The Guardian and Washington Post released stories in early Summer 2013 that revealed information about the NSA’s domestic surveillance initiatives. About a month later, The New York Times ran two more publications discussing the Foreign Intelligence Surveillance Court (FISC), the court presides over warrent requests for the NSA.
Enacted by the Foreign Intelligence Surveillance Act of 1978, the FISC consists of 11 judges making up the court, currently including the Chief Justice of the United States Supreme Court,John Roberts. Each request from the NSA is managed by only a single FISC judge, but the rulings may be challenged in an appeals court. However this is rarely necessary because the FISC will usually grant the government’s request for a warrant. In fact The New York times reported that in 2012 the FISC licensed 1,788 of the 1,789 government requests for surveillance orders, with the government only withdrawing one single request. Initially, the FISC generally provided warrants relating to wiretapping, nonetheless, as technology (and how it has been made use of by terrorists) has actually become more advanced, the scope of the court’s reach has understndably grown.
While national security hazards must obviously be taken seriously, the tasks of the FISC don’t necessarily align with the traditional American legal system - specifically the Fourth Amendment, which offers that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause…” In its rulings, the FISC will regularly recognize Fourth Amendment precedent, effectively establishing case law in that area. But according to The New York Times, there is concern that the FISC is transforming into a near “parallel Supreme Court” in this area of jurisprudence.
Most of the FISC’s court decisions are not mada available to the public, so it is unlikely that there will be much public debate on these rulings. The only group who debates in front of the FISC is the American Government, which is different from the system that the American legal system has been based on. Furthermore, judges of the FISC are chosen by a single authority who requires no congressional consent, or consent from any other governing body. This selection method often arouses suspicion that the court neglects idological diversity, and fails to represent a variety of views within the court.
Going back as far as the 9/11 attacks and as recently as the 2013 NSA leaks, concerns about national security and surveillance have shed light on what exactly the FISC is, but the entity itself is still regarded as not being very transparent. However with technology advancing rapidly, and creating potential for sophisticated terrorist attacks on either information or public safety, issues surrounding the FISC could become more prominent, and even incorporated heavily into political campaigns. More on the NSA leakds and the FISC can be seen at The Capital Press.