FIS: The Nation's Secret Court
A "uniquely non-public court"
By Robert Longley
LINK

In the United States federal judicial system, a single court operates in almost total secrecy, its deliberations and even its decisions closed to the public. Created in 1978, the eleven judges of the U.S. Foreign Intelligence Surveillance Court (FIS) consider and rule on applications by federal law enforcement and intelligence agencies to conduct electronic surveillance anywhere within the United States.

The FIS Court operates under the Foreign Intelligence Surveillance Act (FISA), which regulates the gathering of foreign intelligence information inside the United States, and rarely refuses a government request to conduct special surveillance.

Section 1802(b) of the FISA authorizes the federal government to file applications for electronic surveillance with the FIS Court, and empowers the FIS Court to grant orders "approving electronic surveillance of a foreign power or agent of a foreign power for the purpose of obtaining foreign intelligence information."

A Rare Public Opinion
Only three opinions issued by the FIS Court have ever been made public. The most recent of these came on Dec. 11, 2007, when the Court, referring to itself as a "unique and uniquely non-public court," refused a request from the American Civil Liberties Union (ACLU) demanding that the Court make public its order authorizing the Bush Administration to expand its program of electronic surveillance to include phone calls and emails of U.S. residents.

In the 22-page opinion (.pdf), FIS Court Judge John D. Bates noted that the Constitution's First Amendment could not be used as a basis for public access to the Court's records.

The Court's opinion goes on to conclude that "certain benefits" possibly resulting from making its records public, including "an additional safeguard against mistakes, overreaching or abuse" of the government's surveillance powers, fail to overcome the need for secrecy. The dangers of "broad public access" to the Court's activities, wrote Judge Bates, would "greatly outweigh any such benefits."

Judge John D. Bates was appointed to the U.S. District Court for the District of Columbia by President George W. Bush in December 2001, and to the U.S. Foreign Intelligence Surveillance Court by Chief Justice John G. Roberts in February 2006.

The Foreign Intelligence Surveillance Act (FISA)
A Short History
By Tom Head, About.com Guide
LINK

The Foreign Intelligence Surveillance Act (FISA) has gotten a good bit of press over the past two years, but it's difficult to understand what the law means and why it's important without knowing a little bit about its history. The story goes something like this...

1970: Christopher Pyle Speaks Out

In January of 1970, a young man named Christopher Pyle uncovered evidence that the U.S. Army Intelligence Command had over 1,500 officers in the United States commissioned to spy on any known protests or demonstrations with more than 20 participants. His complaint caught the eye of Senator Sam Ervin (D-NC) and Senator Frank Church (D-ID), each of whom launched committee investigations into warrantless government surveillance of civilians.

1974-1976: Seymour Hersh and the Church Committee

As chair of the Senate Judiciary Subcommittee on Constitutional Rights, Senator Ervin was concerned about Pyle's allegations but had little power to act on them. Ervin's work as chair of the Watergate committee, from 1972 on, would prove more productive.

His work was picked up by Senator Church in 1975, after the resignation of President Nixon and the publication of a December 1974 report by journalist Seymour Hersh revealing large-scale warrantless CIA surveillance. Senator Church led the U.S. Select Committee to Study Governmental Operations with Respect to Intelligence Activities, which found that the executive branch had routinely perpetrated civil liberties violations against civilians on a massive scale in violation of federal law.

1978: President Carter Signs the Foreign Intelligence Surveillance Act (FISA)


The Church Committee's findings led to numerous changes in U.S. policy. One of these changes was the establishment of the Foreign Intelligence Surveillance Court, a court through which the executive branch may secretly obtain warrants for electronic surveillance while remaining subject to judicial review.

1994: The Aldrich Ames Controversy

FISA did not cover physical searches at first. When the Clinton administration investigated CIA agent and suspected Soviet spy Aldrich Ames in 1994, the president ordered Attorney General Janet Reno to authorize warrantless physical searches of Ames' residence. The Clinton administration argued that the executive branch did not need a search warrant in cases where the suspect was believed to be an agent of a foreign power, even if the suspect was a U.S. citizen.

Under pressure from civil libertarians, the Clinton administration eventually agreed to a revision of FISA that allowed justice department officials to obtain warrants for physical searches through the Foreign Intelligence Surveillance Court.

2005-present: The Spygate Controversy

In December 2005, the New York Times reported that the Bush administration had conducted numerous illegal warrantless searches as part of its counterterrorism initiatives. In January 2007, the Bush administration voluntarily agreed to place its surveillance program under the supervision of the Federal Intelligence Surveillance Court. The Court was promptly overwhelmed with the number of surveillance requests, creating the possibility of unacceptable delays in processing FISA warrants. In August 2007, Congress passed a law exempting the Bush administration from FISA for six months, allowing time to analyze and debate possible long-term revisions that can be made to FISA to better accommodate both the Court and the executive branch.