Reform of the Foreign Intelligence Surveillance Courts: Procedural and Operational Changes
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Nolan, Andrew; Thompson, Richard M. II
[Excerpt] The Foreign Intelligence Surveillance Act (FISA) of 1978 was the product of sweeping congressional investigation and deliberation prompted by perceived electronic surveillance abuses by the executive branch. Among other things, FISA established the Foreign Intelligence Surveillance Court (FISC) to review government applications to conduct electronic surveillance for foreign intelligence purposes and the Foreign Intelligence Surveillance Court of Review (FISA Court of Review) to review the decisions of the FISC. In the wake of revelations in June 2013 concerning the scope of orders issued by the FISC, many have questioned the efficacy of the current mechanisms for reviewing the executive branch’s intelligence gathering practices. While some have proposed altering the underlying substantive law that regulates such surveillance, other proposals address the practice and procedures of authorizing such surveillance activities. This report begins with an overview of both the FISC and the FISA Court of Review, including the jurisdiction of these courts, how the judges are appointed, and the FISC’s practices and procedures for reviewing and issuing surveillance orders. The report then discusses the scope and underlying legal principles behind congressional regulation of the procedures of the federal courts, and applies those principles with respect to the various proposals to reform the FISA judicial review process. These reforms include requiring the FISC to hear arguments from “friends of the court” or amici curiae, who would brief the court on the privacy or civil liberty interests implicated by a government application; mandating that in certain instances the FISC sit en banc—that is, with all 11 FISC judges; and altering the voting rules of the FISC and FISA Court of Review.
Foreign Intelligence Surveillance Act; FISA; Foreign Intelligence Surveillance Court; FISC; reform