Saturday, August 13, 2011
Americas Secret Courts, Laws on Survelliance
Inside America's Secret Court: The Foreign Intelligence Surveillance
by Patrick S. Poole
In a highly restricted room inside the Department of Justice Building
in Washington D.C. resides a federal court that meets in complete
secrecy. Even though the rulings this secret court issues may result
in criminal charges, convictions and prison sentences for US
citizens, their writs and rulings are permanently sealed from review
by those accused of crimes and from any substantive civilian review.
This is the Foreign Intelligence Surveillance Court (FISC), which
considers surveillance and physical search orders from the Department
of Justice and US intelligence agencies. During the 20-year tenure of
the FISC the court has received over 10,000 applications for covert
surveillance and physical searches. To date, not a single application
has been denied.
The Foreign Intelligence Surveillance Act (FISA)<1> was passed in
1978, during the days of increased terrorist activity against
American citizens around the world. The Cold War and American
involvement in the Middle East raised fears both about increased
spying on US government, military and business facilities and
personnel and about terrorists planning attacks in the US and against
Americans overseas. In this atmosphere, federal law enforcement and
intelligence administrators requested Congress to increase
surveillance powers to combat these growing trends. The FISA statute
was also a regulative response to the allegations of domestic spying
by federal law enforcement and intelligence agencies during the 1960s
However, with the FISA legislation passed, the process was cloaked in
absolute secrecy. While few Americans are even aware of the court's
existence, the FISC routinely hears applications for surveillance and
physical searches from federal law enforcement and intelligence
agencies. The FISA court issues more surveillance and physical
search orders than the entire federal judiciary combined.
Many constitutional scholars and civil liberty advocates note that
the overly broad powers of the FISA statute and court authority are
in direct violation of the Fourth Amendment protections against
unreasonable searches and general warrants. With such a powerful
weapon against citizens' Constitutional liberties, many opponents of
the court argue that Congress should conduct extensive oversight of
the court. But congressional oversight of the FISA court is virtually
The only information required by FISA to be provided to congressional
oversight committees is the number of surveillance orders approved
each calendar year and brief semi-annual reports. The entire 1997
report on the FISC's activity totaled two paragraphs. But what those
brief annual reports do chronicle is the exponential rate of growth
of surveillance orders issued by the FISC.
Recent criminal cases proceeding from evidence gathered by FISA
surveillance orders have raised many questions regarding the
constitutionality of FISA searches and surveillance and the
assumption of enormous powers by federal law enforcement and
intelligence agencies. Defense attorneys for those charged for crimes
with evidence gathered under a FISA order maintain that the FISA
court stands as a "court of last resort" for zealous prosecutors
unable to obtain a criminal indictment from other federal courts.
Some of the orders approved by the FISC have proven to be
government "fishing expeditions" aimed at circumventing citizen's
Fourth Amendment protections against unwarranted searches.
Origins of the Court
With the collapse of the Nixon Administration following the Watergate
scandal, the Senate Select Committee to Study Governmental Operations
with Respect to Intelligence Activities (otherwise known as the
Church Committee) discovered that the federal government had been
engaged in widespread domestic surveillance for several decades. In
response, several members of Congress set about to devise a plan to
limit the surveillance power of federal law enforcement and
intelligence agencies. In the wake of the subsequent public outrage
and out of fear warrantless surveillance would be outlawed
altogether, President Ford supported the FISA bill to limit
the "inherent authority" of the President to conduct warrantless
surveillance in the interest of national security.
Prior to that time, most presidents claimed to have implicit
constitutional authority to approve warrantless surveillance for
national security purposes under the executive branch's
Constitutional power to conduct foreign policy. But that power had
been used by government agencies to justify domestic spying against
law-abiding anti-war demonstrators and many of the leaders of the
civil rights movement of the late 1960s despite First and Fourth
Amendment protections prohibiting such activity.
The FISA bill was a product of closed-door negotiations lasting
several months between legislators and the Justice Department.
Senator Edward Kennedy (D-MA), who had attempted to regulate the
power of warrantless surveillance in four different sessions,
sponsored the FISA legislation. The FISC concept was a compromise
between legislators who wanted the FBI and National Security Agency
(NSA), the only two agencies affected by the FISA statute, to follow
the standard procedure for obtaining a court order required in
criminal investigations and legislators. The federal agencies
believed that they should be completely unfettered in conducting
their foreign intelligence surveillance work inside US borders.
