FISA: A major role for a secretive court

FISA courts decide whether to issue warrants.
FISA courts decide whether to issue warrants.
A congressional committee last week released a controversial memo revolving around the Foreign Intelligence Surveillance Act  -- FISA.

    The memo, made public after a vote of the Republican members of the House Permanent Select Committee on Intelligence, charges bias on the part of the FBI, which sought a secret court order in 2016 to monitor a former Trump campaign adviser. (Read the memo on the Document Cloud website). 
     Written from the Republicans' point of view, the document raises questions about whether government officials acted properly in their pursuit of FISA warrants. For their part, Democrats charge that the memo’s findings have been cherry-picked and some information is inaccurate. They are working to get their own memo released.
     But beyond the partisan scuffle, the controversy has shined a spotlight on the little known but important Foreign Intelligence Surveillance Act. What is it, and how did it come about? Here is the background, along with links for further study:

Background:  In the wake of the Watergate scandal, the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities in 1975 investigated the sort of activities that had been (or should be) undertaken by intelligence agencies. The committee was to consider whether those activities conformed to law and the Constitution and how intelligence agencies should be coordinated and overseen, according to an April 1976 report by the committee.  
    The report said this was the first substantial inquiry into the intelligence community since World War II.

Abuses: The committee uncovered abuses, and as a result Congress enacted The Foreign Intelligence Surveillance Act of 1978. The law is an attempt to establish judicial oversight of foreign intelligence surveillance while allowing intelligence agencies to operate with secrecy. The law establishes procedures for physical and electronic surveillance of American citizens, along with collection of foreign intelligence, according to the Justice Department website. At first, the law addressed electronic surveillance. Since then, it has been amended to “the use of pen registers and trap and trace devices, physical searches and business records,” the website explains.

What the court does: Judges consider government applications “for approval of electronic surveillance, physical search, and other investigative actions for foreign intelligence purposes,” the website explains. Most work is conducted ex parte (all parties are not required to be present). This protects classified national security information. 

How the judges are chosen: The chief justice of the United States designates FISA judges.

Where they are from: By statute, the judges “must be drawn from at least seven of the United States judicial circuits, and three of the judges must reside within 20 miles of the District of Columbia,” according to the FISA court website. They typically sit for one week at a time, on a rotating basis.

Length of term: Each judge serves for a maximum of seven years. Terms are staggered to ensure continuity. 



      Testimony paints picture of Trump probe

      Resources: Indictments, plea deals made public

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