United States Foreign Intelligence Surveillance Court of Review

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United States Foreign Intelligence Surveillance Court of Review
(FISCR)
Seal of the United States Foreign Intelligence Surveillance Court of Review
Location Washington, D.C.
Established 1978
Chief judge William C. Bryson
Active judges 3

The United States Foreign Intelligence Surveillance Court of Review (FISCR) is a U.S. federal court whose sole purpose is to review denials of applications for electronic surveillance warrants (called FISA warrants) by the United States Foreign Intelligence Surveillance Court (or FISC). The FISCR was established by the Foreign Intelligence Surveillance Act of 1978 (known as FISA for short) and consists of a panel of three judges. Like the FISC, the FISCR is not an adversarial court; rather, the only party to the court is the federal government, although other parties may submit briefs as amici curiae if they are made aware of the proceedings. Papers are filed and proceedings are held in secret. Records of the proceedings are kept classified, though copies of the proceedings with sensitive information redacted are very occasionally made public. The government may appeal decisions of the FISCR to the Supreme Court, which hears appeals on a discretionary basis.

There is no provision for review or appeal of a grant of a warrant application, only of a denial. That is because in both the FISC and the FISCA, the government - the party who seeks a warrant to conduct surveillance - is the only party before the court, and it is unusual for anyone else to become aware of the warrant application at all, much less to oppose it or appeal it.

The judges of the Court of Review are district or appellate federal judges, appointed by the Chief Justice of the United States for seven-year terms. Their terms are staggered so that there are at least two years between consecutive appointments. A judge may be appointed only once to either the FISCR or the FISC.

Notable cases[edit]

In re Sealed Case[edit]

The FISCR was called into session for the first time in 2002 in a case referred to as In re: Sealed Case No. 02-001. The FISC had granted a FISA warrant to the Federal Bureau of Investigation (FBI) but had placed restrictions on its use; specifically, the FBI was denied the ability to use evidence gathered under the warrant in criminal cases. FISCR allowed a coalition of civil liberties groups, including the American Civil Liberties Union and the Electronic Frontier Foundation, to file amicus briefs opposing the FBI's new surveillance programs. The FISCR held that the restrictions that the FISC had placed on the warrant violated both FISA and the USA PATRIOT Act and that there was no constitutional requirement for those restrictions.

In re Directives[edit]

In August 2008, the FISCR affirmed the constitutionality of the Protect America Act of 2007 in a heavily redacted opinion, In re Directives [redacted text] Pursuant to Section 105B of the Foreign Intelligence Surveillance Act, released on January 15, 2009.[1][2][3] In re Directives was only the second such public ruling since FISA's enactment.[4]

Composition[edit]

Current membership[edit]

Name Court Date appointed Term expiry Reference
William Curtis Bryson (presiding) Federal May 19, 2011
Sept. 10, 2013 (presiding)
May 18, 2018 [5][6]
José A. Cabranes Second August 9, 2013 May, 2020 [7][8]
Richard C. Tallman Ninth January 27, 2014 January 26, 2021 [9]

Former members[edit]

Name Court Date appointed Term expiry Reference
Morris S. Arnold Eighth May 19, 2008
May 19, 2012 (presiding)
Aug. 31, 2013 [10][6][5]
Bruce Marshall Selya First October 8, 2005
May 19, 2008 (presiding)
May 18, 2012 [5]
Ralph K. Winter, Jr. Second November 14, 2003 May 18, 2010 [5]
Edward Leavy Ninth September 25, 2001
May 19, 2005 (presiding)
May 18, 2008 [5]
Ralph B. Guy, Jr. Sixth October 8, 1998
May 19, 2001 (presiding)
May 18, 2005 [5]
Laurence H. Silberman D.C. June 18, 1996 May 18, 2003 [5]
Paul Hitch Roney (presiding) Eleventh September 13, 1994 May 18, 2001 [11][5]
Bobby R. Baldock Tenth June 17, 1992 May 18, 1998 [5]
Robert W. Warren E.D. Wis. October 30, 1989 May 18, 1996 [5]
Collins J. Seitz (presiding) Third March 19, 1987 March 18, 1994 [5]
Edward Skottowe Northrop D. Md. January 11, 1985 January 10, 1992 [5]
John A. Field Fourth May 19, 1982 May 18, 1989 [5]
A. Leon Higginbotham, Jr. (presiding) Third May 19, 1979 May 18, 1986 [5]
James E. Barrett Tenth May 19, 1979 May 18, 1984 [5]
George MacKinnon D.C. May 19, 1979 May 18, 1982 [5]
Note that the start dates of service for some judges conflict among sources.

References[edit]

  1. ^ In re Directives [redacted text] Pursuant to Section 105B of the Foreign Intelligence Surveillance Act, no. 08-01 (Foreign Intelligence Surveillance Court of Review, Jan 15, 2009)
  2. ^ Risen, James; Lichtblau, Eric (January 16, 2009). "Court Affirms Wiretapping Without Warrants". New York Times, January 15, 2009. Retrieved January 16, 2009. 
  3. ^ Perez, Evan (January 16, 2009). "Court Backs U.S. Wiretapping". Wall Street Journal, January 16, 2009. Retrieved January 16, 2009. 
  4. ^ "Intelligence Court Releases Ruling in Favor of Warrantless Wiretapping". Washington Post, January 15, 2009. January 16, 2009. Retrieved January 16, 2009. 
  5. ^ a b c d e f g h i j k l m n o p
  6. ^ a b http://blogs.fas.org/secrecy/2013/09/response-lags/
  7. ^ Barnes, Robert (August 19, 2013). "Roberts names judge to panel that hears rare appeals of surveillance court rulings". The Washington Post. Retrieved August 19, 2013. 
  8. ^ Savage, Charlie (August 20, 2013). "Roberts Varies Pattern in Choice for Spy Court". The New York Times. Retrieved August 20, 2013. 
  9. ^ Aftergood, Steven (7 February 2014). "FISA Court Appointments, Potential Reforms, and More from CRS". Secrecy News. Retrieved 7 February 2014. 
  10. ^ 2013 membership
  11. ^ "Judge Paul H. Roney". http://web.archive.org/web/20060923115648/http://www.ca11.uscourts.gov/about/judges/roney.php. Retrieved 2013-06-14. 

Further reading[edit]

External links[edit]