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What Exactly Is the Secret FISA Court?

By Aditi Mukherji, JD on June 19, 2013 | Last updated on March 21, 2019

As NSA surveillance secrets make a a big splash in the headlines, you may have heard the terms "FISA" and "secret court," but even as an attorney, don't know much about them. Here's a little more history on the most secretive court in America.

The Foreign Intelligence Surveillance Act of 1978 (FISA) regulates the government's conduct of intelligence surveillance inside the United States. In essence, it requires the government to obtain a warrant before being able to conduct surveillance on "agents of a foreign power" engaged in espionage or terrorism.

The Foreign Intelligence Surveillance Court (FISC) is the gatekeeper. By ruling yea or nay on warrant applications, it is supposed to ensure sure the government doesn't abuse its surveillance powers.

Making the court infinitely more fascinating, the court operates in secret, reports NPR. The records and files of the cases are sealed and can't be revealed even to people whose prosecutions are based on evidence obtained under FISA warrants. To date, there have only been two public rulings since the FISA was enacted.

Who Sits on the Foreign Intelligence Surveillance Court?

In 1978, Congress authorized the Chief Justice of the United States to designate seven federal district court judges to review applications for warrants related to national security investigations. The USA Patriot Act of 2001 increased the number of judges serving the court from seven to eleven.

The eleven judges must be drawn from at least seven judicial circuits, and at least three must live within twenty miles of D.C. The judges of the Foreign Intelligence Surveillance Court travel to D.C. to hear warrant applications on a rotating basis. To ensure that the court can convene on short notice, at least one of the judges is required to be a member of the U.S. District Court for the District of Columbia, according to the Federal Judicial Center's website.

What is the Foreign Intelligence Surveillance Court of Review?

The FISA of 1978 also established a Foreign Intelligence Surveillance Court of Review, presided over by three district or appeals court judges designated by the Chief Justice, to review, at the government's request, the decisions of the Foreign Intelligence Surveillance Court.

Because of the almost perfect record of the Department of Justice in obtaining the surveillance warrants and other powers it requested from the Foreign Intelligence Surveillance Court, the review court never met until 2002, according to the website.

The secrecy of the court, the non-adversarial process and the pristine record of granting warrant applications is what troubles civil liberties groups.

The court has rejected .03 percent of all government surveillance requests, leading many to suspect the FISC of rubber stamping nearly every application the government puts in front of it, reports Mother Jones.

With the hope of greater transparency, a number of Democratic senators sent the FISC a letter, urging the court to consider releasing portions of its opinions to the public in a summary form that leaves out classified facts. After the NSA documents leak, Al Franken called the same, reports Politicus USA.

In response to the letters, the FISA court's presiding judge, Reggie B. Walton, said in March that it would be very difficult to release summaries of the court's opinions to the public, because the legal analysis in most opinions is "inextricably intertwined" with classified information, reports Secrecy News.

Maybe it's time to re-think that policy.

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