Article III, section 1, of the U.S. Constitution provides that “the judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Congress created two special courts to oversee the activities of the U.S. intelligence community and to better protect the activities of Americans in 1978 by enacting the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. §§ 1801–1885c. While one special court, formally titled the Foreign Intelligence Surveillance Court but more commonly called the FISA court, has been discussed frequently, especially over the past five years, little has been said about how it operates. Even less known is the Foreign Intelligence Surveillance Court of Review, where appeals from the lower FISA court’s decisions may be taken.
Practicing before these specialty courts, with their distinctive procedures, presents challenges for litigators. The FISA courts are becoming more transparent after recent legislative reforms. The increased transparency should reveal to the bar and the public the care and discretion that imbues the work of the judges, attorneys, and other legal professionals in these tribunals as they seek to balance national security demands against the privacy of American citizens.
Litigation in these tribunals primarily involves the members of the nation’s intelligence community. Occasionally, private litigants who have received orders directing the disclosure of information or the provision of necessary technical assistance to acquire information may be involved. Private litigants also may appear, seeking more information on the FISA courts’ activities.
Before 2004, the intelligence community was supervised by the director of central intelligence, who also ran the Central Intelligence Agency (CIA). In 2004, the Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, 118 Stat. 3638, established the Office of the Director of National Intelligence (ODNI) to better unify and manage the efforts of the intelligence community. The director of national intelligence leads the intelligence community and serves as the principal intelligence advisor to the president. ODNI is an administrative and budget office that oversees the overall efforts of the intelligence community but does not itself possess any collection capabilities. That work falls to the 17 other intelligence community members, including the CIA—an independent agency—and agencies within the Department of Defense (including the National Security Agency (NSA), the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, and military intelligence units) and the Departments of Energy, Homeland Security, State, Treasury, and Justice (including the National Security Branch of the Federal Bureau of Investigation (FBI) and the Drug Enforcement Administration).
The intelligence community’s members make up a complex and highly technical information-processing network to inform our leaders and protect our national security, meaning that litigation before the FISA courts not only concerns classified information but often involves complex technological issues. As a result, judges sometimes require assistance and explanation of these complex issues by court-appointed amici curiae with the necessary technical expertise. See 50 U.S.C. § 1803(i)(2)(B) (allowing the presiding FISA court judge to appoint an individual or organization to serve as amicus curiae, including to provide technical expertise).
FISA was Congress’s attempt to create some boundaries for foreign intelligence investigations in the wake of the Church Committee’s study of accusations that the intelligence community was conducting unauthorized operations for both Democratic and Republican administrations inside and outside the United States. Final Report of the Select Committee to Study Governmental Operations with Respect to Intelligence Activities, S. Rep. No. 94-755 (1976). As originally enacted, FISA was designed to provide a process for intelligence agencies to seek a warrant for domestic surveillance of foreign powers and their agents.
The composition of the two courts to oversee the warrant processes and the appointing authority to select judges who serve on them are set forth in the statute. See 50 U.S.C. § 1803. The chief justice of the United States designates federal district court judges to serve as judges on the lower FISA court. Currently, there are 11 such judges. The judges serve for a nonrenewable seven-year term, which is staggered to maintain continuity on the court. By statute, the judges must represent at least seven of the 13 judicial circuit courts (including the D.C. and Federal Circuits), and three of the judges must live within 20 miles of the District of Columbia.
The chief justice also appoints three judges, selected from among the nation’s federal district and circuit courts, to sit for seven years on the FISA Court of Review to hear any appeals arising from decisions of the lower court. The federal government is permitted to take an appeal from a denial of a FISA application. Recipients of production orders directing them to provide information or render technical assistance to the intelligence community may also bring a challenge. See, e.g., 50 U.S.C. § 1861(f)(3).The lower FISA court can also certify “any question of law that may affect resolution of the matter in controversy that the court determines warrants such review” to the upper panel. 50 U.S.C. § 1803(j). Further appellate consideration is by writ of certiorari issued by the U.S. Supreme Court, just like review by the high court of most federal or state appellate decisions. So far as we are aware, the Supreme Court has not granted review in any case from the FISA Court of Review since it was created.
