Return to FISA Table of ContentsUnder the Foreign Intelligence Surveillance Act (FISA) of 1978 [50 U.S.C. 1803(a)], applications for what are essentially search warrants to conduct electronic surveillance within the United States of persons who are agents of foreign powers are heard by a special court -- the Foreign Intelligence Surveillance Court (FISC). The FISC was originally comprised of seven Federal district judges designated by the Chief Justice. In 2001, the U.S.A. Patriot Act (section 208) amended the FISA, increasing the number of FISC judges from seven to eleven. A three-member court of review -- the Foreign Intelligence Surveillance Court of Review (FISCR) -- hears appeals of denials of applications. The Intelligence Authorization Act for 1995 expanded the FISA procedures to physical searches. For the FISC beginning, see Fred F. Manget, "Another System of Oversight: Intelligence and the Rise of Judicial Intervention," Studies in Intelligence 39, no. 5 (1996): 43-50.
In calendar year 1994, the FISC "approved 576 government applications for domestic electronic surveillance of suspected foreign agents..., up from 509 approvals in 1993, according to annual reports obtained from the Justice Department....
"The integrity of the little-known FIS Court and its utility as an oversight body have been called into question because of the Court's failure to ever deny a single application for electronic surveillance. (The Court has approved a total of 8,130 surveillance actions between 1979 and 1994.) Government officials say the Court's 100% approval rate is due to careful pre-screening of applications in the executive branch, which they say eliminates the more questionable cases.... And in fact, Justice Department officials have been criticized recently by some in the intelligence community for refusing to forward certain proposed surveillance applications to the FIS Court....
"[I]n the wake of the Aldrich Ames case, Congress [has] expanded the scope of FISA to include, for the first time, physical searches as well as electronic surveillance.... The President implemented the revised law in executive order 12949 last February." Excerpted from Secrecy & Government Bulletin, Sep. 1995, put out by the Federation of American Scientists (FAS).
The Attorney General's report on FISA actions for 1999 notes that of the "886 applications ... made for orders and extensions of orders ... [n]o orders were entered which modified or denied the requested authority."
Yearly editions from 1996 to 2004 of the Attorney General's "Annual Foreign Intelligence Surveillance Act Report to Congress" are available at http://www.usdoj.gov:80/oipr/readingroom/oipr_records.htm.
On 16 April 2001, the U.S. Supreme Court dismissed a petition filed on behalf of Theresa M. Squillacote and Kurt A. Stand, who were convicted in 1998 of conspiring to commit espionage. The FBI "requested and received 20 separate FISA authorizations for surveillance" during the investigation of Squillacote and Stand. The petitioners' attorneys "were never permitted to see the underlying documentation that the government used to justify the surveillance." The government position was that "all required procedures were followed at all times,... that access to the FISA applications by the defendants' attorneys was correctly denied on national security grounds[,]... that the investigation and prosecution of Squillacote and Stand survived multiple layers of judicial review and that their conviction was upheld on appeal." Steven Aftergood, "Supreme Court Rebuffs FISA Challenge," Secrecy News (from the FAS Project on Government Secrecy), 23 Apr. 2001. The December 2000 petition, the government's March 2001 reply, and the petitioners' reply to the government are available at: http://www.fas.org/irp/ops/ci/squill/index.html.
The annual report to Congress for calendar year 2001 on implementation of FISA states that 932 applications were made to the FISC for electronic surveillance and physical search. All were approved. Text of the report is available at: http://www.fas.org/irp/news/2002/04/fisa01.html.
The annual report to Congress for calendar year 2002 on implementation of FISA states that 1,228 applications were made to the FISC for electronic surveillance and physical search. Of this number, 1,226 were approved initially and two others were approved after review by the FISCR. Text of the report is available at: http://www.fas.org/irp/agency/doj/fisa/2002rept.html.
The annual report to Congress for calendar year 2003 on implementation of FISA states that 1,727 applications were made to the FISC for electronic surveillance and/or physical search. Of this number, 1,724 were approved, in whole or in part, and four were denied. Text of the report is available at: http://www.fas.org/irp/agency/doj/fisa/2003rept.pdf.
The annual report to Congress for calendar year 2004 on implementation of FISA states that 1,758 applications were made to the FISC for electronic surveillance and/or physical search. Of this number, 1,754 were approved. Three of the 1,758 applications were withdrawn by the Government prior to the Court ruling on the applications. One of the three applications was resubmitted, which was approved by the Court as a new application. "The Court did not deny, in whole or in part, any application submitted by the Government in 2004.... [T]he Court made substantive modifications to the Government's proposed orders in 94 applications presented to the Court." Text of the report is available at: http://www.fas.org/irp/agency/doj/fisa/2004rept.pdf.
The annual report to Congress for calendar year 2005 on implementation of FISA states that 2,074 applications were made to the FISC for electronic surveillance and/or physical search. Two of the applications were withdrawn by the Government prior to the Court ruling on them. One of these applications was resubmitted, which was approved by the Court as a new application. "During calendar year 2005, the FISC approved 2,072 applications for authority to conduct electronic surveillance and physical search. The FISC made substantive modifications to the Government's proposed orders in 61 of those applications. The FISC did not deny, in whole or in part, any application filed by the Government during calendar year 2005." Text of the report is available at: http://www.fas.org/irp/agency/doj/fisa/2005rept.html.
The 2006 membership of the FISC and the FISCR is available at: http://www.fas.org/irp/agency/doj/fisa/court2006.html.
The annual report to Congress for calendar year 2005 on implementation of FISA states that 2,181 applications were made to the FISC for electronic surveillance and/or physical search. Five of the applications "were withdrawn by the Government prior to the FISC ruling on them. The Government later resubmitted one of the withdrawn applications as a new application, which was approved by the FISC. During calendar year 2006, the FISC approved 2,176 applications for authority to conduct electronic surveillance and physical search. The FISC made substantive modifications to the Government’s proposed orders in 73 of those applications. The FISC denied one application in part filed by the Government during calendar year 2006." Text of the report is available at: The court approved 2,176 applications, making substantive
modifications to 73 of them, and denying one, in part.
http://www.fas.org/irp/agency/doj/fisa/2006rept.pdf.
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