Hence, the FISC was born.<2>
FISA was approved by Congress and signed into law by President Jimmy
Carter on October 25, 1978. Executive Order 12139,<3> signed by
President Carter several months later, officially chartered the FISC.
The legislation established an authorization procedure for the FISC
to issue surveillance orders without probable cause. It also set up
a "minimization" procedure for communications by US citizens
inadvertently intercepted by the agencies. With the passage of FISA,
the NSA was bound for the first time to a process of judicial review
before initiating domestic surveillance operations.
The court consists of seven federal judges chosen from the federal
district courts by the Chief Justice of the Supreme Court; each
serves a non-renewable seven-year term. Membership of the court is
staggered so that a new member is brought in each year. Members are
chosen from different federal districts, however, at least one member
must come from a district court in the Washington D.C. area. Judge
Royce Lamberth, who is a member of the US District Court for
Washington DC, currently serves as the FISC Chief Judge.
A separate FISC Appeals Court composed of three members hears the
case for applications denied by the lower level of the court. To
date, the appeals court has never heard a case. The last resort that
the FISA statute provides for any surveillance application rejected
by the FISC Appeals Court is an appeal directly to the Supreme Court.
The FISC court conducts all of its hearings in a secret windowless
courtroom, sealed from the public by cipher-locked doors on the top
floor of the Department of Justice. It considers surveillance and
physical search applications that have been reviewed and forwarded by
the Office of Intelligence Policy and Review, which is the Department
of Justice's section that deals with foreign intelligence matters.<4>
All applications forwarded to the FISC must be reviewed and approved
by the Attorney General. If the FISC judge considering the
application believes that the request meets the standards of the FISA
statute, electronic surveillance can be approved for up to ninety
days for US citizens or a year for foreign nationals. The court also
hears requests for extensions, which are routinely granted.
The initial authorization of the court included only the power to
approve wiretapping and surveillance. After Janet Reno approved a
warrantless physical search of CIA spy Aldrich Ames' Arlington,
Virginia home in October 1993, the Department of Justice made a
request to Congress that the authority of FISC be expanded to include
physical searches. Congress obliged by including authorization for an
expansion of FISC powers in the Intelligence Authorization Act of
President Clinton implemented the new powers through Executive Order
12949.<5> Apart from giving the FISC physical search powers, the
executive order also authorized the Attorney General "to approve
physical searches, without a court order, to acquire foreign
intelligence information for periods up to one year, if the Attorney
General makes the certifications required by [FISA]."<6>
This expansion also included the power for evidence gathered in FISA
surveillance and searches to be used in criminal proceedings.
However, all information regarding the order and any evidence
obtained under the order are permanently sealed and classified "top
secret." The effect of this provision has been that US citizens are
being charged with crimes in federal court and not allowed to review
the evidence against them, nor are their attorneys permitted to see
the warrants that authorized the search.
The FISA statute requires the Attorney General to submit a report
each year to the Administrative Office of the US Courts, the Speaker
of the House of Representatives and the President Pro Tempore of the
Senate detailing the number of applications from the FBI and NSA
requesting surveillance/and or physical searches, the number of
orders approved and the number of applications modified or denied by
the FISC.<7> Table I displays the number of orders approved by the
FISC for each year since FISA was signed into law. To date, the
government enjoys a perfect record in regards to application
approvals, for no request has ever been rejected by the court.
Table I. FISA Surveillance and Physical Search Orders 1979-1997<8>
1979 1980 1981 1982 1983 1984 1985 1986 1987 1988
199 319 431 473 549 635 587 573 512 534
1989 1990 1991 1992 1993 1994 1995 1996 1997
546 595 593 484 509 576 697 839 749
As the above table shows, the sparing use of the court's authority in
the last few years of the Carter Administration is contrasted with
the increase of FISC orders during the Reagan Administration. It may
be reasonable to assume that this trend was a direct result of
terrorist activity targeting American citizens abroad during this
period of time. A slight decline in the number of court orders occurs
in 1987, mirroring a decrease in terrorist activity after the US
bombing of Tripoli, Libya in 1986. A general stabilization occurs in
the remainder of the Reagan Administration and throughout the Bush
Administration, which included the Persian Gulf War period.
