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Understanding Intelligence Surveillance: A FISA Primer

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Another reason that Congress passed the Foreign Intelligence Surveillance Act of 1978 was to balance liberties and safety and enhance the ability of government to protect the citizenry from national security dangers while respecting privacy rights.

This Act put an end to the practice of warrantless domestic wiretapping for national security reasons. It mandates that domestic "national security" wiretaps cannot be authorized without the approval of a specialized court created for this purpose, the Foreign Intelligence Surveillance Act Court (FISC).

The FISC originally was composed of seven federal judges, selected by the Chief Justice of the United States to serve a seven-year, non-renewable term. The PATRIOT ACT expanded this number to 11 judges. At least three judges must reside within 20 miles of Washington, D.C. The Chief Justice designates one of these judges to serve as the Chief Judge of the Court.

The purpose of the Court is to review applications for domestic surveillance of individuals the government believes pose a threat to national security. Requests for surveillance are made from various governmental intelligence agencies. They go to the National Security Agency (NSA), then to the Office of Intelligence Policy Review in the Department of Justice.

The Department of Justice makes a recommendation to the Attorney General. If the Attorney General approves the request, the government asks the FISC to issue a warrant permitting surveillance activities to take place. These include both wiretapping (and other forms of electronic eavesdropping) and searches.

The FISC meets in a room to review requests in the Justice Department and follows specific procedures. Only lawyers for the Department of Justice are allowed to appear before the Court. Person(s) under surveillance are not informed of the proceedings nor are they allowed to appear or be represented in the Court by a lawyer. When a legal proceeding involves only one party to a dispute, as in the FISC, it is called an ex parte (Latin: "from one party") proceeding.

If the government's request for a warrant is declined, the government may appeal to the three-judge Foreign Intelligence Court of Review. These are federal district and appellate court judges who, like the FISC judges, are appointed by the Chief Justice to a non-renewable, seven-year term. If this Court also declines the government's request for a warrant, an appeal may be taken to the U.S. Supreme Court.

Although the Foreign Intelligence Review Court was established with the FISC in 1978, it rendered its first decision in 2002, in a case called In Re Sealed Cases (2002). With the exception of this one case, decisions of both the FISC and Foreign Intelligence Court of Review have not been made public. To date, no FISA-related matter has been appealed to the U.S. Supreme Court.

Source: "Foreign Intelligence Surveillance Act facts" .