Educational Outreach

Understanding Intelligence Surveillance: A FISA Primer

What is FISA? | Foreign Intelligence Surveillance Court and The Court of Review | Related Cases | FISA in the News | Student Discussion Questions

One of the reasons that Congress enacted The Foreign Intelligence Surveillance Act of 1978 (FISA), 50 U.S.C.A. SS 1801 et seq., was to put in place checks and balances among the three branches of government in regard to domestic warrantless surveillance in the name of national security, a practice which had given rise to governmental abuse in the past.

FISA created the Foreign Intelligence Surveillance Court (FISC), or the FISA Court, as it is popularly called. It is composed of 11 (previously seven) federal judges, selected by the Chief Justice to a non-renewable seven year term. Its job is to review applications for governmental surveillance of persons within the United States whom the government suspects of having connections to foreign governments and/or terrorist organizations. A Foreign Intelligence Court of Review also was established to review applications denied by the FISA Court.

The primary purpose of FISA is to assist the government, specifically the Executive Branch, with gathering foreign intelligence, as opposed to evidence of criminal activity. Although intelligence operations often result in the discovery of evidence of crimes, this must be a secondary objective. Indeed, the FISA Court is instructed not to permit surveillance activities if the government's sole motivation is to use the surveillance for criminal investigative purposes.

The FISA specifically states that its terms apply only when the subject of a surveillance is residing within the United States. In other words, the government is free to conduct warrantless surveillance operations of individuals so long as those individuals are outside of the borders of the United States.

Even if an individual is residing in the United States, the President, through the Attorney General, may authorize a warrantless surveillance on the individual for as long as 72 hours if an emergency/necessity dictates. However, the Attorney General must inform the FISC as earlier as possible and it must explain why it was not feasible to first seek the Court's permission before carrying out the surveillance activity.

Additionally, if Congress declares that a state of war exists, the President, through the Attorney General, may authorize the warrantless surveillance of individuals for as long as 15 days. Certain provisions of the U.S.A. PATRIOT Act of 2001 further expand the government's powers under the FISA.

Warrantless Wiretaps

In 2005, news agencies reported that, in the wake of the September 11, 2001 terrorist attacks on the United States, President Bush authorized the warrantless surveillance of individuals within the United States whom the government had reason to believe were affiliated with foreign terrorists. Although he received criticism that this action violated both the Fourth Amendment (which prohibits unreasonable searches and seizures) and FISA, President Bush argued that he has the inherent authority as Commander-in-Chief of the armed forces to authorize this action to protect U.S. citizens. As a result, a public discussion is underway in legal circles concerning the following questions:

1. What is the proper balance between preserving civil liberties and protecting national security in times of war and crisis?; and
2. What is the proper role of each branch of government in authorizing warrantless surveillance during wartime?