OK, so the federal government has access to phones records via a “secret court,” as many people learned on Thursday. But what is the court and why is it so secret?
A court similar to the secret court.
A British newspaper on Wednesday published a leaked “secret order” from the court that showed that the National Security Agency and the FBI have basic phone usage data for all Verizon customers who make domestic and international calls.
Other reports surfaced that the data-collection program goes back to 2006—which was confirmed by a U.S. senator on Thursday morning—and that there are probably other secret orders that have been sent to other phone carriers.
All of this doesn’t sound overly secret, but there are two things that are definitely classified about the court: the actual order that was leaked to The Guardian newspaper and the legal rationale used by the Obama administration for seeking out phone records for millions of Americans.
Other than that, here’s what we know about the secret court, from various public and definitely non-classified sources.
1. Its name is the Foreign Intelligence Surveillance Court. Congress in 1978 established the Foreign Intelligence Surveillance Court, or FISC, as a special court, and authorized the chief justice of the United States to designate federal district court judges to review warrants related to national security investigations.
2. How many judges are on the court? Right now, there are 11 federal judges available to be on the court. The FISC judges travel to Washington, D.C., to hear warrant cases on a rotating basis. At least one of the judges is a member of the U.S. District Court for the District of Columbia, in case a quick hearing is needed. And at least three need to be in positions that are short driving distances to Washington.
3. Is there really a super-secret secret court? Not really, but there is a special three-person court, the Review Court, that can review a case that was rejected by FISC. But since the Justice Department almost always gets the warrants it wants from FISC, the Review Court hasn’t met since 2002.
4. How do cases get to the FISC? Warrant applications are drafted by lawyers at the National Security Agency at the request of an officer of one of the federal intelligence agencies.
5. Why do we have the FISC? Back in the post-Watergate era, Congress wanted to make sure judicial warrants were obtained before certain kinds of intelligence-gathering operations began within the United States. The Supreme Court also had concerns that under the Fourth Amendment, judicial warrants might be needed to conduct national security-related investigations.
6. But didn’t the NSA skip the whole “warrant thing” by getting Verizon’s phone records? Under section 215 of the Patriot Act, the FBI and attorney general can get a secret warrant for your phone records at Verizon or any carrier they notify, with the qualification that the seized data is relevant to a terrorism investigation. But you won’t be told by the feds they have your basic phone data.
7. So the secret court is kind of like a grand jury? In some ways it is, because it is not an adversarial court. But evidence has to be shown to a grand jury to get a warrant or a subpoena, based on probable cause. In the FISC, probable cause isn’t mandatory for a warrant.
8. Where and when does the FISC meet? Well, that’s a secret! Seriously, in 2009 the FISC folks moved from the Justice Department building to the D.C. federal courthouse. The Washington Post article at the time said a secret team of construction workers labored for two years, behind closed doors, to build the nation’s most secure courtroom for the judges.
As for when they meet, it can be any time, with different judges on the bench. The testimony is secret, although some redacted documents have been released through the Freedom of Information Act.
9. Does the court have secret rules? No. The rules are public and are on the U.S. Courts website.
10. Do we know who is on the bench? Yes, that information is publicly available. The Federation of American Scientists has the current list.
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