The FISA Court and Foreign Intelligence Surveillance Act

What the Secretive Court Does and Who the Judges Are

George W. Bush speaks about the FISA Act.
President George W. Bush makes a statement about the Foreign Intelligence Surveillance Act on the South Lawn of the White House in March 2008. Brooks Kraft LLC/Corbis via Getty Images

The FISA court is a highly secretive panel of 11 federal judges whose primary responsibility is to decide whether the U.S. government has enough evidence against foreign powers or individuals believed to be foreign agents to allow for their surveillance by the intelligence community. FISA is an acronym for the Foreign Intelligence Surveillance Act. The court is also referred to as the Foreign Intelligence Surveillance Court, or FISC.

The federal government cannot use the FISA court to "intentionally target any U.S. citizen, or any other U.S. person, or to intentionally target any person known to be in the United States," though the National Security Agency has acknowledged it inadvertently collects information on some Americans without a warrant in the name of national security. FISA, in other words, is not a tool for combating domestic terrorism but it has been used in the post-September 11th era to gather data on Americans.

The FISA court adjourns in a "bunker-like" complex operated by the U.S. District Court on Constitution Avenue, near the White House and Capitol. The courtroom is said to be soundproof to prevent eavesdropping and the judges do not speak publicly about the cases because of the sensitive nature of national security.

In addition to the FISA court, there is a second secret judicial panel called the Foreign Intelligence Surveillance Court of Review whose responsibility to oversee and review the decisions made by the FISA court.

The Court of Review, like the FISA court, is seated in Washington, D.C. But it is made up of only three judges from the federal district court or appeals court.

Functions of the FISA Court 

The FISA court’s role is to rule on applications and evidence submitted by the federal government and to grant or deny warrants for “electronic surveillance, physical search, and other investigative actions for foreign intelligence purposes.” The court is the only one in the land that has the authority to allow federal agents to conduct “electronic surveillance of a foreign power or an agent of a foreign power for the purpose of obtaining foreign intelligence information,” according to the Federal Judicial Center.

The FISA court requires the federal government to provide substantial evidence before it grants surveillance warrants, but the judges rarely ever turn down applications. If the FISA court grants an application for government surveillance, it also limits the scope of the intelligence gathering to a specific location, telephone line or email account, according to published reports. 

"FISA has since its enactment been a bold and productive tool in this country’s fight against the efforts of foreign governments and their agents to engage in intelligence-gathering aimed at the U.S. government, either to ascertain its future policy or to effect its current policy, to acquire proprietary information not publicly available, or to engage in disinformation efforts," wrote James G. McAdams III, a former Justice Department official and senior legal instructor with the Department of Homeland Security's Federal Law Enforcement Training Centers.

Origins of the FISA Court

The FISA court was established in 1978 when Congress enacted the Foreign Intelligence Surveillance Act. President Jimmy Carter signed the act on Oct. 25, 1978. It was originally intended to allow for electronic surveillance but has seen been expanded to include physical searches and other data-collection techniques.

FISA was signed into law amid the Cold War and a period of deep skepticism of the president after the Watergate scandal and disclosures that the federal government used electronic surveillance and physical searches of citizens, a member of Congress, congressional staffers, anti-war protesters and civil rights leader Martin Luther King Jr. without warrants.

"The act helps to solidify the relationship of trust between the American people and their government," Carter said in signing the bill into law. "It provides a basis for the trust of the American people in the fact that the activities of their intelligence agencies are both effective and lawful. It provides enough secrecy to ensure that intelligence relating to national security can be securely acquired, while permitting review by the courts and Congress to safeguard the rights of Americans and others."

Expansion of FISA Powers

The Foreign Intelligence Surveillance Act has been expanded beyond its original scope several times since Carter placed his signature on the law in 1978. In 1994, for example, the act was amended to allow the court to grant warrants for the use of pen registers, trap and trace devices and business records. Many of the most substantive expansions were put in place after the terrorist attacks of Sept. 11, 2001. At the time, Americans indicated a willingness to trade some measures of freedom in the name of national security.

