United States Foreign Intelligence Surveillance Court of Review | |
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(F.I.S.C.R.) | |
Location | Washington, D.C. |
Appeals to | Supreme Court of the United States |
Appeals from | |
Established | October 25, 1978 |
Authority | Article III court |
Created by | Foreign Intelligence Surveillance Act 50 U.S.C. § 1803 |
Composition method | Chief Justice appointment |
Judges | 3 |
Judge term length | 7 years |
Presiding Judge | Stephen A. Higginson |
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The United States Foreign Intelligence Surveillance Court of Review (FISCR) is a U.S. federal court whose sole purpose is to review denials of applications for electronic surveillance warrants (called FISA warrants) by the United States Foreign Intelligence Surveillance Court (or FISC). The FISCR was established by the Foreign Intelligence Surveillance Act of 1978 (known as FISA for short) and consists of a panel of three judges. Like the FISC, the FISCR is not an adversarial court; rather, the only party to the court is the federal government, although other parties may submit briefs as amici curiae if they are made aware of the proceedings. Papers are filed and proceedings are held in secret. Records of the proceedings are kept classified, though copies of the proceedings with sensitive information redacted are very occasionally made public. The government may appeal decisions of the FISCR to the Supreme Court of the United States, which hears appeals on a discretionary basis.
There is no provision for review or appeal of a grant of a warrant application, only of a denial. That is because in both the FISC and the FISCA, the government –the party who seeks a warrant to conduct surveillance –is the only party before the court, and it is unusual for anyone else to become aware of the warrant application in the first place.
The judges of the Court of Review are district or appellate federal judges, appointed by the Chief Justice of the United States for seven-year terms. Their terms are staggered so that there are at least two years between consecutive appointments. A judge may be appointed only once to either the FISCR or the FISC.
The FISCR was called into session for the first time in 2002 in a case referred to as In re: Sealed Case No. 02-001 . The FISC had granted a FISA warrant to the Federal Bureau of Investigation (FBI) but had placed restrictions on its use; specifically, the FBI was denied the ability to use evidence gathered under the warrant in criminal cases. FISCR allowed a coalition of civil liberties groups, including the American Civil Liberties Union and the Electronic Frontier Foundation, to file amicus briefs opposing the FBI's new surveillance programs. The FISCR held that the restrictions that the FISC had placed on the warrant violated both FISA and the USA PATRIOT Act and that there was no constitutional requirement for those restrictions.
In August 2008, the FISCR affirmed the constitutionality of the Protect America Act of 2007 in a heavily redacted opinion, In re Directives [redacted text] Pursuant to Section 105B of the Foreign Intelligence Surveillance Act, released on January 15, 2009. [1] [2] [3] In re Directives was only the second such public ruling since FISA's enactment. [4]
In May 2018, the FISCR affirmed an en banc order holding that three public interest groups had "standing to seek disclosure of the classified portions of the opinions at issue." The three groups were the American Civil Liberties Union Foundation, the American Civil Liberties Union of the Nation's Capital, and the Media Freedom and Information Access Clinic at Yale University. The government had argued that none of the groups had a legal right to compel disclosure of FISC opinions. The FISCR disagreed, holding: "The flaw in the government's position is that it attacks the merits of the movants' claim rather than whether the claim is judicially cognizable. In other words, the government confuses the question of whether the movants have a First Amendment right of access to FISC opinions with the question of whether they have a right merely to assert that claim. Courts have repeatedly pointed out that there is a distinction between whether the plaintiff has shown injury for purposes of standing and whether the plaintiff can succeed on the merits." [5]
Note that the start dates of service for some judges conflict among sources. [6] [7] [8] [9] [10] [11] [12]
Name | Court | Start | End | Presiding Start | Presiding End | FISCR Appointer (Chief Justice) | Original Appointer (President) |
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Stephen Higginson | 5th Cir. | February 25, 2021 | May 18, 2027 | August 16, 2023 | present | John Roberts | Barack Obama |
Timothy Tymkovich | 10th Cir. | November 1, 2023 | May 18, 2030 | – | – | John Roberts | George W. Bush |
Lisa Godbey Wood | S.D. Ga. | November 1, 2023 | May 18, 2030 | – | – | John Roberts | George W. Bush |
Name | Court | Start | End | Presiding Start | Presiding End | FISCR Appointer (Chief Justice) | Original Appointer (President) |
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Morris Arnold | 8th Cir. | May 19, 2008 | August 31, 2013 | September 10, 2012 | August 31, 2013 | John Roberts | George H. W. Bush |
