It is a court whose actions may result in criminal charges against Americans. However, this court meets in secret, its rulings are kept secret even from those who are accused of crimes, it authorizes more wiretaps and surreptitious physical searches than the rest of the entire federal judiciary, and you can be its target even if you are not suspected of any criminal activity yourself for example, you may be targeted if you happen to work for the same office as a suspected spy or if you belong to any organization suspected of being linked to “terrorists. ? The vast majority of persons whose phones and homes are bugged as a result of its actions, or whose homes are broken into and searched, are unaware of what happened. This is, in effect, the Top Secret Government’s Supreme Court.
The Foreign Intelligence Surveillance Act (FISA) of 1978 was partly a response to widespread revelations that the federal government, especially the FBI and CIA, had for years been engaged in widespread domestic surveillance, including wiretaps and physical entries (remember Watergate? ).
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Civil rights and antiwar organizations, and their leaders, had been frequent targets of such surveillance. FISA was an attempt to curb such abuses and restrict surveillance activities to legitimate cases involving foreign espionage; all such surveillance activities would require a warrant and be subject to approval by a panel of judges serving on a “FISA Court. ? Originally, the FISA Court could only authorize electronic surveillance for the purpose of information gathering. Its powers have now been expanded to include surreptitious physical entry and searches, and evidence gathered can now be used in criminal prosecutions neither was contemplated when FISA was passed into law.
A warrant request to the FISA Court does not require the government to state a probable cause for the surveillance or search. The subjects of the warrant are not notified. Any evidence produced against someone as a result of a FISA warrant is classified and cannot be re- viewed or challenged by the subject or defense attorneys. The very fact that one is the target of surveillance under FISA is likewise a secret unless the individual is eventually indicted or called to testify. You may be caught in a FISA sweep even if you are not suspected of any crime yourself. For example, in 1988 Vernon Bellecourt, Bill Means, and Bob Brown were called before a grand jury investigating a group called the Peoples Committee for Libyan Students; it turned out that the subpoenas issued to them were the result of them having each made a phone call to a person who was a member of that group, and those phone calls were intercepted under a FISA warrant.
History: The original Foreign Intelligence Surveillance Act was introduced in Congress in 1976. It was sponsored by Senator Ted Kennedy and endorsed by President Gerald Ford. After several modifications, President Jimmy Carter eventually signed the bill into law in 1978. For the first time, FISA required agencies like the National Security Agency (NSA) to obtain a warrant through judicial review before conducting any electronic surveillance related to espionage in the United States. However, FISA made significant concessions to the NSA, CIA, and FBI. Traditional applications for warrants to conduct electronic eavesdropping (such as those targeting organized crime figures) require presenting evidence to establish probable cause that a crime is being committed. Under FISA, that test is thrown out the window when the surveillance is needed on the grounds of “national security interests. ? However, the term “national security interests” is nebulously defined in FISA; it was written that way so judges could have wide latitude in interpreting it.
The FISA Court was not part of the original FISA legislation. It was created in 1979 when President Carter issued executive order 12139. In his order, Carter declared the court was to consist of seven federal judges, each serving a single, non-renewable seven-year term. Membership is staggered so that one member is replaced each year. Members are chosen from the different federal judicial districts, although one member must come from the Washington, DC federal district court. The executive order also established a separate FISA appeals court to hear any appeals of warrant requests denied by the seven-member court.
The Attorney General must approve each application to the FISA Court for a warrant. Approved warrants authorize surveillance of U.S. citizens for 90 days and one year for foreign nationals; all requests to date for extensions of these time periods have been granted.
Expansion of FISA Powers: In 1995, Congress passed the Intelligence Authorization Act that greatly expanded the scope of FISA. The original act did not authorize physical entries to conduct physical searches, but the new legislation did. Further, the 1995 legislation also allowed FISA surveillance and searches to be used to gather information for criminal prosecutions instead of just for information. However, all information gathered under FISA surveillance or search would be classified and kept from the court record and defendant(s). This meant, for example, that U.S. citizens charged with crimes based upon evidence gathered under FISA, and their attorneys, could not review the evidence against them or see the warrant authorizing the search and surveillance. The evidence is also kept from the jurors but it can be used against the defendant at trial.
An example of such a Kafkaesque scenario took place during the trial of Richard Johnson, a Boston-area radar engineer convicted of “possession of contraband in aid of foreign insurgents. ? Johnson was accused of helping to design a fuse to be used in anti-helicopter missiles by the Irish Republican Army. Johnson had been the target of a FISA wiretap prior to his arrest. At Johnson’s trial, the presiding judge told the jury that evidence against Johnson existed but could not be presented to them because of national security reasons, and that the jury would have to rely upon the judge’s “testimony” that such evidence indeed existed! Not only were Johnson's attorneys unable to examine this evidence for themselves, they could not even challenge the judge’s assertion that it existed.
Getting a Look Inside: Dream on!
Unusual Fact: The FISA Court can issue search warrants based upon “national security interests” instead of requiring the agency requesting the warrant to state a “probable cause” for the search. But doesn't that explicitly violate the Fourth Amendment to the U.S. Constitution, which says:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. ?
Guess what it sure as hell does violate the Fourth Amendment! But don't bother complaining to the Supreme Court. The Chief Justice appoints the members of the FISA Court, so the Supreme Court is already well aware of this shitcanning of the Constitution and, apparently, they don't care.
Getting There: The FISA Court meets in a secure room on the top floor of the Department of Justice building, 950 Pennsylvania Avenue, in Washington. The room is windowless and secured from unauthorized access.
Roads to Foreign Intelligence Surveillance Act (FISA) Court, Washington