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FIS: The Nation's Secret Court

A "uniquely non-public court"

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In the United States federal judicial system, a single court operates in almost total secrecy, its deliberations and even its decisions closed to the public. Created in 1978, the eleven judges of the U.S. Foreign Intelligence Surveillance Court (FIS) consider and rule on applications by federal law enforcement and intelligence agencies to conduct electronic surveillance anywhere within the United States.

The FIS Court operates under the Foreign Intelligence Surveillance Act (FISA), which regulates the gathering of foreign intelligence information inside the United States, and rarely refuses a government request to conduct special surveillance.

Section 1802(b) of the FISA authorizes the federal government to file applications for electronic surveillance with the FIS Court, and empowers the FIS Court to grant orders "approving electronic surveillance of a foreign power or agent of a foreign power for the purpose of obtaining foreign intelligence information."

A Rare Public Opinion
Only three opinions issued by the FIS Court have ever been made public. The most recent of these came on Dec. 11, 2007, when the Court, referring to itself as a "unique and uniquely non-public court," refused a request from the American Civil Liberties Union (ACLU) demanding that the Court make public its order authorizing the Bush Administration to expand its program of electronic surveillance to include phone calls and emails of U.S. residents.

In the 22-page opinion (.pdf), FIS Court Judge John D. Bates noted that the Constitution's First Amendment could not be used as a basis for public access to the Court's records.

The Court's opinion goes on to conclude that "certain benefits" possibly resulting from making its records public, including "an additional safeguard against mistakes, overreaching or abuse" of the government's surveillance powers, fail to overcome the need for secrecy. The dangers of "broad public access" to the Court's activities, wrote Judge Bates, would "greatly outweigh any such benefits."

Judge John D. Bates was appointed to the U.S. District Court for the District of Columbia by President George W. Bush in December 2001, and to the U.S. Foreign Intelligence Surveillance Court by Chief Justice John G. Roberts in February 2006.

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