What Is the FISA Court

Federal Intelligence Surveillance Court (FISA Court)

According to a recent CNN report on surveillance, the Federal Intelligence Surveillance Court (FISA Court) is "the most powerful court you have never heard of" (Mears & Abdullah 2014). Because authorization to 'snoop' cannot be given in a public forum, the court was created to approve various National Security Agency requests to spy on private citizens. However, critics contend that the court's lack of transparency means that it "rubber-stamps nearly every National Security Agency request to snoop that it receives" (Mears & Abdullah 2014). Interestingly enough the FISA Court was actually intended introduce at least some accountability and 4th Amendment protections for Americans in the Cold War era when national security concerns had generated highly secretive government entities like the CIA and FBI, both of which functioned with little oversight from Congress or the judiciary. As specified by the Foreign Intelligence Surveillance Act (1978) "the government is required to obtain a judicial warrant -- similar to those issued in criminal investigations -- before federal intelligence agencies can conduct electronic surveillance and gather intelligence within the United States in the interest of national security" (Lindeman 2013). FISA was created to ensure there was some sort of checks and balances upon federal entities operating in a clandestine manner. The 1970s was an era in which there were a series of revelations of unjustified spying upon innocent civilians by the U.S. government and the FISA court ostensibly would put an end to this practice while still allowing for surveillance when it was genuinely necessary.

But appointments to the court are themselves not subject to accountability even in terms of who is chosen to judge such critical cases. "The court is made up of 11 judges who sit for seven-year terms. All are federal district judges who agree to take on the additional duties on a rotating basis. They are appointed by Chief Justice John Roberts, without any supplemental confirmation from the other two branches of government" (Mears & Abdullah 2014). Furthermore, of the 1,856 applications in 2012 to the court, no requests by the government were denied and only 40 were modified (Mears & Abdullah 2014). Critics of the process state that this virtually functions as a kangaroo court, pointing out that similar requests for warrants in more transparent contexts never exhibit such a high percentage of approvals. In other words, FISA Court simply makes people 'feel good' that something is being done, rather than actually does anything to stop unjust actions.