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Monday, September 3, 2018

How FISA Works

At Lawfare, David Kris explains the Foreign Intelligence Surveillance Act, which has been the subject of confusion and misinformation on social media.
FISA establishes the Foreign Intelligence Surveillance Court (also known as the FISC), which consists of 11 district judges chosen publicly by the Chief Justice of the United States and drawn from at least seven of the federal judicial circuits. (For more detail on the selection process, see this CRS report; for a list of all judges who have served on the FISC, see here). Judges on the FISC sit for staggered seven-year terms and ordinarily continue to serve as judges in their home districts. A judge may not sit for more than one seven-year term on the FISC. The “presiding judge” of the FISC functions more or less like a chief judge of a district court, with powers and duties set forth in the FISC’s publicly-available rules.
The FISC sits in a secure courtroom in the federal courthouse in Washington, D.C. (prior to 2009, it sat in a secure courtroom inside the Department of Justice Building). In general, each of the 11 judges sits for all or part of one week every 11 weeks, maintaining a continuous rotation. The FISC has a clerk of court, and he or she maintains a docket of more or less the usual sort as prescribed by the court’s rules. The record of proceedings before the FISC, including the docket, applications, and orders, is by statute “maintained under security measures established by the Chief Justice in consultation with the Attorney General and the Director of National Intelligence.” These security measures have been made public as Exhibit B to this document.
The FISC’s rules provide that—apart from emergencies—“proposed applications and orders must be submitted no later than seven days before the government seeks to have the matter entertained by the Court,” and that the “final application,” with the Attorney General’s approval and other required elements, may be submitted “no later than 10:00 a.m. Eastern Time on the day the government seeks to have the matter entertained by the Court.” Changes made between the proposed application and the final application must be specifically identified to the FISC. Applications raising “an issue not previously before the Court – including, but not limited to, novel issues of technology or law” – must also be identified. With the FISC’s approval, applications and signatures may be submitted electronically.
Applications under FISA are heard by a single FISC judge, and by statute and rule the government may not ask a second judge to consider an application for electronic surveillance or a physical search after one FISC judge has denied it. Instead, if a judge denies such an application, the government’s only statutory remedy is to take an appeal to the Foreign Intelligence Surveillance Court of Review.
In practice, however, the FISA process has not always worked in such a rigid and formal way. For example, in 2002, Judge Royce Lamberth explained how the submission and decision process functioned during his tenure as presiding judge of the FISC:
I bristle at the suggestion in some quarters that we are 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 working. It is working, in part, because the [A]ttorney [G]eneral is conscientiously doing his job, and his staff is, as well.