The Constitution establishes a limited federal government, which includes a limited federal judiciary. Because the Framers feared that federal judges might act as super-legislatures and go about declaring unconstitutional whatever legislation or presidential actions displeased them, they wrote into Article III of the Constitution the absolute prerequisite of the existence of a case or controversy before the jurisdiction of any federal court could be invoked.

The case or controversy requirement was drafted to prevent courts from rendering advisory opinions whereby they simply declared that they had certain authority or that some statute or executive act was unconstitutional. The case or controversy requirement has been uniformly interpreted by the Supreme Court to require either a plaintiff whose allegations state a case of real palpable harm against a defendant, or a defendant in a criminal case who is in real jeopardy of losing life, liberty or property at the hands of the government before a federal court may have jurisdiction. – [1]

FISA Court has ruled that a law disallowing the NSA's bulk collection of metadata is invalid ...The United States Foreign Intelligence Surveillance Court (FISC, also called the FISA Court) is a U.S. federal court established and authorized under the Foreign Intelligence Surveillance Act of 1978 (FISA) to oversee requests for surveillance warrants against foreign spies inside the United States by federal law enforcement and intelligence 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’s Church Committee. In 2013, The New York Times said “it has quietly become almost a parallel Supreme Court.” [3]

While U.S. intelligence officials have insisted that the FISA process is thorough, little attention has focused on the judges themselves.
Selected by the Chief Justice of the Supreme Court, FISA judges serve for staggered seven-year terms. The court carries 11 judges at a time.
The trial court judges who sit on the FISA court wield great power working in secret. The court has come under scrutiny after Britain’s Guardian newspaper published details of a secret FISA court order requiring Verizon Communications to provide data to the NSA.

WINDOWLESS COURTROOM
Every few months, the FISA judges set aside their regular, public cases, travel to Washington, and take the bench inside a secure, windowless courtroom at 333 Constitution Avenue. Prosecutors and federal agents appear to answer questions about warrants before individual judges, rather than a panel.
Generally, the judges rotate on a week-long schedule. Three judges live in the Washington area and are available for emergencies. FISA judges do not receive extra pay.

Between 2001 and 2012, the FISA judges approved 20,909 surveillance and property search warrants – an average of 33 a week. During that 12-year period, the judges denied just 10 applications. Prosecutors withdrew another 26 applications. From 2007 to 2012, FISA judges also approved 532 “business record” warrant applications, the category used in the order that directed Verizon to release metadata on all phone calls inside the United States. No business record warrants were rejected. The records also show that FISA judges ordered “substantial modifications” to 497 surveillance and property warrants and 428 of the business record warrants. The statistics are especially intriguing for business record warrants for 2011 and 2012. Of 417 warrants authorized, the court “substantially modified” 376. – [2]

The statistics of total FISA warrant requests for electronic surveillance since beginning are: [3]

  • Years   1979 – 2013
  • Requests submitted 35,529
  • Requests approved 35,434
  • Requests modified 533
  • Requests denied  12

“The FISA Amendments Act of 2008, effectively gives the President – then President Obama – the authority to run surveillance programs similar in effect to the warrantless surveillance program [secretly implemented by George Bush in late 2001]. That is because New FISA no longer requires individualized targets in all surveillance programs. Some programs may be ‘vacuum cleaner’ programs that listen to a great many different calls (and read a great many e-mails) without any requirement of a warrant directed at a particular person as long as no US person is directly targeted as the object of the program. . . .
“New FISA authorizes the creation of surveillance programs directed against foreign persons (or rather, against persons believed to be outside the United States) – which require no individualized suspicion of anyone being a terrorist, or engaging in any criminal activity. These programs may inevitably include many phone calls involving Americans, who may have absolutely no connection to terrorism or to Al Qaeda.” – truthcdm.com [4]

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The Foreign Intelligence Surveillance Court was established in 1978 when Congress enacted the Foreign Intelligence Surveillance Act (FISA), which is codified, as amended, at 50 U.S.C. §§ 1801-1885c. The Court sits in Washington D.C., and is composed of eleven federal district court judges who are designated by the Chief Justice of the United States.  Each judge serves for a maximum of seven years and their terms are staggered to ensure continuity on the Court.  By statute, the judges must be drawn from at least seven of the United States judicial circuits, and three of the judges must reside within 20 miles of the District of Columbia.  Judges typically sit for one week at a time, on a rotating basis. – [5]

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CURRENT 2018 FOREIGN INTELLIGENCE SURVEILLANCE COURT (FISC) MEMBERSHIP – 11 JUDGES

[6]

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FISC PRESIDING JUDGE ROSEMARY M. COLLYER — U.S. District Court for the District of Columbia

