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 of the United States, 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 JudgeStephen A. Higginson
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
Main article: In re: Sealed Case No. 02-001

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 were 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

Note that the start dates of service for some judges conflict among sources.[6][7][8][9][10][11][12]

Current membership
Name Court Start End Presiding Start Presiding End FISCR Appointer
(Chief Justice)		 Original Appointer
(President)
Stephen Higginson 5th Cir. February 25, 2021 May 18, 2027 September 15, 2023 present John Roberts Barack Obama
seat vacant – – – – – – –
seat vacant – – – – – – –

Former members
Name Court Start End Presiding Start Presiding End FISCR Appointer
(Chief Justice)		 Original Appointer
(President)
Morris Arnold 8th Cir. May 19, 2008 August 31, 2013 September 10, 2012 August 31, 2013 John Roberts George H. W. Bush
Bobby Baldock 10th Cir. June 17, 1992 May 18, 1998 – – William Rehnquist Ronald Reagan
James Barrett 10th Cir. May 19, 1979 May 18, 1984 – – Warren Burger Richard Nixon
William Bryson Fed. Cir. May 19, 2011 May 18, 2018 September 10, 2013 May 18, 2018 John Roberts Bill Clinton
José Cabranes 2nd Cir. August 9, 2013 May 18, 2020 May 19, 2018 May 18, 2020 John Roberts Bill Clinton
John Field 4th Cir. May 19, 1982 May 18, 1989 – – Warren Burger Richard Nixon
Ralph Guy 6th Cir. October 8, 1998 May 18, 2005 May 19, 2001 May 18, 2005 William Rehnquist Ronald Reagan
Leon Higginbotham 3rd Cir. May 19, 1979 May 18, 1986 May 19, 1979 May 18, 1986 Warren Burger Jimmy Carter
Edward Leavy 9th Cir. September 25, 2001 May 18, 2008 May 19, 2005 May 18, 2008 William Rehnquist Ronald Reagan
George MacKinnon D.C. Cir. May 19, 1979 May 18, 1982 – – Warren Burger Richard Nixon
Robert Miller N.D. Ind. July 8, 2020 September 15, 2023 – – John Roberts Ronald Reagan
Edward Northrop D. Md. January 11, 1985 January 10, 1992 – – Warren Burger John F. Kennedy
Paul Roney 11th Cir. September 13, 1994 May 18, 2001 September 13, 1994 May 18, 2001 William Rehnquist Richard Nixon
Collins Seitz 3rd Cir. March 19, 1987 March 18, 1994 March 19, 1987 March 18, 1994 William Rehnquist Lyndon Johnson
Bruce Selya 1st Cir. October 8, 2005 May 18, 2012 May 19, 2008 May 18, 2012 John Roberts Ronald Reagan
David Sentelle D.C. Cir. May 19, 2018 September 15, 2023 May 19, 2020 September 15, 2023 John Roberts Ronald Reagan
Laurence Silberman D.C. Cir. June 18, 1996 May 18, 2003 – – William Rehnquist Ronald Reagan
Richard Tallman 9th Cir. January 27, 2014 January 26, 2021 – – John Roberts Bill Clinton
Robert Warren E.D. Wis. October 30, 1989 May 18, 1996 – – William Rehnquist Richard Nixon
Ralph Winter 2nd Cir. November 14, 2003 May 18, 2010 – – John Roberts Ronald Reagan

Seat succession

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".
  8. 2013 membership
  9. "Policy Response to Intelligence Revelations Lags".
  10. https://www.fisc.uscourts.gov/sites/default/files/FISC%20FISCR%20Judges%20Revised%20May%2029%202020%20200608.pdf
  11. "Judge Paul H. Roney". Eleventh Circuit. n.d. Archived from the original on September 23, 2006. Retrieved June 14, 2013.
  12. https://www.fisc.uscourts.gov/sites/default/files/FISC%20FISCR%20Judges%20August%202020%20200824.docx.pdf

Further reading
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