| United States Foreign Intelligence Surveillance Court of Review | |
|---|---|
| (F.I.S.C.R.) | |
| Location | Washington, D.C. |
| Appeals to | Supreme Court of the United States |
| Appeals from | |
| Established | October 25, 1978 |
| Authority | Article III court |
| Created by | Foreign Intelligence Surveillance Act 50 U.S.C. § 1803 |
| Composition method | Chief Justice appointment |
| Judges | 3 |
| Judge term length | 7 years |
| Presiding Judge | Stephen A. Higginson |
| www | |
TheUnited States Foreign Intelligence Surveillance Court of Review (FISCR) is aU.S. federal court whose sole purpose is to review denials of applications for electronic surveillance warrants (called FISA warrants) by theUnited States Foreign Intelligence Surveillance Court (or FISC). The FISCR was established by theForeign 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 anadversarial court; rather, the only party to the court is the federal government, although other parties may submit briefs asamici curiae if they are made aware of the proceedings. Papers are filed and proceedings are held in secret. Records of the proceedings are keptclassified, though copies of the proceedings with sensitive information redacted are very occasionally made public. The government may appeal decisions of the FISCR to theSupreme Court of the United States, which hears appeals on a discretionary basis.
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 FISCR, 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 aredistrict orappellate federal judges, appointed by theChief 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.
The FISCR was called into session for the first time in 2002 in a case referred to asIn re: Sealed Case No. 02-001. The FISC had granted a FISA warrant to theFederal 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 theAmerican Civil Liberties Union and theElectronic 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 theUSA PATRIOT Act and that there was no constitutional requirement for those restrictions.
In August 2008, the FISCR affirmed the constitutionality of theProtect 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 May 2018, the FISCR affirmed anen 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 theAmerican Civil Liberties Union Foundation, theAmerican Civil Liberties Union of the Nation's Capital, and the Media Freedom and Information Access Clinic atYale 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]
Note that the start dates of service for some judges conflict among sources.[6][7][8][9][10][11][12]
| 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 | August 16, 2023 | present | John Roberts | Barack Obama |
| Timothy Tymkovich | 10th Cir. | November 1, 2023 | May 18, 2030 | – | – | John Roberts | George W. Bush |
| Lisa Godbey Wood | S.D. Ga. | November 1, 2023 | May 18, 2030 | – | – | John Roberts | George W. Bush |
|
|
|
| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||