The Skinny on the Secret Court

So just what is the secret court being referred to in connection with President Bush’s secret executive order allowing the National Security Agency (NSA) to spy on Americans without the approval of . . . the secret court?

It's the Foreign Intelligence Surveillance Court (FISC), which meets in secret in a secret room inside the Department of Justice Building in Washington D.C.

The court considers surveillance and search warrants from the Justice Department, NSA and other intelligence agencies. It has received 10,000 such applications since it was created in 1978 and apparently has turned down only a small handful of them, perhaps as few as one or two.

The court consists of seven federal judges chosen from the federal district courts by the Chief Justice of the Supreme Court. Each serves a non-renewable seven-year term. Membership is staggered so that a new member is brought in each year. Members are chosen from different federal districts, although at least one member must come from a district court in the Washington D.C. area, presumably so the judge has a short commute in the event of the need for an emergency hearing.

Judge Colleen Kollar-Kotelly, who is a member of the U.S. District Court for Washington (and, for what it’s worth, a Democrat), currently serves as Chief Judge of FISC.

Some FISC factoids:

* The court issues more warrants than the entire federal judiciary combined.

* Wiretaps are allowed without a FISC-approved warrant as long as the warrant is applied for within 72 hours, which more or less pulverizes the Bush administration argument that existing laws would hamstring the NSA.

* Even though the court’s rulings may result in criminal charges, convictions and prison sentences for U.S. citizens, its rulings are permanently sealed from review and the only information provided to congressional oversight committees are brief semi-annual reports and the number of warrants approved each year.

* Not surprisingly, many constitutional scholars and civil libertarians believe that the court’s overly broad powers are in violation of Fourth Amendment protections against unreasonable search and seizure.