However, a sharp increase in FISC orders has occurred since the
ascendance of the Clinton Administration, with no apparent return to
1980s levels. This frightening increase in the use of the FISC by the
present administration is compounded by the fact that in recent years
the FISC has approved more applications than the whole of the entire
federal judiciary. In 1996, the FISC approved 839 applications, while
all federal judges combined approved only 538 requests. During 1997,
federal judges approved 569 surveillance and search requests to
investigate criminal activity, while the FISC approved 749
applications for investigations without any criminal predicate.<9>
The intent behind the passage of the FISA legislation was to impose
limits and a review process upon warrantless surveillance and
searches conducted for "national security" purposes in light of the
numerous abuses by federal agencies against US citizens. But the
politicization and present use of the FISA process has resulted in
the erosion of numerous Constitutional rights and basic legal
procedures that have their roots in free societies dating back to the
Circumventing the Bill of Rights
The most troubling aspect of FISA surveillance and searches is that
they circumvent explicit Constitutional guarantees expressed in the
First, Fourth, Fifth and Sixth Amendments to the Constitution. The
First Amendment guarantees the right to free speech and to peaceable
assembly. However, under the FISA statute, a US citizen may be
subject to a FISC surveillance order for political statements and
views that are determined to be unpopular – yet legal – by unelected
government officials in violation of the First Amendment.
In addition, physical searches without reasonable cause are
specifically prohibited by the Fourth Amendment:
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.
But the expansion of the FISC by the Congress and the Clinton
Administration through the Intelligence Appropriation Act of 1995 and
Executive Order 12949 permits black bag fishing expeditions – without
cause. FISC physical search orders authorized by these legislative
and executive actions allow government agents to scour a suspect's
home, papers and effects indiscriminately and without reasonable
It is hard to imagine that our Constitution's framers, carrying with
them the fresh reminders of intrusive searches conducted by British
military and governmental personnel for British "national security"
interests, would have approved the activities allowed by FISA when
they ratified the Bill of Rights with its explicit prohibitions of
unreasonable, indiscriminate searches.
The Fifth Amendment right not to be compelled to act as a witness
against oneself is significantly harmed when those under surveillance
have full expectation of privacy in their conversations and personal
communications but subsequently have their conversations recorded and
analyzed by law enforcement and intelligence agencies. FISC orders
may be (and typically are) enacted without cause, and yet these
wrongfully acquired surveillances may be used in criminal trials.
This is one dimension to the "Catch-22" problem discussed earlier. If
surveillance is conducted with cause and criminal prosecution result,
the government should be required to meet the same Title III
surveillance requirements imposed upon all other law enforcement
efforts conducted on the federal, state and local level in order to
present that evidence in a criminal trial.
A final direct Constitutional concern is that a citizen's Sixth
Amendment rights to confront accusers, to review evidence against
him, and to legal counsel are frequently violated. In all of the
criminal trials involving FISC orders, evidence is sealed from review
from both the accused and their legal counsel. This is heightened
further by the requirement to keep this evidence from the view of
juries. In the case of Richard Johnson, the judge instructed the jury
that evidence against Johnson existed, and yet would not be presented
for "national security" reasons, requiring the jury to rely on
the "testimony" of the judge. This prevented Johnson's attorneys from
challenging evidence that was not available to them but was testified
to by the judge himself.
Evolution from Counterintelligence to Criminal Investigations
The stated intent and purpose of the FISC was to add oversight to
intelligence agency and law enforcement spying against US citizens
and to subject that spying to minimization procedures. It was
designed to conduct counterintelligence, not to gather evidence for
use in criminal trials. Any shift from using evidence for
intelligence purposes to criminal indictments raises serious
concerns, particularly when the evidence is being used against an
As a Washington Post article recently pointed out, "The reason the
FISA standard is constitutional is that the government is supposed to
use FISA surveillance not for criminal investigations but for
counterintelligence probes pursued under the president's authority to
conduct foreign policy."<10> And yet the use of FISA evidence
against US citizens in criminal trials is growing rapidly. To date,
over 90 criminal cases have resulted from evidence gathered under a
The attractiveness for law enforcement and intelligence agencies to
use the FISC to gather evidence for criminal trials is readily
apparent: No reasonable cause or Title III requirements are needed to
file an application for surveillance; evidence obtained cannot be
reviewed or challenged by the defense; and if no evidence can be
obtained, the secrecy of the FISA process prohibits the one subject
to surveillance from ever knowing about – let alone challenging – the
appropriateness of the court's order.
And yet entire criminal investigations are being conducted under FISC
orders. With the enormous power that the FISA process grants to the
government to circumvent explicit constitutional protections in a
criminal trial, the use of evidence gathered under a FISC order
should be heavily regulated by Congress and the courts or the
establishment of a requirement that evidence gathered for criminal
trials under an FISC orders must be forced to meet the Title III
No Adversarial Advocate
With the constitutional right to a jury and adequate legal counsel
effectively neutered by the secrecy requirements of the FISC, the
adversarial aspect on behalf of the accused is all but eliminated.
