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by Patrick S. Poole
Monday, Aug. 27, 2001 at 12:11 PM
Extensive article which details yet another manner which the gov't monitors citizens inside the US. NSA is prominently mentioned.
Inside America's Secret Court: The Foreign Intelligence Surveillance Court
by Patrick S. Poole
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
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 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
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
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.
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
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