Inside America's Secret Court: The Foreign Intelligence Surveillance Court

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Inside America's Secret Court: The Foreign Intelligence Surveillance Court

by Patrick S. Poole

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) 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.

FISA was approved by Congress and signed into law by President Jimmy Carter

on October 25, 1978. Executive Order 12139, 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.

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.

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]."

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. 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.





Table I. FISA Surveillance and Physical Search Orders 1979-1997

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 As

the above table shows, the sparing use of the court's authority in the last

few years of the Carter Administration is contrasted with the increase of

FISC orders during the Reagan Administration. It may be reasonable to assume

that this trend was a direct result of terrorist activity targeting American

citizens abroad during this period of time. A slight decline in the number of

court orders occurs in 1987, mirroring a decrease in terrorist activity after

the US bombing of Tripoli, Libya in 1986. A general stabilization occurs in

the remainder of the Reagan Administration and throughout the Bush

Administration, which included the Persian Gulf War period.

However, a sharp increase in FISC orders has occurred since the ascendance of

the Clinton Administration, with no apparent return to 1980s levels. This

frightening increase in the use of the FISC by the present administration is

compounded by the fact that in recent years the FISC has approved more appli

cations than the whole of the entire federal judiciary. In 1996, the FISC

approved 839 applications, while all federal judges combined approved only

538 requests. During 1997, federal judges approved 569 surveillance and

search requests to investigate criminal activity, while the FISC approved 749

applications for investigations without any criminal predicate.

Constitutional Concerns

The intent behind the passage of the FISA legislation was to impose limits

and a review process upon warrantless surveillance and searches conducted for

"national security" purposes in light of the numerous abuses by federal

agencies against US citizens. But the politicization and present use of the

FISA process has resulted in the erosion of numerous Constitutional rights

and basic legal procedures that have their roots in free societies dating

back to the Magna Carta.

Circumventing the Bill of Rights

The most troubling aspect of FISA surveillance and searches is that they

circumvent explicit Constitutional guarantees expressed in the First, Fourth,

Fifth and Sixth Amendments to the Constitution. The First Amendment

guarantees the right to free speech and to peaceable assembly. However, under

the FISA statute, a US citizen may be subject to a FISC surveillance order

for political statements and views that are determined to be unpopular