The media frequently mentions the “FISA Courts” while reporting on National Security Agency (NSA), FBI and other intelligence activities that may involve US citizens.
Below is a brief description of the court’s purpose and how it works.
The Federal Intelligence Surveillance Courts are commonly referred to as FISA Courts – because they were created by the FISA legislation.
The judges of the FISA Court hear and rule on requests for warrants to allow domestic national law enforcement and counter-intelligence agencies to conduct electronic surveillance of a US citizen who they claim could be or could become an agent of a foreign government or non-state actors (terrorists).
FISA Court judges are chosen by the Chief Justice of the Supreme Court from the various US District Courts around the nation and serve a 7 year term before returning to US District Court responsibilities.
Under the law, the judges are bound by law to apply a much higher standard than a normal criminal surveillance warrant. Criminal courts require a reasonable investigative suspicion to prove the need for the warrant. The FISA Court judge must see concrete evidence that a surveillance warrant against an individual is justified.
To further protect the rights of the individual suspect, FISA warrants expire after 90 days. If the FBI or the National Security Agency (NSA) applies for a renewal of a surveillance warrant, they must show the judge that the expiring warrant got results – i.e. added new evidence to the initial affidavit to the court.
FISA judges are not perfect people, either. It is possible that they make mistakes.
There have been a number of instances in which Congress has stepped in to place limits on the FISA Courts.
In 2002 and 2005 when the Bush Administration went beyond the letter of the law in pursuing terror suspects Congress stepped in limit NSA surveillance activities.
Similarly, in 2011 Congress felt that the Obama Administration had abused its power when it secretly authorized the National Security Agency to conduct bulk searches of the “meta-data” of US citizen’s phone records.
While partisan members of the Intelligence Committees expressed concern over the “excesses” of these previous administrations, the investigation of the alleged abuse and the drafting of corrective legislation was performed thoughtfully and in a bi-partisan manner committed to properly protecting the privacy of American citizens – while, also, protecting the national security.