The Scope of FISA
FISA principally authorizes the federal government to engage in four types of investigative activity: (1) electronic surveillance, (2) physical searches, (3) the use of pen registers and trap-and-trace devices, and (4) the seizure of tangible things in connection with certain national security investigations. See 50 U.S.C. ch. 36. Electronic surveillance and physical searches must be directed at a foreign power or an agent of a foreign power. Pen registers and trap-and-trace devices, as well as orders compelling the production of tangible things, may be issued in support of investigations to protect against international terrorism or clandestine intelligence activities, or investigations to acquire foreign intelligence information not concerning a U.S. person.
The federal government conducts the same types of surveillance in general criminal matters using Title 18 authorities to issue what are often called Title III warrants. Like conventional Title III search and arrest warrant applications, FISA applications require an affidavit of probable cause to establish, among other things, that the subject of the investigation is a foreign power or an agent of a foreign power, and that “each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power.” 50 U.S.C. § 1804(a)(3). As is required to obtain a Title III warrant, FISA requires employing minimization procedures. These procedures are designed to minimize the acquisition and retention, and prohibit the dissemination, of non-publicly available information concerning unconsenting U.S. persons. Also like Title III warrants, FISA applications are considered ex parte by the FISA court judges, meaning that the only participants in the proceedings are the Department of Justice National Security Division attorneys presenting the applications.
FISA applications vary from Title III warrant applications in four key ways. First, the object of the probable cause inquiry is different. A Title III warrant application must show that there is probable cause to believe that an individual is committing, has committed, or is about to commit a particular offense. A FISA application must establish probable cause to believe (1) that the target of the surveillance is a foreign power or agent of a foreign power (which can include agents of foreign political organizations and groups engaged in international terrorism, as well as agents of foreign nations); (2) that each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power; and (3) that a significant purpose of the surveillance is to obtain foreign intelligence information.
It is debatable whether “probable cause” as used in FISA means the same thing as in the conventional criminal law context. While both FISA and Title III use the term without defining it—albeit with a different object—it is generally understood that FISA incorporates the traditional criminal law understanding of probable cause rather than a lesser “reasonable suspicion standard.” See David S. Kris & J. Douglas Wilson, National Security Investigations and Prosecutions § 11.5 (3d ed. 2019). “Probable cause” in the traditional criminal law context means a showing sufficient to convince a reasonable person that a crime is in the process of being committed, has been committed, or is going to be committed, while “reasonable suspicion” only requires circumstances that give rise to more than a bare, imaginary, or purely conjectural supposition. Even so, the question has never definitively been answered by the courts in the FISA context.
Second, FISA applications must be approved by the attorney general and must be certified by the president’s national security advisor or an equally senior designee such as the director or deputy director of the FBI, NSA, or CIA. Third, although FISA applications must detail the proposed minimization procedures, FISA orders do not require live monitoring as do Title III orders. Fourth, following the passage of the USA Freedom Act of 2015, Pub. L. No. 114-23, 129 Stat. 267, the FISA court must appoint an amicus curiae when it considers an application that presents a novel or significant interpretation of the law, “unless the court issues a finding that such appointment is not appropriate.” 50 U.S.C. § 1803(i)(2)(A). Such findings have seldom been made. In this way, the FISA courts are presented with both sides of the legal issue being considered.
FISA applications are generally presented by Justice Department attorneys from the Office of Intelligence within the National Security Division on behalf of the agency with primary investigative or intelligence-gathering authority over a particular matter. Justice Department attorneys first file a proposed application for an order, which is initially reviewed by legal advisors on the FISA court staff. The legal advisors often begin discussions with the Justice Department attorneys regarding the sufficiency of the probable cause showing and the scope of the requested order. The FISA court judge, after consulting his or her legal advisors, can approve or deny the application, or request additional modifications. About 20 to 30 percent of the time, the FISA judge requires more information or modifies the requested authorization before granting the final request submitted by the government. In the most recent annual report to Congress from the director of the Administrative Office of the U.S. Courts, the FISA court disclosed that it received 579 applications in 2020. After consideration by the court, 404 applications for orders were granted as submitted, 138 applications were granted after modifications, 24 were denied in part, and 13 applications were denied in full.
The entire process is somewhat like a federal grand jury investigation, with the Justice Department attorney and the requesting agency working interactively with the FISA court judge and legal advisors to obtain judicial process as prescribed in the enabling act. The process is distinct from a grand jury proceeding, where prosecutors alone determine what evidence to gather, however. The Justice Department attorney and the requesting agency must convince the judge that the FISA order sought complies with the probable cause requirements of the statute and the Constitution. The 11 judges examine the applications brought before each of them with a discerning eye and do not issue these orders lightly. Contrary to press reports, if unsatisfied with the government’s response to concerns, the FISA court will not hesitate to reject an application. The FISA court is not a “rubber stamp” for whatever the government wants to do.
