The controversies over the data collection programs of the National Security Agency, NSA, have raised important questions about the Foreign Intelligence Surveillance Act, FISA and the Foreign Intelligence Surveillance Court, FISC, which was created by the terms of that legislation which was enacted in 1978. Since the court generally operates in secret it is difficult to get information to answer questions about its role in the oversight on national security programs. I have gotten interested in digging around for the bits and pieces of information that are available. For those seeking quick drama, be warned, this is a wonkish diary.
Yesterday I posted this diary:
The comments to the diary raised a number of excellent probing questions that require further research. This is a work in progress.
Here is a starting point.
The constitution gives power to congress to establish federal courts below the Supreme Court. Most of the cases that come before federal courts are handled by a geographically based structure. The general trial courts of original jurisdiction are the federal district courts that have a jurisdiction of a specific geographic area. Judgments of the district courts can be appealed to the Court of Appeals which is divided into geographic circuits. The ultimate level of appeal is to the Supreme Court of the United States, SCOTUS. That court has the power to choose which appeals it will accept.
Sitting beside this general geographic structure are several specialized courts that deal with specific types of cases. They include both courts of original jurisdiction appellate courts that review their actions. They include:
United States Alien Terrorist Removal Court
United States bankruptcy courts (for each district court)
United States Court of Federal Claims
United States Court of International Trade
United States Foreign Intelligence Surveillance Court
United States Tax Court
Courts like bankruptcy and tax handle a large volume of cases and most of their work is routine and not particularly controversial. The FSIC is a rather different creature in a number of ways. In almost all cases the judges sitting on federal courts, including most specialty courts are appointed by the president and confirmed by the senate. FISC is designated by law as a separate court. However, the judges that sit on the court are all federal district judges who were appointed to that office by the president. In order to serve on the FISC they are DESIGNATED by the chief justice of the US who is the administrator of the federal judiciary. Once designated they serve for a fixed term of seven years. This arrangement was established in the original 1978 legislation.
Here is the relevant section of the US Code.
(1) The Chief Justice of the United States shall publiclyWhat might otherwise be a rather arcane matter has taken on some significance because of the way that the current chief justice John Roberts has used his power under these provisions. All of the 11 judges currently on the court have been designated by him. 10 of the eleven are appointees of Republican presidents. Several of them have track records of involvement in politically controversial cases in their function as general district court judges. This configuration strikes many people as unbalanced and there is already one bill introduced in congress to reduce the role of the chief justice.
designate 11 district court judges from at least seven of the
United States judicial circuits of whom no fewer than 3 shall
reside within 20 miles of the District of Columbia who shall
constitute a court which shall have jurisdiction to hear
applications for and grant orders approving electronic surveillance
anywhere within the United States under the procedures set forth in
this chapter, except that no judge designated under this subsection
(except when sitting en banc under paragraph (2)) shall hear the
same application for electronic surveillance under this chapter
which has been denied previously by another judge designated under
this subsection. If any judge so designated denies an application
for an order authorizing electronic surveillance under this
chapter, such judge shall provide immediately for the record a
written statement of each reason of his decision and, on motion of
the United States, the record shall be transmitted, under seal, to
the court of review established in subsection (b) of this section.
I am making a point of emphasizing the word designate that appears in the statute. Articles in the media and diaries on Daily Kos have been referring to this function as appointment. This seems to be a very widespread usage reflects what the general public understanding. I have followed the same practice until now. I would leave it to attorneys to discuss the finer points of the difference in meaning between designate and appoint. However I think that we are likely to see much discussion about the court and the law with proposals for its reform. This seems like a good time to get the terminology accurate.
One question that arises is why the authority for the membership of FISC and of the review court was given to the chief justice. Some historical research would be required to determine legislative intent. The law was enacted by a Democratic Congress and signed by a Democratic president, but Warren Berger was CJ at the time. One plausible thought would be that since it is the function of the court to conduct oversight of the activities of the executive branch there was a desire to have a check on the authority of the president as the head of that branch.
Another significant thing about FISC that makes it different from all of the othe federal courts is the total secrecy of it proceedings and rulings. It was originally setup to perform the function of reviewing request by DOJ for warrants to conduct surveillance. That kept its activities limited in scope. That began to change after 9/11. The Patriot Act expanded its membership and began a process of mission creep. The Bush administration took authority upon itself to initiate activities that were neither authorized nor legal under existing law. The FISA amendments of 2008 were presented as intended to provide the authority to regularize those practices. It now appears that the court and DOJ have stretched the authority provided under that act more broadly than congress intended. The truth of this cannot be determined without access to the proceedings.
Judge Regie Walton, the present presiding judge of FISC has responded to various request for the release of court decisions of a programmatic nature by saying that the redactions that would be necessary to protect classified information would create confusion for the public. The Justice Dept. of the Obama administration has also put forth its best effort at stonewalling.
This is a special court created for a special purpose. One would expect it to be different to a certain extent. The question to be asked is have those differences gone beyond a point that is reasonable and safe for a democratic government that must ultimately be accountable to its citizens.
UPDATE 3:10: Here's an interesting link provided by Villanova Rhodes.U.S. Foreign Intelligence Surveillance Court Public Filings
I was not aware that there were any public records of any of the courts activities. While it does seem that most of their work is conducted in secret, this another piece to add to the picture.