The initial court proceedings prior to the approval of an order by
the FISC also lack any adversarial element. When the Office of
Intelligence Policy and Review presents an application before the
FISC, the FISC justices should rigorously review the application in
light of citizen's unambiguous Constitutional guarantees. Instead,
the court is little more than a rubberstamp for federal agencies.
Even if the court intended to review these applications with a
careful eye on the Constitution, the secrecy element allows the FBI
and the NSA to control what information is presented to the court for
their consideration. With the government holding not only the
proverbial cards but also owning the casino, the introduction of an
adversarial citizen's advocate into the FISC proceedings is a needed
measure to ensure that the executive agencies and the court itself
are always reminded that their power is extra-constitutional and
inherently prone to abuse.
No Congressional Oversight
Congressional oversight of the FISC to date has been lax to say the
least. Last year the FISC presiding judge, DC District Court Justice
Royce Lamberth, delivered a speech to the American Bar Association's
Standing Committee on Law and National Security – the first time that
a sitting FISC judge has spoken publicly on the workings of the
FISC.<12> When addressing questions following his speech, he was
asked what oversight Congress gave the court, he
responded, "Apparently, in the past there has been none. We provide
an annual report on some numbers and so on that the Administrative
Office of the US Courts provides to Congress." There appears to be
little oversight from congressional intelligence committees as well:
I was asked by the chief counsel of the Senate Intelligence to come
up in December (1996) and meet with the staff in preparation for
possible oversight hearings, and I did volunteer to appear, and I was
told at the time this was the first time a judge had ever appeared,
apparently since right about the [time of the] creation of the court.
I think the first chief judge might have gone up for an oversight
hearing a year or so into the court, and I think that no other judge
on the court has ever gone up until I'm going in – I think it was
either November or December.<13>
Pressed further about his thoughts on congressional oversight, he
later said that "How we decide cases…there's a separation of powers
problem about judges appearing before Congress and being questioned
before Congress, so there are some limits."<14>
For the presiding judge of America's most secret court, who is
empowered to circumvent explicit Constitutional protections under the
cloak of complete secrecy, to infer that the special nature of this
court does not merit some greater degree of oversight by elected
officials should be disconcerting to every American citizen.
Defining "National Security"
One of the major defenses for the FISC is the ambiguous use of the
term "national security." Some have argued that the protection that
the FISC provides from terrorists and foreign spies is in the best
interest of national security. But would most Americans agree that
the use of a top secret court to gain economic information and data
for political party contributors – a current policy of the Clinton
Administration and the present practice of the FISC [ed: detailed in
a Free Congress Foundation Special Report on the FISC]– be
categorically in the best interests of national security? Historic
precedent would indicate that it would not.
But further, should citizens be required to exchange their
constitutional freedoms and protections in deference to an expansion
of government power for the interests of "national security?"<15> As
Benjamin Franklin once said, "They that can give up essential liberty
to obtain a little temporary safety deserve neither liberty nor
Some of America's most eminent jurists have also warned against
pitting alleged "national security interests" against the
Constitution. As the late Supreme Court Justice William Brennan said
in the Brown v. Glines decision, "The concept of military necessity
is seductively broad, and has a dangerous plasticity. Because they
invariably have the visage of overriding importance, there is always
a temptation to invoke security `necessities' to justify an
encroachment upon civil liberties. For that reason, the military-
security argument must be approached with a healthy skepticism: its
very gravity counsels that courts be cautious when military necessity
is invoked by the Government to justify a trespass on First Amendment
The Rubberstamp Court
Those actively involved with the court deny the accusation that the
FISC has turned into a rubberstamp court. Judge Lamberth, the current
chief judge of the FISC, in his comments to the American Bar
Association last year said, "… I bristle at the suggestion in some
quarters that we're rubber stamps for the government because no
applications have been formally denied in recent years. Some have
been revised. Some have been withdrawn and resubmitted with
additional information, and the process is, in fact, working."<17>
The agencies that rely on the FISC are also protective of their
perfect record before the FISC. As the current head of the Justice
Department's Office of Intelligence Policy and Review recently
wrote, "Given these rigorous standards and multiple layers of
scrutiny, it's not right to conclude that the government's track
record in getting FISA applications approved means that the FISA
court is a rubber stamp."<18>
And yet the fact remains that FISC has been nothing but a rubberstamp
court. Despite the claims of these FISC insiders that the court is
independent and objective, the only application that the FISC has
rejected in their entire history was done at the request of the FBI
and the NSA – the applicants – to demonstrate in 1981 that the FISC
had no power to issue physical searches.<19> Congress and President
Clinton eventually granted that power in 1995 after the Aldrich Ames
In the 10,000+ applications that the FISC has considered, it has
enthusiastically approved the methodology and argumentation of the
government in every single case. Even their colleagues on the federal
bench muster up the courage once or twice a year to deny a government
application for Title III wiretap applications. But the FISC has
never seen fit to once in twenty years to oppose the virtual torrent
of applications requesting surveillance and black-bag jobs against US
citizens without any probable cause. This makes the protestations of
Judge Lamberth and the FBI ring hollow, indeed.
