Foreign Intelligence Surveillance Court

The Foreign Intelligence Surveillance Court was created by section 103 of the Foreign Intelligence Surveillance Act of 1978. The statute directed the Chief Justice of the United States to "publicly designate seven district court judges from seven of the United States judicial circuits who shall constitute a court which shall have jurisdiction to hear applications for and grant orders approving electronic surveillance anywhere within the United States under the procedures set forth in this Act."¹

Composition

Each judge was to serve "for a maximum of seven years" and was not "eligible for redesignation." The first terms were staggered so that one of the seven expired each year. A judge who denied an application was to set out a "written statement of each reason for his decision," to be sealed and sent to the court of review, and no other judge of the court could hear an application once denied.¹

The same section created a court of review: "The Chief Justice shall publicly designate three judges, one of whom shall be publicly designated as the presiding judge, from the United States district courts or courts of appeals who together shall comprise a court of review which shall have jurisdiction to review the denial of any application." A government appeal from the court of review went "under seal to the Supreme Court." The court's records were to be kept under security measures set by the Chief Justice "in consultation with the Attorney General and the Director of Central Intelligence."¹

The USA PATRIOT Act (Public Law 107-56) of 2001 substituted "11 district court judges" for "seven district court judges" and added that "no fewer than 3 shall reside within 20 miles of the District of Columbia." The Intelligence Reform and Terrorism Prevention Act of 2004 (Public Law 108-458) put the Director of National Intelligence in place of the Director of Central Intelligence in the record-keeping provision. The FISA Amendments Act of 2008 (Public Law 110-261) restructured subsection (a) and added an en banc procedure; the USA FREEDOM Act of 2015 (Public Law 114-23) added subsections (i) through (k) on amicus curiae; and the Reforming Intelligence and Securing America Act of 2024 (Public Law 118-49) added a transcription requirement.²

Judges

Frederick Bernard Lacey served as a judge of the court from 1979 to 1985. Royce C. Lamberth served from 1995 to 2002 and was presiding judge for the whole of that period.³ Lacey, a district judge in New Jersey, was appointed special counsel by Attorney General William Barr on October 16, 1992, to review the Banca Nazionale del Lavoro affair.⁴⁵ Lamberth was a judge of the United States District Court for the District of Columbia, appointed by Ronald Reagan in 1987.⁶