Foreign Intelligence Surveillance Court of Review

Foreign Intelligence Surveillance Court of Review in the United States

The Foreign Intelligence Surveillance Court of Review was created by the Foreign Intelligence Surveillance Act of 1978 (FISA) to review applications that were denied by the FIS Court. The Court of Review is comprised of three judges, one of whom is designated as the presiding judge, named by the Chief Justice of the United States from the U.S. district or appellate courts. Judges serve a maximum of seven years and are not eligible for redesignation.

There were a set of amendments to the Foreign Intelligence Surveillance Act of 1978 (FISA), so U.s. c. §§ 1801-1871 (2007).  Among other things, those amendments, known as the Protect America Act of 2007 (PAA), Pub . L. No. 110 – 55, 121 Stat. 552, authorized the United States to direct communications service providers to assist it in acquiring foreign intelligence when those acquisitions targeted third persons (such as the service provider’s customers) reasonably believed to be located outside the United States.

On August 5, 2007, Congress enacted the Protect America Act of 2007, codified in
pertinent part at 50 U.S.C. §§ 1805a to 1805c, as a measured expansion of FISA’s scope. Subject to certain conditions, the Protect America Act of 2007 allowed the government to conduct warrantless foreign intelligence surveillance on targets (including United States persons)
“reasonably believed” to be located outside the United States. 1 50 U.S.C. § 1805b (a). The PAA expired in February 2008 and was ultimately replaced with the FISA Amendments Act of 2008, codified as Title VII of FISA.

The Foreign Intelligence Surveillance Court of Review should weigh the nation’s security
interests against the Fourth Amendment privacy interests of United States persons.

History

“In 2002, (Attorney General) Ashcroft submitted a request to the Foreign Intelligence Surveillance Court to reduce the minimization procedures -explains the West’s Encyclopedia of American Law- and allow for greater sharing of information between agents gathering foreign intelligence and agents conducting criminal investigations. The instance marked the first time that the Foreign Intelligence Surveillance Court heard a case en banc, meaning that all of the judges were present. The government in the case urged the court to accept the lowered minimization procedures, but the court rejected this request in its first-ever published opinion. In re All Matters Submitted to the Foreign Intelligence Surveillance Court, 218 F. Supp. 2d 611 (2002).

The (United States) government then decided to appeal the case to the Foreign Intelligence Surveillance Court of Review (FISC-R). The appeal was unprecedented, and the only party to the appeal was the federal government. The court allowed the American Civil Liberties Union (ACLU) and the National Association of Criminal Defense Lawyers to participate as amici curiae, against the objections of the government. On appeal, the government claimed that the dichotomy between foreign intelligence gathering and criminal investigations was an illusion and that developments in FISA should allow the Justice Department to loosen the procedures regarding the sharing of information.

The court agreed with the government’s claims. In re Sealed Case, 310 F.3d 717 (2002). The court found that definition of foreign intelligence information includes such crimes as Espionage and terrorism, so differentiating between investigating these crimes and providing intelligence surveillance was difficult. Moreover, the court found that the USA PATRIOT Act allows the government to conduct wiretaps and searches of U.S. citizens and to share these results with prosecutors.”

According to Arena, Kelli. 2002. “The Foreign Intelligence Surveillance Court.” CNN.com (August 23), “Judges on that court ruled that the Justice Department is misinterpreting its new powers under the U.S.A. Patriot Act that Congress passed last October. The court said the Justice Department’s plan to allow prosecutors to become involved in intelligence investigations goes too far.

The court also mandated that whenever an intelligence official wants to talk with a prosecutor, a Justice Department lawyer must participate to ensure nothing improper is said.

The Justice Department has appealed the decision, saying the U.S.A. Patriot Act allows for a freer flow of communication between the intelligence side and the law enforcement/prosecution side.

This is the first time the court has released a ruling that became public. It is also the first time the Justice Department has appealed a ruling.

The appeal was made to the Court of Review, which is a three-member panel formed specifically to hear appeals from the special surveillance court.

In addition, the court retraced years of problems between the court and the Justice Department, referring to errors made on FISA applications, and the wrongful sharing of information between intelligence and law enforcement before the Patriot Act was implemented.”