  • Designated Term: March 8, 2013 – March 7, 2020
  • Born 1945 in Port Chester, MD
  • Nominated by George W. Bush on August 1, 2002, to a seat vacated by Thomas Penfield Jackson.
  • Confirmed by the Senate on November 14, 2002, and received commission on November 15, 2002.
  • Assumed senior status on May 18, 2016.
  • Other Federal Judicial Service:
    Judge, Foreign Intelligence Surveillance Court, 2013-present; presiding judge, 2016-present
    Judge, Alien Terrorist Removal Court, 2016-present; chief judge, 2016-present
  • Education:
    Trinity College (now Trinity Washington University), B.A., 1968
    University of Denver College of Law, J.D., 1977
  • Professional Career:
    • Private practice, Colorado, 1977-1981
      Chairman, Federal Mine Safety and Health Review Commission, 1981-1984
      General counsel, National Labor Relations Board, 1984-1989
      Private practice, Washington, D.C., 1989-2002

FISC JUDGE JAMES EMANUEL BOASBERG — U.S. District Court for the District of Columbia

  • Designated Term: May 19, 2014 March 18, 2021
  • Born 1963 in San Francisco, CA
  • Nominated by Barack Obama on January 5, 2011, to a seat vacated by Thomas F. Hogan.
  • Confirmed by the Senate on March 14, 2011, and received commission on March 17, 2011.
  • Other Federal Judicial Service:
    Judge, Superior Court of the District of Columbia, 2002-2011
    Judge, Foreign Intelligence Surveillance Court, 2014-present
  • Education:
    Yale College, B.A., 1985
    University of Oxford, M.St., 1986
    Yale Law School, J.D., 1990
  • Professional Career:
    • Law clerk, Hon. Dorothy W. Nelson, U.S. Court of Appeals for the Ninth Circuit, 1990-1991
      Private practice, San Francisco, California, 1991-1994
      Private practice, Washington, D.C., 1995-1996
      Assistant U.S. attorney, District of Columbia, 1996-2002
  • Other Nominations/Recess Appointments:
    • Nominated to U.S. District Court for the District of Columbia, June 17, 2010; no Senate vote

FISC JUDGE RUDOLPH CONTRERAS — U.S. District Court for the District of Columbia

  • Designated Term: May 19, 2016 May 18, 2023
  • Born 1962 in Staten Island, NY
  • Nominated by Barack Obama on July 28, 2011, to a seat vacated by Ricardo M. Urbina.
  • Confirmed by the Senate on March 22, 2012, and received commission on March 23, 2012.
  • Other Federal Judicial Service:
    Judge, Foreign Intelligence Surveillance Court, 2016-present
  • Education:
    Florida State University, B.S., 1984
    University of Pennsylvania Law School, J.D., 1991
  • Professional Career:
    • Private practice, Washington, D.C., 1991-1994
      Assistant U.S. attorney, District of Columbia, 1994-2003, 2006-2012; chief, Civil Division, 2006-2012
      Assistant U.S. attorney and chief of Civil Division, District of Delaware, 2003-2006

FISC JUDGE ANNE C. CONWAY — U.S. District Court for the Middle District of Florida

  • Designated Term: May 19, 2016 May 18, 2023
  • Born 1950 in Cleveland, OH
  • Nominated by George H.W. Bush on July 24, 1991, to a seat vacated by George C. Carr.
  • Confirmed by the Senate on November 21, 1991, and received commission on November 25, 1991. Served as chief judge, 2008-2015.
  • Assumed senior status on August 1, 2015.
  • Other Federal Judicial Service:
    Judge, Foreign Intelligence Surveillance Court, 2016-present
  • Education:
    John Carroll University, B.A., 1972
    University of Florida College of Law, J.D., 1975
  • Professional Career:
    • Law clerk, Hon. John Reed, Jr., U.S. District Court, Middle District of Florida, 1975-1977
      Private practice, Orlando, Florida, 1978-1991

FISC JUDGE RAYMOND JOSEPH DEARIE — U.S. District Court for the Eastern District of New York

