United States Foreign Intelligence Surveillance Court of Review

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.

United States Foreign Intelligence Surveillance Court of Review
(F.I.S.C.R.)
LocationWashington, D.C.
Appeals toSupreme Court of the United States
Appeals from
EstablishedOctober 25, 1978
AuthorityArticle III court
Created byForeign Intelligence Surveillance Act
50 U.S.C. § 1803
Composition methodChief Justice appointment
Judges3
Judge term length7 years
Presiding JudgeDavid B. Sentelle
www.fisc.uscourts.gov/FISCR

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 in the first place.

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

In re Sealed Case

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

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]

In re Certification of Questions of Law

In May 2018, the FISCR affirmed an en banc order holding that three public interest groups had "standing to seek disclosure of the classified portions of the opinions at issue." The three groups where the American Civil Liberties Union Foundation, the American Civil Liberties Union of the Nation's Capital, and the Media Freedom and Information Access Clinic at Yale University. The government had argued that none of the groups had a legal right to compel disclosure of FISC opinions. The FISCR disagreed, holding: "The flaw in the government's position is that it attacks the merits of the movants' claim rather than whether the claim is judicially cognizable. In other words, the government confuses the question of whether the movants have a First Amendment right of access to FISC opinions with the question of whether they have a right merely to assert that claim. Courts have repeatedly pointed out that there is a distinction between whether the plaintiff has shown injury for purposes of standing and whether the plaintiff can succeed on the merits."[5]

Composition

Current membership
Name Court Date appointed Term expiry Ref
David Sentelle D.C. Circuit May 19, 2018 May 18, 2025 [6]
May 19, 2020
Presiding
Richard Tallman Ninth Circuit January 27, 2014 January 26, 2021 [7]
Vacant [6]

Former members

Note that the start dates of service for some judges conflict among sources.

Name Court Date appointed Term expiry Ref
Morris Arnold Eighth Circuit May 19, 2008 August 31, 2013 [8][9][10]
September 10, 2012
Presiding
Bobby Baldock Tenth Circuit June 17, 1992 May 18, 1998 [8]
James Barrett Tenth Circuit May 19, 1979 May 18, 1984 [8]
William Bryson Federal Circuit May 19, 2011 May 18, 2018 [8][9]
September 10, 2013
Presiding
José Cabranes Second Circuit August 9, 2013 May 18, 2020 [11]
May 19, 2018
Presiding
John Field Fourth Circuit May 19, 1982 May 18, 1989 [8]
Ralph Guy Sixth Circuit October 8, 1998 May 18, 2005 [8]
May 19, 2001
Presiding
Leon Higginbotham Third Circuit May 19, 1979
Presiding		 May 18, 1986 [8]
Edward Leavy Ninth Circuit September 25, 2001 May 18, 2008 [8]
May 19, 2005
Presiding
George MacKinnon D.C. Circuit May 19, 1979 May 18, 1982 [8]
Edward Northrop District of Maryland January 11, 1985 January 10, 1992 [8]
Paul Roney Eleventh Circuit September 13, 1994
Presiding		 May 18, 2001 [8][12]
Collins Seitz Third Circuit March 19, 1987
Presiding		 March 18, 1994 [8]
Bruce Selya First Circuit October 8, 2005 May 18, 2012 [8]
May 19, 2008
Presiding
Laurence Silberman D.C. Circuit June 18, 1996 May 18, 2003 [8]
Robert Warren Eastern District of Wisconsin October 30, 1989 May 18, 1996 [8]
Ralph Winter Second Circuit November 14, 2003 May 18, 2010 [8]

References
  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. In re Certification of Questions of Law, no. 18-01 (Foreign Intelligence Surveillance Court of Review, Mar 16, 2018)
  6. "Current Membership - Foreign Intelligence Surveillance Court of Review".
  7. Aftergood, Steven (February 7, 2014). "FISA Court Appointments, Potential Reforms, and More from CRS". Secrecy News. Retrieved February 7, 2014.
  9. https://fas.org/blogs/secrecy/2013/09/response-lags/
  10. 2013 membership
  11. https://www.fisc.uscourts.gov/sites/default/files/FISC%20FISCR%20Judges%20Revised%20May%2029%202020%20200608.pdf
  12. "Judge Paul H. Roney". Eleventh Circuit. n.d. Archived from the original on September 23, 2006. Retrieved June 14, 2013.

Further reading
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