Declassification Review

On January 15, 2009, the U.S. Foreign Intelligence Surveillance Court of Review published an unclassified version of its opinion in In Re: Directives Pursuant to Section 105B of the Foreign Intelligence Surveillance Act (FISA), 551 F.3d 1004 (Foreign Intel. Surv. Ct. Rev. 2008). The classified version of the opinion was issued on August 22, 2008, following a challenge by Yahoo! Inc. (Yahoo!) to directives issued under the Protect America Act of 2007 (PAA). On September 11, 2014, following a renewed declassification review, the Executive Branch is publicly releasing various documents from this litigation, including legal briefs and additional sections of the 2008 Foreign Intelligence Surveillance Court of Review opinion, with appropriate redactions to protect national security information. These documents are available at the website of the Office of the Director of National Intelligence (ODNI).

Foreign Intelligence Surveillance Court of Review

Wiretapping Without Warrants

A ruling, handed down in August 2008 by the Foreign Intelligence Surveillance Court of Review but made public in January 2009, dealt narrowly with the carrying out of a law that had been superseded by new legislation. But the ruling is still the first by an appeals court that says the Fourth Amendment’s requirement for warrants does not apply to the foreign collection of intelligence involving Americans. That finding could have broad implications for United States national security law.

In Re: Directives Pursuant to Section 105B of the Foreign Intelligence Surveillance Act involved a challenge by Yahoo! to directives issued by the Director of National Intelligence (DNI) and the Attorney General under the PAA. The PAA was the predecessor to the Foreign Intelligence Surveillance Act (FISA) Amendments Act of 2008 (FISA Amendments Act of 2008 or FAA). The directives issued to Yahoo! under the PAA required it to assist the U.S. Government in acquiring foreign intelligence information through the surveillance of targets reasonably believed to be located outside the United States. Yahoo! refused to comply with the directives, and the U.S. Government initiated proceedings in the FISC to compel compliance.

The Foreign Intelligence Surveillance Court of Review ruled that eavesdropping on Americans believed to be agents of a foreign power “possesses characteristics that qualify it for such an exception.”

The chief judge of the Foreign Intelligence Surveillance Court of Review, wrote in the opinion that “our decision recognizes that where the government has instituted several layers of serviceable safeguards to protect individuals against unwarranted harms and to minimize incidental intrusions, its efforts to protect national security should not be frustrated by the courts.”

the FISC-R issued a classified opinion, affirming the FISC’s decision that the directives were lawful. In its decision, the FISC-R first held that Yahoo! had standing to challenge the directives based on the Fourth Amendment interests of its customers that Yahoo! was alleging. Turning to the merits of the case, the FISC-R rejected Yahoo!’s Fourth Amendment challenge to the directives.

First, the FISC-R held that a traditional warrant was not required. Basing its opinion on a line of U.S. Supreme Court cases recognizing “special needs” exceptions to the Fourth Amendment’s warrant requirement, the FISC-R held that the U.S. Government’s collection of foreign intelligence information pursuant to the directives addressed a special need that justified an exception to the warrant requirement.

Second, the FISC-R held that the surveillance at issue met the reasonableness requirement of the Fourth Amendment, in light of the national security interests at issue and the “matrix of safeguards” required by the PAA and implemented by multiple branches of the Government. Those safeguards included:

  • Targeting procedures reviewed by the FISC and designed to ensure that the U.S. Government targets someone only if the Government has a valid foreign intelligence purpose and reasonably believes that person is located outside of the United States.
  • Minimization procedures designed to limit the retention and dissemination of information about U.S. persons.
  • Procedures that require the Attorney General to find, before the U.S. Government conducts surveillance of any U.S. person located outside the United States, that the targeted U.S. person is a foreign power or an agent of a foreign power. These procedures were not required by the PAA. Rather, the U.S. Government included them as a requirement in the certifications for the surveillance of U.S. persons located outside the United States, consistent with its practice since 1981 under Section 2.5 of Executive Order 12333.

The court ruled, “this is little more than a lament about the risk that government officials will not operate in good faith.’ It added: “That sort of risk exists even when a warrant is required.”

No rehearing or further review in the U.S. Supreme Court was sought.

Foreign Intelligence Surveillance Court (FISC)

The Foreign Intelligence Surveillance Court (FISC) is composed of federal judges appointed by the Chief Justice of the Supreme Court, and its decisions can be reviewed by the Foreign Intelligence Surveillance Court of Review.

Further reading

Blum, Vanessa. 2002. “Spy Court Steps Onto Foreign Soil.” Legal Times 25 (September 2).
Hudson, David L., Jr. 2003. “Unusual Ruling Leads to Unusual Filing.” ABA Journal E-Report (February 28).
Linz, Michael F., and Sarah E. Melzer. 2003. “Constitutional Issues After 9/11: Trading Liberty for Safety.” Federal Lawyer (January).

See Also

  • Search and Seizure
  • Electronic Surveillance
  • Yahoo

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