Bobby Baldock | 10th Cir. | June 17, 1992 | May 18, 1998 | – | – | William Rehnquist | Ronald Reagan |
James Barrett | 10th Cir. | May 19, 1979 | May 18, 1984 | – | – | Warren Burger | Richard Nixon |
William Bryson | Fed. Cir. | May 19, 2011 | May 18, 2018 | September 10, 2013 | May 18, 2018 | John Roberts | Bill Clinton |
José Cabranes | 2nd Cir. | August 9, 2013 | May 18, 2020 | May 19, 2018 | May 18, 2020 | John Roberts | Bill Clinton |
John Field | 4th Cir. | May 19, 1982 | May 18, 1989 | – | – | Warren Burger | Richard Nixon |
Ralph Guy | 6th Cir. | October 8, 1998 | May 18, 2005 | May 19, 2001 | May 18, 2005 | William Rehnquist | Ronald Reagan |
Leon Higginbotham | 3rd Cir. | May 19, 1979 | May 18, 1986 | May 19, 1979 | May 18, 1986 | Warren Burger | Jimmy Carter |
Edward Leavy | 9th Cir. | September 25, 2001 | May 18, 2008 | May 19, 2005 | May 18, 2008 | William Rehnquist | Ronald Reagan |
George MacKinnon | D.C. Cir. | May 19, 1979 | May 18, 1982 | – | – | Warren Burger | Richard Nixon |
Robert Miller | N.D. Ind. | July 8, 2020 | September 15, 2023 | – | – | John Roberts | Ronald Reagan |
Edward Northrop | D. Md. | January 11, 1985 | January 10, 1992 | – | – | Warren Burger | John F. Kennedy |
Paul Roney | 11th Cir. | September 13, 1994 | May 18, 2001 | September 13, 1994 | May 18, 2001 | William Rehnquist | Richard Nixon |
Collins Seitz | 3rd Cir. | March 19, 1987 | March 18, 1994 | March 19, 1987 | March 18, 1994 | William Rehnquist | Lyndon Johnson |
Bruce Selya | 1st Cir. | October 8, 2005 | May 18, 2012 | May 19, 2008 | May 18, 2012 | John Roberts | Ronald Reagan |
David Sentelle | D.C. Cir. | May 19, 2018 | September 15, 2023 | May 19, 2020 | September 15, 2023 | John Roberts | Ronald Reagan |
Laurence Silberman | D.C. Cir. | June 18, 1996 | May 18, 2003 | – | – | William Rehnquist | Ronald Reagan |
Richard Tallman | 9th Cir. | January 27, 2014 | January 26, 2021 | – | – | John Roberts | Bill Clinton |
Robert Warren | E.D. Wis. | October 30, 1989 | May 18, 1996 | – | – | William Rehnquist | Richard Nixon |
Ralph Winter | 2nd Cir. | November 14, 2003 | May 18, 2010 | – | – | John Roberts | Ronald Reagan |
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The United States Foreign Intelligence Surveillance Court (FISC), also called the FISA Court, is a U.S. federal court established under the Foreign Intelligence Surveillance Act of 1978 (FISA) to oversee requests for surveillance warrants against foreign spies inside the United States by federal law enforcement and intelligence agencies.
The Foreign Intelligence Surveillance Act of 1978 is a United States federal law that establishes procedures for the surveillance and collection of foreign intelligence on domestic soil.
The USA PATRIOT Act was passed by the United States Congress in 2001 as a response to the September 11, 2001 attacks. It has ten titles, each containing numerous sections. Title II: Enhanced Surveillance Procedures granted increased powers of surveillance to various government agencies and bodies. This title has 25 sections, with one of the sections containing a sunset clause which sets an expiration date, December 31, 2005, for most of the title's provisions. This was extended twice: on December 22, 2005 the sunset clause expiration date was extended to February 3, 2006 and on February 2 of the same year it was again extended, this time to March 10.
Project MINARET was a domestic espionage project operated by the National Security Agency (NSA), which, after intercepting electronic communications that contained the names of predesignated US citizens, passed them to other government law enforcement and intelligence organizations. Intercepted messages were disseminated to the FBI, CIA, Secret Service, Bureau of Narcotics and Dangerous Drugs (BNDD), and the Department of Defense. The project was a sister project to Project SHAMROCK.
NSA warrantless surveillance — also commonly referred to as "warrantless-wiretapping" or "-wiretaps" — was the surveillance of persons within the United States, including U.S. citizens, during the collection of notionally foreign intelligence by the National Security Agency (NSA) as part of the Terrorist Surveillance Program. In late 2001, the NSA was authorized to monitor, without obtaining a FISA warrant, phone calls, Internet activities, text messages and other forms of communication involving any party believed by the NSA to be outside the U.S., even if the other end of the communication lays within the U.S.
In re: Sealed Case No. 02-001, 310 F.3d 717 (2002), is a per curiam decision by the United States Foreign Intelligence Surveillance Court of Review in which it reviewed restrictions that were placed upon a Foreign Intelligence Surveillance Act (FISA) application by the Foreign Intelligence Surveillance Court (FISC) on May 17, 2002. The Court of Review reversed the FISC's restrictions by stating that they "are not required by FISA or the Constitution." The opinion represents the first meeting of and first opinion by the Court of Review. For the purposes of review, the FISC's modification of the requested application worked as a "denial" and thus gave the Court of Review jurisdiction to take the case.