In an emergency, the attorney general may authorize certain searches and surveillance without advance FISA court approval. These instances are rare. The attorney general must inform a FISA judge at the time of such authorization that the decision has been made to employ emergency surveillance, and the government must make application to the FISA court “as soon as practicable” but not more than seven days after the authorization. 50 U.S.C. § 1805(e)(1)(C)–(D). If the FISA court declines to issue an authorization order after the fact, the information obtained is deemed inadmissible in any proceeding, and any information concerning a U.S. person cannot be used without consent, unless the attorney general approves such use on the ground that the information “indicates a threat of death or serious bodily harm.” 50 U.S.C. § 1805(e)(5). FISA’s emergency authorization provision is modeled after a similar provision in Title III but is stricter because only the attorney general may give the emergency authorization and because a FISA judge must be notified immediately.
Targeted Surveillance Outside the United States
One particular area of FISA that has received a great deal of public attention is section 702. Section 702 contains a set of provisions that allows the government to conduct targeted surveillance of non-U.S. persons located outside the United States, with the compelled assistance of electronic communication service providers, to acquire foreign intelligence information. This provision was not part of FISA originally; it was added by the FISA Amendments Act of 2008, Pub. L. 110-261, 122 Stat. 2436. Prior to the amendment, this type of surveillance required that the government show on an individualized basis, for all non-U.S. person targets located overseas, the existence of probable cause to believe that the target was a foreign power or an agent of a foreign power. Given the technological advancements since FISA’s passage in 1978 and the tremendous scale and variation in worldwide telecommunications technology, such an approach became unworkable.
Under section 702, rather than issue individual orders, the FISA court reviews an annual certification submitted by the attorney general and the director of national intelligence that identifies categories of foreign intelligence targets. See 50 U.S.C. § 1881a. Section 702’s statutory restrictions and protections require the use of targeting procedures, minimization procedures, querying procedures, and acquisition guidelines. Targeting procedures aim to ensure that acquisitions target only non-U.S. persons outside the United States and do not acquire wholly domestic communications. Minimization procedures protect the incidentally acquired identities and nonpublic information of U.S. persons, and acquisition guidelines seek to ensure compliance with all the statutory limitations described above. Finally, querying procedures, added by Congress when it reauthorized section 702 in 2018, regulate how unminimized data collected under section 702 may be searched to retrieve information. The querying procedures must be “consistent with the requirements of the fourth amendment to the Constitution.” 50 U.S.C. § 1881a(f)(1)(A). The 2018 reauthorization also requires the annual public release of the minimization procedures that apply to the handling of U.S. person information incidentally collected under section 702.
Although, admittedly, the number of practitioners who will ever appear before them is small, the FISA courts are not now, nor have they ever been, secret. Their existence and operating procedures are set forth publicly in great detail in Title 50 of the U.S. Code. The FISA courts have access to and make decisions based on classified information, but the laws and processes that they follow are public. It is often the methods and means by which the information is obtained by the intelligence community that are classified, and for good reason. To illustrate the point, when it was publicly revealed that the U.S. intelligence community had the capability of monitoring international cell phone calls as part of the manhunt for Osama bin Laden, the al-Qaeda leader switched to human couriers, who proved to be far more difficult to track.
FISA Decision Transparency
Many misconceptions about the FISA courts stem from their unpublished decisions. FISA decisions were not published for almost 30 years after these specialty courts were first established because the sensitive factual scenarios underlying the applications rendered the decisions classified. Recent public policy adopted by Congress and embodied in the USA Freedom Act of 2015 has led the FISA courts to begin publishing in redacted or unclassified form as many opinions as possible. The judges who author them are trying their best to craft these decisions in a way that makes their legal reasoning clear without disclosing the factual basis that raised the issue. This can be a challenging task in opinion writing. The attorney general and the director of national intelligence also must now make available—to the extent possible—the decisions, orders, and opinions that contain novel or significant interpretations of the law.
