Your Privacy and the FISA Court

Over the past two months the truly dominant news headline has been centered around Edward Snowden, the former federal contractor who leaked classified top-secret information about the NSA surveillance programs.  While many Americans have accepted that some forms of digital surveillance necessary for national security purposes, the scope of the NSA programs came as a shock to many.  Within a few days, we learned the federal government currently has surveillance programs that sift through the records of Verizon customers and are engaged in data mining from major tech companies, like Google and Apple.  Below is a clip from a CNN interview where host Piers Morgan and Newt Gingrich engage in an early debate about the controversial programs. 

Although many Americans already assumed the government to be engaged in activity like this, others were taking to the Internet and cable news to vilify the programs and label them as illegal.  One of the key talking points for those against the NSA programs centered around the illegality and unconstitutionality of the programs, which is certainly an understandable position.  However,  regardless of one's personal belief on government surveillance, the reality is that the federal government took all necessary steps currently required to ensure the surveillance programs were legal and approved by a federal court.  What court approved these search warrants and affidavits?  Why is there no court opinion where the public can read the legal explanation by the judges?  The answer is simple.  The NSA phone and data mining programs were approved in totality by the FISA Court, the (Foreign Intelligence Surveillance Court).  The purpose of this blog post is not to argue for or against the NSA programs, but rather to discuss the FISA Court.

The FISA Court was established by Congress in 1978 under the Foreign Intelligence Surveillance Act which created the FISA Court and allows for warrantless wiretapping, pending approval by the 11 judges of the FISA Court.  Congress is tasked with establishing the inferior courts of the judiciary under Article III Section 2 of the Constitution, and in 1978 Congress created the FISA Court in an effort to combat perceived threats to U.S. national security.  The FISA Court is unique in its authority, construct, and procedure which is where much of the controversy stems from.  According to the Foreign Intelligence Surveillance Act the Chief Justice of the Supreme Court, currently John Roberts, selects 11 judges from a pool of current federal judges from Appeals and District Courts across the country.  This is extremely unique because all other federal judges are appointed by the President and confirmed by the Senate, neither of which apply to the FISA Court.  

Congress has amended the original law several times, especially following 9/11.  Members of Congress applied extra levels of secrecy to the court because of the nature of the sensitive national security information.  The court has no obligation to make public their opinions or rulings, which means the public can never read the legal justifications from the 11 judges.  One final aspect that sets the FISA Court apart is the appellate division of the court, the Foreign Intelligence Surveillance Act Court of Review.  Typical federal appellate courts hear arguments from both sides, while the FISA Court of Review only hears from the Justice Department and never from any of the individuals being surveilled. 

The FISA Court is a controversial aspect of the Judicial Branch and has played a major role in the NSA surveillance headlines dominating the news cycle.  There are numerous cases where the FISA Court has played a critical role in protecting the nation from numerous threats, but the secrecy surrounding the court is what dominates people's view.  What is your take on the FISA Court?