Foreign Intelligence Surveillance Court of Review

The United States Foreign Intelligence Surveillance Court of Review is an appellate court for the review of matters related to espionage and counterintelligence.

Although the Court was established by the Foreign Intelligence Surveillance Act (FISA) passed by the United States Congress in 1978, the Court has had no record of meeting prior to its review of Justice Department electronic surveillance in September, 2002.

Following the terrorist attacks on the United States on September 11, 2001, the Justice Department's use of domestic wiretaps increased and the department began to operate under broad new powers that Attorney General John Ashcroft asserted were granted to law enforcement agencies under the 2001 Patriot Act. A lower court, the Foreign Intelligence Surveillance Court—also authorized by FISA—ruled aspects of the Justice Department interpretation of those new powers to be unconstitutional. The Justice Department then appealed to the Foreign Intelligence Surveillance Court of Review, the first known appeal of a Foreign Intelligence Surveillance Court ruling.

The Court of Review operates as a three-judge panel composed of federal appellate judges—or retired appellate judges—appointed on a rotating basis by Chief Justice of the United States Supreme Court.

Court deliberations were conducted in secret and took place in an electronically secure room at the Justice Department. No public notice was given prior to the Court's session and the Court issued no ruling or public statements following the session.

Congressional officials including Senate Intelligence and Judiciary Committee staff were denied requests to attend the appellate court's initial hearing, according to Justice Department officials, because the hearing contained detailed discussions of sources and methods used in intelligence gathering. Following congressional protests, the Court of Review, agreed to provide Senate Judiciary Committee members with an unclassified transcript of its proceedings and an unclassified copy of its rulings.

Further Reading

Electronic

Electronic Privacy Information Center. November 22, 2002. <http://www.epic.org/privacy/terrorism/fisa/Overview> (April 15, 2003).