Congress has also amended the FISA statute in other ways to increase transparency. The law now requires that the attorney general semiannually report to congressional oversight committees the types and number of surveillances conducted under FISA. A third party subject to a nondisclosure order accompanying a directive or order from the FISA court also is permitted to disclose semiannually the general type and number of orders received using certain predetermined ranges. Both FISA courts are making more frequent use of the appointment of precleared amici curiae, as that recent statutory reform made them available to provide counterarguments to those presented by the government. There are currently eight designated legal or technical amici with the requisite security clearances, who range from partners in premier law firms, to law and technology professors, former Department of Justice lawyers with experience in national security matters, and cybersecurity experts. The list of designated amici is publicly available on the courts’ website, https://www.fisc.uscourts.gov. In addition, the courts may appoint other amici or experts for technical assistance on a case-by-case basis, and outside groups or persons may petition the court to submit an amicus brief in cases of which they are aware, regardless of whether they are one of the eight designated amici.
As history has shown, Congress is continually reviewing and refining FISA’s procedures, some of which have built-in sunset provisions to ensure appropriate periodic review and debate between Congress and the executive branch. Notably, however, three provisions of FISA recently were allowed to sunset before Congress could reach agreement on their reauthorization.
First, the “business records” provision (section 215 of the USA PATRIOT Act of 2001) has reverted to its pre-2001 narrower form, now applying again only to entities that count as common carriers, public accommodation facilities, storage facilities, or vehicle rental facilities.
Second, part of the “roving wiretaps” provision (section 206 of the USA PATRIOT Act of 2001) has expired. Overall, the provision was written to handle the problem of easily disposable and replaceable “burner phones.” Section 1805(c)(1)(B), which is not subject to sunset, requires an electronic surveillance order to specify “the nature and location of each of the facilities or places at which the electronic surveillance will be directed, if known.” (Emphasis added.) Because some targets will quickly cycle through communication devices and accordingly may cycle through different communication service providers, the now-expired § 1805(c)(2)(B) allowed the government to request, and the court to issue, an order directing technical assistance in implementing the surveillance without having to pre-identify the entity providing that assistance. In other words, it relaxed the requirement to specify persons compelled to assist when “the actions of the target of the application may have the effect of thwarting the identification of a specified person.” 50 U.S.C. § 1805(c)(2)(B) (as in effect on March 14, 2020).
Third, the “lone wolf” amendment to the FISA definition of “agent of a foreign power” (section 6001 of the Intelligence Reform and Terrorism Prevention Act of 2004) has unfortunately been allowed to lapse. This provision stemmed from the activities of Zacarias Moussaoui, who came under suspicion before 9/11 based on his odd behavior while attending a flight school. There was reason to suspect him of being a foreign extremist who had entered the country to carry out a terrorist attack, but the FBI at the time lacked enough information to support a statutory showing that he was an agent of a foreign terrorist group, rather than just inspired by—but not an agent of—such a group. As a result, the FBI did not seek a FISA order to search his laptop prior to the fateful al-Qaeda hijacking of the commercial airliners on September 11, 2001. Under the “lone wolf” amendment, FISA had covered this stand-alone scenario in which the target is a non-U.S. person who engages in international terrorism or activities in preparation therefor.As Congress debates and the executive branch continues to negotiate over these and other provisions of—and potential refinements to—FISA, readers are encouraged to learn more about the operations of the FISA courts as they oversee the government’s surveillance activities under the statute. Although most practitioners will not have the opportunity to participate in or observe the courts’ work due to its classified nature, the FISA courts have posted their rules of procedure on their website. The clerk of the FISA courts also posts public filings on the website whenever possible, as well as copies of correspondence with, and annual reports to, Congress.
The FISA courts were created to provide an important check on executive power. That role is just as important today as it was in 1978, and the judges who serve on these courts take their constitutional and statutory oversight responsibilities very seriously. The executive branch agencies know this and appreciate that their determined efforts to protect the country from espionage and terrorist attack must comport with the fundamental principles embodied in our Constitution. The judges appointed to the FISA courts for this specialized duty understand that “in carrying out its national security mission, the government must simultaneously fulfill its constitutional responsibility to provide reasonable protections for the privacy of United States persons.” In re Directives Pursuant to Section 105B of Foreign Intelligence Surveillance Act, 551 F.3d 1004, 1016 (FISA Ct. Rev. 2008). The task is not always an easy one, but it is the judiciary’s duty “to hold that delicate balance steady and true.”