  • Designated Term: July 2, 2012 July 1, 2019
  • Born 1944 in Rockville Center, NY
  • Nominated by Ronald Reagan on February 3, 1986, to a new seat authorized by 98 Stat. 333.
  • Confirmed by the Senate on March 14, 1986, and received commission on March 19, 1986.
  • Served as chief judge, 2007-2011. Assumed senior status on April 3, 2011.
  • Other Federal Judicial Service:
    Judge, Foreign Intelligence Surveillance Court, 2012-present
  • Education:
    Fairfield University, B.A., 1966
    St. John`s University School of Law, J.D., 1969
  • Professional Career:
    • Private practice, New York City, 1969-1971, 1977-1980
      Assistant U.S. attorney, Eastern District of New York, 1971-1977, 1980-1982
      Chief, Appeals Division, 1971-1974
      Chief, General Crimes Section, 1974-1976
      Chief, Criminal Division, 1976-1977
      Executive assistant U.S. attorney, 1977
      Chief assistant U.S. attorney, 1980-1982
      U.S. attorney for the Eastern District of New York, 1982-1986
      Member, Judicial Conference of the United States, 2010-2011

FISC JUDGE CLAIRE V. EAGAN — U.S. District Court for the Northern District of Oklahoma

  • Designated Term: February 13, 2013 – May 18, 2019
  • Born 1950 in Bronx, NY
  • Nominated by George W. Bush on September 4, 2001, to a seat vacated by Thomas Rutherford Brett.
  • Confirmed by the Senate on October 23, 2001, and received commission on October 24, 2001.
  • Served as chief judge, 2005-2012.
  • Other Federal Judicial Service:
    U.S. Magistrate Judge, U.S. District Court, Northern District of Oklahoma, 1998-2001
    Judge, Foreign Intelligence Surveillance Court, 2013-present
  • Education:
    Trinity College (now Trinity Washington University), B.A., 1972
    Fordham University School of Law, J.D., 1976
  • Professional Career:
    • Law clerk, Hon. Allen E. Barrow, U.S. District Court, Northern District of Oklahoma, 1976-1978
      Private practice, Oklahoma, 1978-1998
  • Other Nominations/Recess Appointments:
    • Nominated to U.S. District Court for the Northern District of Oklahoma, August 2, 2001; no Senate vote

FISC JUDGE JAMES PARKER JONES — U.S. District Court for the Western District of Virginia

  • Designated Term: May 19, 2015 – May 18, 2022
  • Born 1940 in Tampa, FL
  • Nominated by William J. Clinton on December 12, 1995, to a seat vacated by James H. Michael, Jr.
  • Confirmed by the Senate on July 18, 1996, and received commission on August 1, 1996.
  • Served as chief judge, 2004-2010.
  • Other Federal Judicial Service:
    Judge, Foreign Intelligence Surveillance Court, 2015-present
    Judge, Alien Terrorist Removal Court, 2016-present
  • Education:
    Duke University, A.B., 1962
    University of Virginia School of Law, LL.B., 1965
  • Professional Career:
    • Assistant attorney general, Commonwealth of Virginia, 1965-1966
      Law clerk, Hon. Clement Haynsworth, U.S. Court of Appeals for the Fourth Circuit, 1966-1968
      Private practice, Abingdon, Virginia, 1968-1971
      Private practice, Bristol, Virginia, 1971-1995
      State senator, Virginia, 1983-1988
      Member, Virginia State Board of Education, 1990-1996
      Member, Judicial Conference of the United States, 2007-2011
  • Other Nominations/Recess Appointments:
    • Nominated to U.S. District Court for the Western District of Virginia, May 16, 1979; no Senate vote

FISC JUDGE ROBERT B. KUGLER — U.S. District Court for the District of New Jersey

  • Designated Term: May 19, 2017 – May 18, 2024
  • Born 1950 in Camden, NJ
  • Nominated by George W. Bush on August 1, 2002, to a seat vacated by Joseph E. Irenas.
  • Confirmed by the Senate on November 14, 2002, and received commission on December 4, 2002.
  • Other Federal Judicial Service:
    U.S. Magistrate Judge, U.S. District Court for the District of New Jersey, 1992-2002
    Judge, Foreign Intelligence Surveillance Court, 2017-present
  • Education:
    Syracuse University, B.A., 1975
    Rutgers School of Law — Camden, J.D., 1978
  • Professional Career:
    • Law clerk, Hon. John F. Gerry, U.S. District Court, District of New Jersey, 1978-1979
      Assistant prosecutor, Camden County, New Jersey, 1979-1981
      Deputy attorney general, State of New Jersey, 1981-1982
      Private practice, New Jersey, 1982-1992

