Foreign Policy Research Institute A Nation Must Think Before it Acts To Oversee or to Overrule: What is the Role of the Foreign Intelligence Surveillance Court Under FISA Section 702?

To Oversee or to Overrule: What is the Role of the Foreign Intelligence Surveillance Court Under FISA Section 702?


Last month, the Office of the Director of National Intelligence (ODNI) released a redacted version of a Foreign Intelligence Surveillance Court (FISC) opinion and order following a declassification review. The opinion, which was originally entered in November 2020, reflects the findings and conclusions reached by the FISC after reviewing the 2020 “certifications” presented by the attorney general and the director of national intelligence (DNI) seeking authority to conduct electronic surveillance under Section 702 of the Foreign Intelligence Surveillance Act (FISA). The court’s decision was widely chided in the media for, once again, approving a Section 702 certification in the face of “widespread violations.”

The Nov. 18, 2020, decision entered by FISC Presiding Judge James Boasberg followed earlier orders from Boasberg, entered in December 2019 and in October 2018, that also addressed government certifications seeking approval to conduct surveillance under the authority of FISA Section 702 (50 U.S.C. § 1881a). In each instance, redacted versions of Boasberg’s opinions were released publicly after classification reviews by the ODNI. Boasberg’s redacted October 2018 opinion was released nearly a year later, in October 2019; his redacted December 2019 opinion was released by the ODNI in September 2020; and his redacted November 2020 opinion was released in April 2021.

Coincidentally, the ODNI released this most recent redacted FISC decision addressing Section 702 during the same week that the American Civil Liberties Union and others filed a petition asking that the Supreme Court find a qualified First Amendment right of access requiring that all FISC decisions be released and redacted “only as necessary to prevent genuine harm to national security.” In pursuing relief from the Supreme Court, those petitioners seek to overturn a carefully calibrated process regarding the workings of the FISC designed to provide reasonable transparency into that court’s decisions while protecting classified information relating to intelligence sources and methods. In the case of FISA Section 702, those processes are meant to protect the unique sources and methods associated with what has been described as “the most potent power Congress has granted U.S. spy agencies to gather intelligence on everything from terrorism to nuclear proliferation to foreign adversaries’ plans and intentions.”

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