American Civil Liberties Union v. National Security Agency, 493 F.3d 644, is a case decided July 6, 2007, in which the United States Court of Appeals for the Sixth Circuit held that the plaintiffs in the case did not have standing to bring the suit against the National Security Agency (NSA), because they could not present evidence that they were the targets of the so-called "Terrorist Surveillance Program" (TSP).
The Terrorist Surveillance Program was an electronic surveillance program implemented by the National Security Agency (NSA) of the United States in the wake of the September 11, 2001 attacks. It was part of the President's Surveillance Program, which was in turn conducted under the overall umbrella of the War on Terrorism. The NSA, a signals intelligence agency, implemented the program to intercept al Qaeda communications overseas where at least one party is not a U.S. person. In 2005, The New York Times disclosed that technical glitches resulted in some of the intercepts including communications which were "purely domestic" in nature, igniting the NSA warrantless surveillance controversy. Later works, such as James Bamford's The Shadow Factory, described how the nature of the domestic surveillance was much, much more widespread than initially disclosed. In a 2011 New Yorker article, former NSA employee Bill Binney said that his colleagues told him that the NSA had begun storing billing and phone records from "everyone in the country."
Hepting v. AT&T, 439 F.Supp.2d 974, was a class action lawsuit argued before the United States District Court for the Northern District of California, filed by Electronic Frontier Foundation (EFF) on behalf of customers of the telecommunications company AT&T. The plaintiffs alleged that AT&T permitted and assisted the National Security Agency (NSA) in unlawfully monitoring the personal communications of American citizens, including AT&T customers, whose communications were routed through AT&T's network.
Warrantless searches are searches and seizures conducted without court-issued search warrants.
The Protect America Act of 2007 (PAA),, is a controversial amendment to the Foreign Intelligence Surveillance Act (FISA) that was signed into law by U.S. President George W. Bush on August 5, 2007. It removed the warrant requirement for government surveillance of foreign intelligence targets "reasonably believed" to be outside the United States. The FISA Amendments Act of 2008 reauthorized many provisions of the Protect America Act in Title VII of FISA.
The FISA Amendments Act of 2008, also called the FAA and Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008, is an Act of Congress that amended the Foreign Intelligence Surveillance Act. It has been used as the legal basis for surveillance programs disclosed by Edward Snowden in 2013, including PRISM.
Rosemary Mayers Collyer is an inactive Senior United States district judge of the United States District Court for the District of Columbia, and a former judge of the United States Foreign Intelligence Surveillance Court.
James Robertson was a United States district judge of the United States District Court for the District of Columbia from 1994 until his retirement in June 2010. Robertson also served on the Foreign Intelligence Surveillance Court from 2002 until December 2005, when he resigned from that court in protest against warrantless wiretapping.
EPIC v. Department of Justice is a 2014 case in the United States District Court for the District of Columbia between the Electronic Privacy Information Center (EPIC) and the U.S. Department of Justice (DOJ) where EPIC seeks court action to enforce their Freedom of Information Act request for documents that the Department of Justice has withheld pertaining to George W. Bush's authorization of NSA warrantless surveillance.
Clapper v. Amnesty International USA, 568 U.S. 398 (2013), was a United States Supreme Court case in which the Court held that Amnesty International USA and others lacked standing to challenge section 702 of the Foreign Intelligence Surveillance Act of 1978, as amended by the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008.
Former U.S. President Barack Obama favored some levels of mass surveillance. He has received some widespread criticism from detractors as a result. Due to his support of certain government surveillance, some critics have said his support violated acceptable privacy rights, while others dispute or attempt to provide justification for the expansion of surveillance initiatives under his administration.
American Civil Liberties Union v. Clapper, 785 F.3d 787, was a lawsuit by the American Civil Liberties Union (ACLU) and its affiliate, the New York Civil Liberties Union, against the United States federal government as represented by then-Director of National Intelligence James Clapper. The ACLU challenged the legality and constitutionality of the National Security Agency's (NSA) bulk phone metadata collection program.
In Re Electronic Privacy Information Center, 134 S.Ct. 638 (2013), was a direct petition to the Supreme Court of the United States regarding the National Security Agency's (NSA) telephony metadata collection program. On July 8, 2013, the Electronic Privacy Information Center (EPIC) filed a petition for a writ of mandamus and prohibition, or a writ of certiorari, to vacate an order of the Foreign Intelligence Surveillance Court (FISC) in which the court compelled Verizon to produce telephony metadata records from all of its subscribers' calls and deliver those records to the NSA. On November 18, 2013, the Supreme Court denied EPIC's petition.
Carter William Page is an American petroleum industry consultant and a former foreign-policy adviser to Donald Trump during his 2016 presidential election campaign. Page is the founder and managing partner of Global Energy Capital, a one-man investment fund and consulting firm specializing in the Russian and Central Asian oil and gas business.