FISC JUDGE MICHAEL W. MOSMAN — U.S. District Court for the District of Oregon

  • Designated Term: May 04, 2013 – May 03, 2020
  • Born 1956 in Eugene, OR
  • Nominated by George W. Bush on May 8, 2003, to a seat vacated by Robert E. Jones.
  • Confirmed by the Senate on September 25, 2003, and received commission on September 26, 2003.
  • Served as chief judge, 2016-present.
  • Other Federal Judicial Service:
    Judge, Foreign Intelligence Surveillance Court, 2013-present
  • Education:
    Ricks College (now Brigham Young University — Idaho), A.B., 1979
    Utah State University, B.S., 1981
    Brigham Young University, J. Reuben Clark Law School, J.D., 1984
  • Professional Career:
    • Law clerk, Hon. Malcolm Wilkey, U.S. Court of Appeals for the District of Columbia Circuit, 1984-1985
      Private practice, 1985
      Law clerk, Hon. Lewis F. Powell, Supreme Court of the United States, 1985-1986
      Private practice, Portland, Oregon, 1986-1988
      Assistant U.S. attorney, District of Oregon, 1988-2001
      U.S. attorney for the District of Oregon, 2001-2003

FISC JUDGE THOMAS B. RUSSELL — U.S. District Court for the Western District of Kentucky

  • Designated Term: May 19, 2015 – May 18, 2022
  • Born 1945 in Louisville, KY
  • Nominated by William J. Clinton on September 14, 1994, to a seat vacated by Edward H. Johnstone.
  • Confirmed by the Senate on October 7, 1994, and received commission on October 11, 1994.
  • Served as chief judge, 2008-2011.
  • Assumed senior status on November 15, 2011.
  • Other Federal Judicial Service:
    Judge, Foreign Intelligence Surveillance Court, 2015-present
    Judge, Alien Terrorist Removal Court, 2016-present
  • Education:
    Western Kentucky University, B.A., 1967
    University of Kentucky College of Law, J.D., 1970
  • Professional Career:
    • Private practice, Paducah, Kentucky, 1970-1994

FISC JUDGE F. DENNIS SAYLOR, IV — U.S. District Court for the District of Massachusetts

  • Designated Term: May 19, 2011 – May 18, 2018
  • Born 1955 in Royal Oak, MI
  • Nominated by George W. Bush on July 30, 2003, to a seat vacated by Robert E. Keeton.
  • Confirmed by the Senate on June 1, 2004, and received commission on June 2, 2004.
  • Other Federal Judicial Service:
    Judge, Foreign Intelligence Surveillance Court, 2011-present
  • Education:
    Northwestern University, B.S., 1977
    Harvard Law School, J.D., 1981
  • Professional Career:
    • Private practice, Boston, Massachusetts, 1981-1987, 1993-2004
      Assistant U.S. attorney, District of Massachusetts, 1987-1990
      Special counsel and chief of staff to the assistant attorney general, Criminal Division, U.S. Department of Justice, 1990-1993

FISA Amendments Act of 2008 – To amend the Foreign Intelligence Surveillance Act of 1978 to establish a procedure for authorizing certain acquisitions of foreign intelligence, and for other purposes.

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IN RE: CERTIFICATION OF QUESTIONS OF LAW TO THE FOREIGN INTELLIGENCE SURVEILLANCE COURT OF REVIEW
Related Case/Docket reference: 18-01
Posting Date: Tuesday, January 9, 2018
File: PDF icon FISCR 18 01 WCB Order 180109.pdf
File date: Tuesday, January 9, 2018 …… (2 pages, pdf file) (MOST CURRENT FISC ORDER)

[7]

Wed, 03/22/2017 Wed, 03/22/2017 IN RE OPINIONS & ORDERS OF THIS COURT ADDRESSING BULK COLLECTION OF DATA UNDER THE FOREIGN INTELLIGENCE SURVEILLANCE ACT Misc. 13-08 PDF icon Misc 13-08 Order.pdf ….. (March 22, 2017 — screenshot part of first page [2 pages, pdf file] order)

[8]

 

“The judges are hand-picked by someone who, through his votes on the Supreme Court, we have come to learn has a particular view on civil liberties and law enforcement,” Ruger said. “The way the FISA is set up, it gives him unchecked authority to put judges on the court who feel the same way he does.”- [2]

 

Supreme Court says FISA spying is ‘none of our business’

The Supreme Court of the United States has decided that individuals and organizations cannot challenge the constitutionality of FISA’s global surveillance regime without proof that they, in fact, are being spied upon, despite the fact that no one can know for sure that he’s being spied upon until after being arrested and shown the government’s evidence—to the extent that, too, isn’t deemed too secret to share. Justice Alito wrote the majority opinion for the five justices you’d suspect; Justice Breyer dissented on behalf of the other four. [9]

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SOURCES: 

Featured image credit TenthAmendmentCenter

[1]  TenthAmendment

[2]  Reuters

[3]  Wikipedia

[4]  Truthcdm.com

[5]  FISA.uscourt

[6] FISA.uscourts

[7] FISA.uscourts

[8] FISA.uscourts

[9] DailyKos