrich Ames’ Arlington, Virginia home in October 1993, the Department of Justice made a request to Congress that the authority of FISC be expanded to include physical searches. Congress obliged by including authorization for an expansion of FISC powers in the Intelligence Authorization Act of 1995.

President Clinton implemented the new powers through Executive Order 12949.<5> Apart from giving the FISC physical search powers, the executive order also authorized the Attorney General “to approve physical searches, without a court order, to acquire foreign intelligence information for periods up to one year, if the Attorney General makes the certifications required by [FISA].”<6>

This expansion also included the power for evidence gathered in FISA surveillance and searches to be used in criminal proceedings. However, all information regarding the order and any evidence obtained under the order are permanently sealed and classified “top secret.” The effect of this provision has been that US citizens are being charged with crimes in federal court and not allowed to review the evidence against them, nor are their attorneys permitted to see the warrants that authorized the search.

The FISA statute requires the Attorney General to submit a report each year to the Administrative Office of the US Courts, the Speaker of the House of Representatives and the President Pro Tempore of the Senate detailing the number of applications from the FBI and NSA requesting surveillance/and or physical searches, the number of orders approved and the number of applications modified or denied by the FISC.<7> Table I displays the number of orders approved by the FISC for each year since FISA was signed into law. To date, the government enjoys a perfect record in regards to application approvals, for no request has ever been rejected by the court.

 
1979
1980
1981
1982
1983
1984
1985
1986
1987
1988
199
319
431
473
549
635
587
573
512
534
1989
1990
1991
1992
1993
1994
1995
1996
1997
 
546
595
593
484
509
576
697
839
749
 


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