The attacks of September 11, 2001, ushered in a multitude of legal transformations that restrict civil liberties in the name of national security. But discussion of one change that could have particularly devastating consequences has been strangely limited. It concerns the secret and mysterious Foreign Intelligence Surveillance Court (FISC), which exists in a legal twilight zone with virtually no connection to the Constitution or Bill of Rights.
Since its creation twenty-five years ago, the FISC has steadily amassed more power to intrude on people’s lives than any court in our history, and it has never denied a government application for a wiretap or search in more than 14,000 requests. Last year, the seven judges on the court granted almost as many warrants as the 600 or so trial judges in the entire federal judiciary.
The FISC is certainly a peculiar institution. It hears only one side of every case–the government’s. No defense attorney or member of the public has ever attended one of its sessions. Its judges (expanded to eleven under the Patriot Act), who are current federal trial and appellate judges, are handpicked by Chief Justice William Rehnquist for rotating terms. A FISC appointment is prestigious; jockeying for one is described as intense. FISC decisions cannot be appealed by a defendant–not even to the Supreme Court.
How did such a court come to exist? The original idea was seen as a good-government reform. Before the FISC, which was created with bipartisan backing under the Carter Administration, the President could order a wiretap or break-in without a warrant if he unilaterally determined it was necessary for national security reasons. Because the legal authority to do so was always suspect (and because President Nixon abused this privilege by allowing the FBI to monitor thousands of Americans, including members of the White House staff), the FISC was created to check executive power by imposing standards and judicial review on this process.
From its inception, getting a warrant from the FISC was far easier than from a regular court. Probable cause was needed, but rather than requiring suspected criminal activity (as in regular courts), such a warrant needed only to allege that the target was a “foreign power” or “agent” of one. This exception to the probable-cause requirement of the Fourth Amendment was considered acceptable because warrants were supposed to be limited to the gathering of foreign intelligence information, not for prosecution in a regular criminal court. Most intended targets were foreign embassies and their personnel. Only Americans believed to be engaged in espionage or in contact (even if innocuous) with an intelligence target could be monitored without Fourth Amendment protections.
This changed dramatically in the mid-1990s. Congress expanded the FISC to authorize not only electronic surveillance but also physical searches of people’s homes. Armed with an FISC warrant, FBI agents could now break into private homes and never tell the occupants they had been there, thus foreclosing any possible court challenge to the warrant (you can’t challenge an illegal break-in if you don’t know it happened). Evidence gathered with FISC warrants also was increasingly used to prosecute people in criminal court on charges that had little or nothing to do with national security; at least a few dozen such cases have come through the courts in recent years.