Massachusetts State House.
Boston Bar Journal

Reflections of a Former FISA Judge

April 01, 2014
| Spring 2014 Vol. 58 #2

Gorton_Nathanielby Judge Nathaniel M. Gorton

Voice of the Judiciary

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.

The FISA Court is intended to and does, in fact, provide judicial oversight to the gathering of foreign intelligence for national security purposes.  Before there was a FISA Court, one agency of the Executive could decide when another agency of the Executive was entitled to conduct electronic surveillance and physical searches for that purpose.  That is no longer the case.  Now a United States District Judge stands between those agencies and determines the propriety of surveillance that, in some circumstances, is of critical importance.

A timely reminder of that importance came from a recent acknowledgement by Former CIA Acting Director Michael Morell, a member of the President’s Review Group on Intelligence and Communications Technology.  He observed that had the currently maligned metadata program been in place before September 2001 “it would likely have prevented 9/11.”  Can there be any more compelling reason to continue such surveillance?  And, if continued, shouldn’t the authorization of such surveillance be under the tutelage of qualified independent judicial officers?  The Foreign Intelligence Surveillance Act provides for just that.

Membership on the FISA Court is a matter of public record but, as far as I know, none of the judges on the Court has ever been of a mind to advertise his or her appointment.  In fact, it is rare for a sitting FISA Judge to speak about the Court in public or even to write about it.

What is secret (i.e., classified) about the Court are the facts and details of the specific applications referred to the Court for decision.  The need for such secrecy is obvious:  the Court is dealing, in many cases, with people or organizations who demonstrably want to destroy our way of life.

FISA judges are appointed by the Chief Justice to staggered, non-renewable terms of seven years.  Because the judges are from different circuits, there is wide geographic diversity and, although it was not the case in my day, the Court is now almost equally balanced by gender.

The FISA Court is in session every week but the judges do not sit en banc.  Rather, they sit singly at regular intervals.  Although the workload of the Court is unpublished, it has been accurately reported that the number of FISA applications considered and approved over the past several years exceeds all Title III search warrants, federal and state, issued nationwide.  FISA judges work extremely hard while they are in Washington, D.C.  They read every application, each of which is long and detailed (although much of the material is of a repetitive nature).  I used to hold hearings on most applications, but I understand that practice is not as prevalent today.  The judges of the Court come together as a group twice each year to discuss procedures and rules and are privileged to attend an annual luncheon hosted by the Chief Justice at the Supreme Court, usually attended by the Attorney General and the directors of the investigative agencies with whom the Court interacts: the FBI, the CIA, and the NSA.

The statutory function of the FISA Court is to consider applications for electronic surveillance and/or physical searches.  A “significant purpose” of the requested search or surveillance must be to acquire foreign intelligence information.  The foreign intelligence must be “necessary” to protect against international terrorism or clandestine intelligence gathering activities and the applicant must also show that there is probable cause to believe that 1) the target of the surveillance is a foreign power (or the agent of a foreign power) and 2) the facilities targeted are being used (or are about to be used) by that foreign power or agent.  There is, however, no requirement of showing probable cause to believe that a crime has been committed,  a major distinction between FISA and Title III applications.

Each application considered by the Court is certified by the National Security Advisor or a Senate-confirmed national security official and is approved by the Attorney General, the Deputy Attorney General or the Acting Attorney General.  In other words, there is political accountability for every surveillance application that comes before the FISA Court.  That is an important safeguard because it means that every application is thoroughly vetted and screened before a FISA judge ever sees it.

The Court is assisted by very competent and capable full-time “legal counsel.”  It is their job to make sure that the applications presented to the Court are in full compliance with all statutory requirements.  Although applications are regularly approved, they are not infrequently withdrawn, revised and/or resubmitted with additional information before approval.  In fact, recent statistics show that FISA applications are initially rejected at a higher rate than are Title III applications.  Contrary to the opinion of some critics, FISA judges are not “rubber stamps” and the process works because the Executive and Judicial Branches both perform their functions conscientiously.  The Foreign Intelligence Surveillance Act was designed to (and does, in fact) provide for the protection of civil liberties, and the judges of the FISA Court diligently see to it that the statute is enforced.

That is why, frankly, I am disturbed by the recent rash of condemnation of the work of the National Security Agency and the effort to curtail significantly its surveillance function.  The work of law enforcement officers involved in our national security that I witnessed, and temporarily joined in overseeing, saves lives; and their investigations do not unduly invade the privacy of U.S. citizens.  The FISA Court plays a vital and necessary role in that regard, a role that should be acknowledged and protected by our leaders.

Judge Nathaniel Gorton was appointed by President George H.W. Bush in 1992.  He served in the Central Division (Worcester) until 2004 and has served in the Eastern Division (Boston) since then.