OVERVIEWS

Constitutional & Legal Issues

Foreign Intelligence Surveillance Court

To 2008

Materials presented in chronological order.

American Bar Association. Standing Committee on Law and National Security. "The First (and Last?) Published Opinion of the Intelligence Court." Intelligence Report 3, no. 12 (1981): 3-4, 6-10.

[Lamberth, Royce.] "FISA Court Judge Royce Lamberth Discusses Work of Court." National Security Law Report 19, no. 2 (May 1997): 1-2, 4-5.

Excerpts of remarks made 4 April 1997 to ABA Standing Committee on Law and National Security breakfast in Washington, DC. This was the first time a sitting FISA judge had spoken in public about the court. Lamberth noted that all surveillance requests must "have the personal approval of the Attorney General." Even given that no application has been formally denied in recent years, the process has led to some applications being revised and others withdrawn prior to resubmission with additional information. Lamberth affirmed his belief that "the process is, in fact, working." The judge also commented on the Classified Information Procedures Act and his earlier association with the Clair George and Mohammed Ali Rezak cases.

Bazan, Elizabeth B. The U.S. Foreign Intelligence Surveillance Court and the U.S. Foreign Intelligence Surveillance Court of Review: An Overview. Washington, DC: Congressional Research Service, Library of Congress, 24 Jan. 2007. [http://www.fas.org/sgp/crs/intel/RL33833.pdf]

From "Summary": "This report examines the creation, membership, structure, and jurisdiction" of the FISC and the FISCR.

Eggen, Dan, and Susan Schmidt. "Secret Court Rebuffs Ashcroft: Justice Dept. Chided on Misinformation." Washington Post, 23 Aug. 2002, A1. [http://www.washingtonpost.com]

The Foreign Intelligence Surveillance Court "has refused to give the Justice Department broad new powers, saying the government had misused the law and misled the court dozens of times," according to a 17 May 2002 opinion released on 22 August 2002. The judges also said that authorities had "improperly shared intellignce information with agents and prosecutors handling criminal cases in New York on at least four occasions."

In the face of such previous problems, the FIS Court "found that new procedures [under the USA Patriot Act] proposed by Attorney General John D. Ashcroft in March would have given prosecutors too much control over counterintelligence investigations and would have effectively allowed the government to misuse intelligence information for criminal cases." See also, Philip Shenon, "Secret Court Says F.B.I. Aides Misled Judges in 75 Cases," New York Times, 23 Aug. 2002.

Strickland, Lee S. “Civil Liberties vs. Intelligence Collection: The Secret Foreign Intelligence Surveillance Act Court Speaks in Public.” Government Information Quarterly 20, no. 1 (2003): 1-12.

Leonnig, Carol D., and Dafna Linzer. "Spy Court Judge Quits In Protest: Jurist Concerned Bush Order Tainted Work of Secret Panel." Washington Post, 21 Dec. 2005, A1. [http://www.washingtonpost.com]

U.S. District Judge James Robertson has resigned from the Foreign Intelligence Surveillance Court. According to two sources, the resignation is "in protest of President Bush's secret authorization of a domestic spying program."

Aftergood, Steven. "Judge Walton Named to Foreign Intelligence Surveillance Court." Secrecy News (from the FAS Project on Government Secrecy), 24 May 2007. [http://www.fas.org]

The Chief Justice of the United States has appointed Judge Reggie B. Walton to the Foreign Intelligence Surveillance Court (FISC) effective 19 May 2007. "Judge Walton has been a U.S. District Judge for the District of Columbia since 2001.... He replaces Judge Claude M. Hilton of the Eastern District of Virginia," whose term on the FISC expired on 18 May 2007.

Pincus, Walter. "Judge Discusses Details of Work on Secret Court: He Takes Issue With NSA's Wiretaps." Washington Post, 26 Jun. 2007, A4. [http://www.washingtonpost.com]

At the American Library Association's convention on 23 June 2007, U.S. District Judge Royce C. Lamberth gave what "was probably the most revealing discussion to date of actions by the FISA court." Lamberth "was the court's chief judge from 1995 to 2002." In his remarks, Lamberth defended "the court's speed and efficiency" against administration charges that "its procedures were too cumbersome to meet counterterrorism needs in the post-9/11 world."

United Press International. "Roberts Names Chief of U.S. Spy Court." 14 Apr. 2008. [http://www.upi.com]

U.S. Supreme Court Chief Justice John Roberts Jr. has appointed Bruce Selya, a senior judge on the 1st U.S. Circuit Court of Appeals in Boston, to be the presiding judge over the Foreign Intelligence Surveillance Court (FISC). Selya "has been a member of the U.S. Foreign Intelligence Surveillance Court of Review since 2005."

Lichtblau, Eric. "Senate Approves Bill to Broaden Wiretap Powers." New York Times, 10 Jul. 2008. [http://www.nytimes.com]

"The Senate gave final approval on [9 July 2008] to a major expansion of the government's surveillance powers.... The measure, approved by a vote of 69 to 28,... includes ... legal immunity for the phone companies that cooperated in the National Security Agency wiretapping program [President Bush] approved after the Sept. 11 attacks.... [Bush] promised to sign the measure into law quickly....

"The measure gives the executive branch broader latitude in eavesdropping on people abroad and at home who it believes are tied to terrorism, and it reduces the role of [the Foreign Intelligence Surveillance Court] in overseeing some operations.... The legislation also expands the government's power to invoke emergency wiretapping procedures. While the N.S.A. would be allowed to seek court orders for broad groups of foreign targets, the law creates a new seven-day period for directing wiretaps at foreigners without a court order in 'exigent' circumstances if government officials assert that important national security information would be lost. The law also expands to seven days, from three, the period for emergency wiretaps on Americans without a court order if the attorney general certifies there is probable cause to believe the target is linked to terrorism."

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