United States Foreign Intelligence Surveillance Court - FISA Warrant

FISA Warrant

Each application for one of these surveillance warrants (called a FISA warrant) is made before an individual judge of the court. Like a grand jury, FISC is not an adversarial court: the federal government is the only party to its proceedings. However, the court may allow third parties to submit briefs as amici curiae. When the Attorney General determines that an emergency exists he may authorize the emergency employment of electronic surveillance before obtaining the necessary authorization from the FISA court, after which the Attorney General or his designee must notify a judge of the court not more than 72 hours after the Attorney General authorizes such surveillance.

If an application is denied by one judge of the FISC, the federal government is not allowed to make the same application to a different judge of the court, but must appeal to the United States Foreign Intelligence Surveillance Court of Review. Such appeals are rare: the first appeal from the FISC to the Court of Review was made in 2002, 24 years after the founding of the FISC.

It is also rare for FISA warrant requests to be turned down by the court. Through the end of 2004, 18,761 warrants were granted, while just five were rejected (many sources say four) . Fewer than 200 requests had to be modified before being accepted, almost all of them in 2003 and 2004. The four known rejected requests were all from 2003, and all four were partially granted after being resubmitted for reconsideration by the government. Of the requests that had to be modified, few if any were before the year 2000. In subsequent years, according to journalist Joshua Micah Marshall, the breakdown was as follows:

On May 17, 2002, the court rebuffed then-Attorney General John Ashcroft, releasing an opinion that alleged that FBI and Justice Department officials had "supplied erroneous information to the court in more than 75 applications for search warrants and wiretaps, including one signed by then-FBI Director Louis J. Freeh". Whether this rebuke is related to the court starting to require modification of drastically more requests in 2003 is unknown.

On December 16, 2005, the New York Times reported that the Bush administration had been conducting surveillance against U.S. citizens without the knowledge of the FISC since 2002. On December 20, 2005, Judge James Robertson resigned his position with the FISC, apparently in protest of the secret surveillance. The government's apparent circumvention of the FISC started prior to the increase in court-ordered modifications to warrant requests.