By David Ingram
WASHINGTON (Reuters) - Two secret courts that authorize U.S. spying operations such as the massive collection of telephone data are adding two judges who were put on the bench by Democratic presidents, a spokesman said on Friday, in a shift following criticism that one of the two courts is one-sided.
The appointments, to the 11-member U.S. Foreign Intelligence Surveillance Court and to the three-member U.S. Foreign Intelligence Surveillance Court of Review, came without comment from Chief Justice John Roberts, who in addition to heading the U.S. Supreme Court has exclusive power to determine the makeup of the two spy courts.
Roberts is a conservative judge appointed to the high court in 2005 by Republican President George W. Bush. The vast majority of the judges he has chosen for the spy courts have been Republican appointees.
Seattle-based U.S. Circuit Judge Richard Tallman joined the court of review for a term that started last month. Democratic President Bill Clinton appointed him as a federal appeals court judge in 2000. The court of review hears appeals from the lower spy court.
U.S. District Judge James Boasberg, based in Washington, D.C., will join the lower spy court in May. Democratic President Barack Obama appointed him as a federal trial judge in 2011.
Federal judges serve for life, but their terms on the spy courts are fixed at seven years. They go on hearing their regular cases while helping on the spy courts.
Civil liberties advocates, as well as Democratic Senator Richard Blumenthal of Connecticut, have said that the lower spy court risks its impartiality by having at one point 10 of its 11 seats held by Republican-nominated judges.
Congress created the two courts in 1978 after revelations that federal agents had routinely and unlawfully spied on Americans.
By law, the Foreign Intelligence Surveillance Court oversees investigations related to non-U.S. targets, and it usually approves requests made by Justice Department lawyers.
In an annual report to Congress that is publicly available, the Justice Department said that in 2012 the government made 212 applications for access to business records. The court denied none of the applications but amended 200 of them, the report said.
Leaks to the news media from former National Security Agency contractor Edward Snowden showed, beginning last year, how expansive the court's orders can be.
The court approved, for example, the creation of a database that includes information on virtually every U.S. telephone call, such as the length of the calls and the numbers dialed. Obama has ordered changes to that program.
(This story has been refiled to correct throughout to reflect Tallman's appointment to court of review)
(Editing by Howard Goller and Steve Orlofsky)
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The United States Foreign Intelligence Surveillance Court (FISC, also called theFISA Court) is a U.S. federal court established and authorized under the Foreign Intelligence Surveillance Act of 1978 (FISA) to oversee requests for surveillancewarrants against suspected foreign intelligence agents inside the United States by federal law enforcement agencies. Such requests are made most often by the National Security Agency (NSA) and the Federal Bureau of Investigation (FBI). Congress created FISA and its court as a result of the recommendations by the U.S. Senate'sChurch Committee. Its powers have evolved and expanded to the point that it has been called "almost a parallel Supreme Court."
Since 2009, the court has been located in the E. Barrett Prettyman United States Courthouse in Washington, D.C. For roughly thirty years of its history, it was housed on the sixth floor of the Robert F. Kennedy Department of Justice Building.
In 2013, a top-secret order issued by the court was leaked to the media by Edward Snowden. It required a subsidiary of Verizon to provide a daily, ongoing feed of all call detail records – including those for domestic calls – to the NSA.
Each application for one of these surveillance warrants (called a FISA warrant) is made before an individual judge of the court. The court may allow third parties to submit briefs as amici curiae. When the U.S. Attorney General determines that an emergency exists he may authorize the emergency employment of electronic surveillance before obtaining the necessary authorization from the FISC, after which the Attorney General or his designee must notify a judge of the court not more than 72 hours after the Attorney General authorizes such surveillance, as required by 50 U.S.C. § 1805.
If an application is denied by one judge of the court, the federal government is not allowed to make the same application to a different judge of the court, but may appeal to the United States Foreign Intelligence Surveillance Court of Review. Such appeals are rare: the first appeal from the FISC to the Court of Review was made in 2002 (In re Sealed Case No. 02-001), 24 years after the founding of the court.
It is also rare for FISA warrant requests to be turned down by the court. During the 25 years from 1979 to 2004, 18,742 warrants were granted, while just four were rejected. Fewer than 200 requests had to be modified before being accepted, almost all of them in 2003 and 2004. The four rejected requests were all from 2003, and all four were partially granted after being submitted for reconsideration by the government. Of the requests that had to be modified, few if any were before the year 2000. During the next eight years, from 2004 to 2012, there were over 15,100 additional warrants granted, with an additional seven being rejected. In all, over the entire 33-year period, the FISA court has granted 33,942 warrants, with only 11 denials – a rejection rate of 0.03 percent of the total requests.This does not include the number of warrants that were modified by the FISA court.
- Excludes physical searches