The Foreign Intelligence Surveillance Court
and Its Judges
The Fourth Amendment to the United States Constitution was adopted more than two hundred years ago to protect citizens from unreasonable searches and seizures by the government: "The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched, and the persons or things to be seized."
Ever since, the precise meaning of this amendment has been subject to frequent analysis and evolutionary modifications that have, for the most part, broadened the powers of the government to search the records of the American people. The latest chapter in this long difficult history of efforts to apply eighteenth century rules to complex twenty-first century situations — particularly since the events of 9/11/2001 — has focused on the National Security Agency (NSA) and the secret search warrants issued to it by the Foreign Surveillance Act (FISA) Court.
Largely as a result of the recent publication of news accounts by The Guardian and The Washington Post — based on leaks from a former NSA computer expert named Edward Snowden — both the world-wide surveillance activities of the NSA and the scope of the warrants granted it by the FISA court have become the focus of an intense debate in Congress and among the American people.
As framed in the resulting hearings by House and Senate committee and other forums, this debate has concerned questions about both the extent of the terrorist threat and the effectiveness of the government's massive electronic surveillance programs. Corollary discussions have emerged about the functioning of the court and the long-term impact of the secret surveillance programs on society.
Given the reach of this extensive debate, information about the legal philosophies and life experiences of the judges currently serving on the FISA court can be helpful in judging the whole program. But because their decisions are protected from public view by a heavy blanket of secrecy, judging the judges in this restricted area is extremely difficult.
That said, however, while informed probing of the FISA court is almost impossible, the table below indicates that good deal is known about the previous lives of the eleven judges now serving in the court and how they functioned in the district courts from where they were drawn. The judicial temperament of a judge, for example, probably is reflected by the president who made her/his original appointment to the district court. The past professional experiences of a judge also may be important in shaping an individual's legal philosophy. The fact that a large proportion of the judges currently on the FISA court were appointed by Republican presidents and previously had been employed in the executive branch are characteristics that were previously noted in The New York Times
But a more immediate way to assess a judge's judicial temperament is possible: examine the key decisions that each of them regularly make while serving in district court and compare their decisions with those of other judges serving in the same court. Looking just at the three FISA judges drawn from the District of Columbia, for example, two are among those imposing the heaviest sentences, while one is at the other end of the sentencing scale. Sentence comparisons also differ by the type of offense involved — drugs, white collar, weapons, regulatory offenses etc. Thanks to TRAC's continuing analysis, such highly timely comparisons are currently available for all federal district court judges, including those now on the FISA Court. Table 1 contains links to interactive reporting tools that provide median and average sentencing information about all eleven judges during the last five years.
(For an overview of many of TRAC's studies about individual judges in different parts of the nation and a description of how they were developed, see this extensive article in the October 2012 edition of the Federal Sentencing Reporter.)
A Brief Summary of the Background and Origins of the FISA Court
In 1975 and 1976, the Select Committee to Study Government Operations in Respect to Intelligence Activities issued a series of carefully documented reports on extensive intelligence gathering abuses by the Federal Bureau of Investigation (FBI), the Central Intelligence Agency (CIA), the IRS and the National Security Agency (NSA). One key recommendation of the committee — widely known by the name of its chairman, Senator Frank Church — was that Congress approve legislation creating a special new kind of secret court to review government applications related to national security investigations. While many of these activities in the Watergate and earlier years were unlawful by themselves, the actions were unusually troublesome because they mostly were conducted without a warrant of any kind.
Under the law established as a result of the Church Committee, the new court was authorized to grant warrants in response to requests from various enforcement and intelligence agencies. In addition, the task of appointing a rotating number of judges serving in the court was given to the Chief Justice.