Those expansions include:

  • The passage of the USA Patriot Act in October 2001. The acronym stands for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism. The Patriot Act broadened the scope of the government's use of surveillance and allowed the intelligence community to act more quickly in wiretapping. Critics including the American Civil Liberties Union, however, pointed out the allowed the government to obtain the personal records of ordinary Americans from libraries and Internet Service Providers even without probable cause.
  • The passage of the Protect America Act on August 5, 2007. The law allowed the National Security Agency to conduct surveillance without a warrant or approval from the FISA court on American soil if the target was believed to be a foreign agent. "In effect," wrote the ACLU, "the government may now scoop up all communications coming into or out of the United States, as long as it is targeting no one American in particular and the program is “directed at” the foreign end of the communication.  Whether the target or not, American phone calls, emails and internet use will be recorded by our government, and without any suspicion of wrongdoing. 
  • The passage of the FISA Amendments Act in 2008, which granted the government the authority to access communication data from Facebook, Google, Microsoft and Yahoo. Like to Protect America Act of 2007, the FISA Amendments Act targeted non-citizens outside of the United States but concerned privacy advocates because of the likelihood average citizens were being watched without their knowledge or a warrant from the FISA court.

Members of the FISA Court

Eleven federal judges are assigned to the FISA court. They are appointed by the chief justice of the U.S. Supreme Court and serve seven-year terms, which are nonrenewable and staggered to ensure continuity. FISA Court judges are not subject to confirmation hearings such as those required for Supreme Court nominees.

The statute that authorized the creation of the FISA court mandates the judges represent at least seven of the U.S. judicial circuits and that three of judges live within 20 miles of Washington, D.C., where the court sits. The judges adjourn for one week at a time on a rotating basis

The current FISA Court judges are:

  • Rosemary M. Collyer: She is the presiding judge on the FISA court and has been a U.S. District Court judge for the District of Columbia since being nominated to the federal bench by President George W. Bush in 2002. Her term on the FISA court began May 19, 2009, and expires March 7, 2020.
  • James E. Boasberg: He has been a U.S. District Court judge for the District of Columbia since being nominated to the federal bench by President Barack Obama in 2011. His term on the FISA court began May 19, 2014, and expires March 18, 2021.
  • Rudolph Contreras: He has been a U.S. District Court judge for the District of Columbia since being nominated to the federal bench by Obama in 2011. His term on the FISA court began May 19, 2016, and expires May 18, 2023.
  • Anne C. Conway: She has been a U.S. District Court judge for the Middle District of Florida since being nominated to the federal bench by President George H.W. Bush in 1991. Her term on the FISA court began May 19, 2016, and expires May 18, 2023.
  • Raymond J. Dearie: He has been a U.S. District Court judge for the Eastern District of New York since being nominated to the federal bench by President Ronald Reagan in 1986. His term on the FISA court began July 2, 2012, and ends July 1, 2019.
  • Claire V. Eagan: She has been a U.S. District Court judge for the Northern District of Oklahoma since being nominated to the federal bench by President George W. Bush in 2001. Her term on the FISA court began Feb. 13, 2013, and ends May 18, 2019.
  • Martin L.C. Feldman: He has been a U.S. District Court judge for the Eastern District of Louisiana since being nominated for the federal bench by President Ronald Reagan in 1983. His term on the FISA court began May 19, 2010, and ends May 18, 2017.
  • James P. Jones: He has served as a U.S. District Court judge for the Western District of Virginia since being nominated for the federal bench by President William J. Clinton in 1995. His term on the FISA court began on May 19, 2015, and ends May 18, 2022.
  • Michael W. Mosman: He has served as a U.S. District Court judge for the District of Oregon since being nominated for the federal bench by President George W. Bush in 2003. His term on the FISA court began May 04, 2013, and ends May 03, 2020.
  • Thomas B. Russell: He has served as a U.S. District Court judge for the Western District of Kentucky since being nominated for the federal bench by Clinton in 1994. His term on the FISA court began May 19, 2015, and ends May 18, 2022.
  • F. Dennis Saylor IV: He has been a U.S. District Court judge for the District of Massachusetts since being nominated for the federal bench by President George W. Bush in 2003. His term on the FISA court began May 19, 2011, and ends May 18, 2018.