An inherent vulnerability of free and democratic societies is that
they are subject to a greater degree of terrorism and espionage
activity because of the freedoms and liberties enjoyed by the
citizenry. The bridle on government power allows for the criminal and
counterintelligence elements to maneuver around the hue of
constitutional protections. But the hallmark of free societies is
that deference is given to the citizens, not the government.
The statist political philosophy that justifies the existence of an
organization like the Foreign Intelligence Surveillance Court has
been tested and tried on the crucible of history. It was the threat
of such a process that led the constitutional Framers to enact the
Bill of Rights to prevent the government from using such a judicial
vehicle against the public. The numerous protections articulated in
the Constitution and the Bill of Rights were expressly designed to
prevent the gross judicial abuses of the British government Star
Chamber under King George the Third – abuses and powers eerily
similar to those currently granted by Congress and the Presidency to
No free society has ever been able to survive the rapid expansion of
government power seen in our current political atmosphere. Nor has a
government that has whet its appetite on unbridled power been able to
satiate its hunger for more – more power, more taxes, more
subservient citizens. This pattern of secret power – once its
effectiveness has been proven – quickly finds replication, as can be
seen in the 1995 establishment of another secret court by Congress
and the Clinton administration – the Alien Terrorist Removal Court.
Free societies hang in a precarious balance. Very little is actually
needed to tip the societal scales in favor of anarchy or tyranny. The
present political course of our country seems to indicate that our
future will be the latter. The operation of the FISC is merely a
symptom of the larger statist infection that has reached pandemic
levels in our political system. Twenty years of experience with the
FISC has demonstrated that what began as a restraint upon unlimited
search and surveillance powers has fallen prey to the same philosophy
and practice that has continued the erosion of our liberties. The
FISC has become a political weapon against the citizenry, and for the
safety and protection of our country its reign must be overthrown.
1) 50 USC Sec. 1801, et. seq.
2) James Bamford, The Puzzle Palace: A Report on America's Most
Secret Agency, Penguin Books, 1983, pp. 462-465.
3) 44 FR 30311; May 25, 1979.
4) Jim McGee and Brian Duffy, "Someone to Watch Over Us," Washington
Post Magazine, June 23, 1996, p. W09.
5) Executive Order 12949, 60 FR 8169, Feb. 13, 1995.
6) Ibid., Section 1.
7) 50 USC Sec. 1807.
8) Based on the Annual Foreign Intelligence Surveillance Act Reports
to Congress, 1979-1997.
9) Table 7, "Summary Report on Authorized Intercepts Granted Pursuant
to 18 U.S.C. 2519 for Calendar Years 1987 – 1997," 1997 Wiretap
Report, Administrative Office of the US Courts and the 1996 and 1997
Annual Foreign Intelligence Surveillance Act Report to Congress.
10) Benjamin Wittes, "The Catch-22 Law," Washington Post, April 21,
1998, page A21.
11) Fran Fragos Townsend, "Limits on Counterespionage," Washington
Post, May 27, 1998, p. A17. Ms. Fragos Townsend is currently the
Director of the Justice Department's Office of Intelligence Policy
and Review that reviews and forwards all surveillance applications to
12) The speech and the question/answer session were reprinted in
their entirety: Intelligence on the FISA Court, Legal Times, April
14, 1997, pp. 18-20.
13) Ibid., p. 20.
15) Timothy Maier, "Snooping on Allies Embarrasses U.S.," Insight
Magazine, October 20, 1997.
16) 444 U.S. 348 (1980).
17) Intelligence on the FISA Court, p. 18.
18) Limits on Counterespionage, p. A17.
19) Americo R. Cinquegrana, The Walls (and Wires) Have Ears: The
Background and First Ten Years of the Foreign Intelligence
Surveillance Act of 1978, 137 U. Pa. L. Rev. 793, 823.