The Pros and Cons of the FISA Court

The FISA Court (or Foreign Intelligence Surveillance Act Court) was established by act of Congress in 1978 to oversee requests for surveillance warrants involving suspected foreign spies within the United States by federal law-enforcement and intelligence agencies, principally the FBI and the National Security Agency.

Senior Fellows at the Law School’s Center for National Security Law, Ashley Deeks and Fred Hitz discuss the FISA Court and its pros and cons.

Deeks and Hitz spoke at our Wednesday April 13, 2016 meeting. Following the presentation, questions were taken from the audience. The program was moderated by SSV board member Terry Cooper. The presentation is provided in this podcast.

$1080-Ashley DeeksAshley Deeks is an associate professor at the University of Virginia Law School. Prior to joining the Law School’s faculty she was the assistant legal adviser for political-military affairs in the Legal Adviser’s Office at the Department of State where, among many other duties, she advised on intelligence issues. She has also served as a fellow at the Council on Foreign Relations and the Center for Strategic and International Studies. Ms. Deeks is a cum laude graduate of Williams College and an honors graduate of the University of Chicago Law School.

$1100-Frederick HitzFrederick P. Hitz is an adjunct professor at the Law School and the Batten School of Leadership and Public Policy. For more than 30 years, while ostensibly being a lawyer in a buttoned-down private practice, he served in various capacities at the Central Intelligence Agency, both in line positions such as deputy director for Europe in the Directorate of Operations and in staff positions like Inspector General. He has written extensively on espionage and intelligence issues. His publications include “The Great Game: the Myth and Reality of Espionage” and “Why Spy? Espionage in an Era of Uncertainty.”  Mr. Hitz is a graduate of Princeton University and Harvard Law School.

Program Summary

The FISA Court (or Foreign Intelligence Surveillance Act Court) was established by act of Congress in 1978 to oversee requests for surveillance warrants involving suspected foreign spies within the United States by federal law-enforcement and intelligence agencies, principally the FBI and the National Security Agency. The way the FISA Court operates is quite controversial. For example, it meets in secret. No representative of the person proposed to be surveilled is allowed to be present. The court’s rulings cannot be appealed or even seen by the public, even though in a number of cases it has issued far-reaching decisions broadening the types of situations in which surveillance may proceed without a warrant.

The judges of the FISA Court are selected by a single person, the Chief Justice of the Supreme Court, without review or confirmation by the Senate or anyone else. Topics covered included the origins of the FISA Court; its original purpose; how its charter has been changed to reflect the additional issues now facing the court; Edward Snowden and the government’s collection of metadata; criticisms of the FISA Court and much more.

In the 1970s it wasn’t clear whether the government had to get a warrant before it was conducting national security surveillance which to some looked like a search under the Fourth Amendment. The difference is the information was being collected for a different purpose, not in pursuit of a criminal prosecution, but rather an attempt to detect spies in the United States who were engaged in espionage against us.

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