At the time I was appointed to the Foreign Intelligence Surveillance Court (“the FISA Court”) by the late Chief Justice William Rehnquist in mid-2001, very few judges, let alone members of the public, had ever heard of that Court. September 11, 2001, changed all of that. Now, most of us are well aware of the existence and purpose of the FISA Court, if not the details of its operations, and currently it is smack in the middle of the debate about trade-offs between civil liberties and national security.
For the record, I served on the FISA Court from 2001 to 2008 and therefore have been emeritus for almost six years. I am not part of the recent controversy or privy to the details of the technology now under heavy scrutiny, but I believe I am still in a position to explain the importance of having such a Court and its value to the overall security of the nation. That is the purpose of this article.
First, I need to dispel a lingering myth about what I still hear referred to as the “secret FISA Court”. It is not secret. It was created by statute in 1978, now embodied in Title 50 of the United States Code. How the court is structured, the extent of its authority, the kinds of applications it is to consider and the minimization of the use of the intelligence gathered are all spelled out, in some detail, in the statute. Read the full article at the Boston Bar Journal.