AP Reports Federal appeals judge in Boston named top judge of wiretap court
Bruce Selya, a judge since 2005 with the 1st U.S. Circuit Court of Appeals has been named chief judge of The U.S Foreign Intelligence Surveillance Court of Review. This court handles appeals over wiretaps of suspected terrorists or spies. It was created to hear government appeals when lower courts reject the government's application.
The Providence Journal reports Selya will take over as chief judge on May 19 and his term will run through 2012. Selya, from Rhode Island, was a federal judge before being appointed to the Federal Appeals Court in 1986.
A Congressional Research Service Report, The U.S. Foreign Intelligence Surveillance Court
and the U.S. Foreign Intelligence Surveillance Court of Review: An Overview, dated January 24, 2007, by Elizabeth B. Bazan, Legislative Attorney, American Law Division provides a 15 page report. The Report's Summary states:
The national debate regarding the National Security Agency’s Terrorist Surveillance Program (TSP) focused congressional attention on the U.S. Foreign Intelligence Surveillance Court and the U.S. Foreign Intelligence Surveillance Court of Review created by the Foreign Intelligence Surveillance Act. Congressional interest in these courts has been heightened by the January 17, 2007, letter from Attorney General Gonzales to Chairman Leahy and Senator Specter advising them that a Foreign Intelligence Surveillance Court judge had “issued orders authorizing the Government to target for collection international communications into or out of the United States where there is probable cause to believe that one of the communicants is a member or agent of al Qaeda or an associated terrorist organization,” stating that all surveillance previously occurring under the TSP will now be conducted subject to the approval of the Foreign Intelligence Surveillance Court, and noting that the President has determined not to reauthorize the TSP when the current authorization expires. This report examines the creation, membership, structure, and jurisdiction of these courts. It will be updated as subsequent events may require.
Wikipedia gives a general overview of the topic,
The United States Foreign Intelligence Surveillance Court of Review is a U.S. federal court authorized under 50 U.S.C. § 1803 and established by the Foreign Intelligence Surveillance Act of 1978 (known as FISA for short). It is a three judge panel whose sole purpose is to review denials of applications for electronic surveillance warrants (called FISA warrants) by the United States Foreign Intelligence Surveillance Court (or FISC). Each judge of the FISC, in turn, has the jurisdiction to oversee requests for surveillance warrants by federal police agencies (primarily the F.B.I.) against suspected foreign intelligence agents inside the United States. Any appeals from the Court of Review are made directly to the Supreme Court. Like a grand jury, the Court of Review is not an adversarial court; rather, the only party to the court is the federal government, although other parties may submit briefs as amici curiae. Records of the proceedings are kept, but they are classified, although copies of the proceedings with sensitive information redacted may be made public.The judges of the Court of Review are district or appellate federal judges, appointed by the Chief Justice of the United States for seven year terms. The terms are staggered so that there are at least two years between consecutive appointments. A judge may be appointed only once to either this court or the FISC.
The Court of Review was called into session for the first time in 2002 in a case referred to as "In Re Sealed Case No. 02-001". The FISC had granted a FISA warrant to the F.B.I., but had placed restrictions on its use; specifically, the F.B.I. was denied the ability to use evidence gathered under the warrant in criminal cases. The Court of Review allowed a coalition of civil liberties groups, including the American Civil Liberties Union and the Electronic Frontier Foundation, to file briefs as amici curiae arguing against the F.B.I's new surveillance regulations. The Court of Review held that the restrictions that the FISC had placed on the warrant violated both FISA and the USA PATRIOT Act and that there was no constitutional requirement for those restrictions.
Current composition of the court listed by Name, Circuit, Appointed, Expiration of Appointment Edward Leavy (presiding), Ninth, September 25, 2001, May 18, 2008 Ralph K. Winter, Jr., Second, May 18, 2003, May 18, 2010 Bruce Marshall Selya, First, October 8, 2005, May 18, 2012 List of former judges Laurence H. Silberman, D.C., May 18, 1996, May 18, 2003 Ralph B. Guy, Jr., Sixth, October 8, 1998, May 18, 2005 The exact dates of Judge Silberman's tenure are uncertain.
In 2002, Anita Ramasastry, an Assistant Professor of Law at the University of Washington School of Law in Seattle and the Associate Director of the Shidler Center for Law, Commerce & Technology wrote a critcal review entitled, "THE FOREIGN INTELLIGENCE SURVEILLANCE COURT OF REVIEW CREATES A POTENTIAL END RUN AROUND TRADITIONAL FOURTH AMENDMENT PROTECTIONS FOR CERTAIN CRIMINAL LAW ENFORCEMENT WIRETAPS"
While "A history of Foreign Intelligence Surveillance Court" indicates:
Congress in 1978 established the Foreign Intelligence Surveillance Court as a special court and authorized the Chief Justice of the United States to designate seven federal district court judges to review applications for warrants related to national security investigations. Judges serve for staggered, non-renewable terms of no more than seven years, and must be from different judicial circuits. The provisions for the court were part of the Foreign Intelligence Surveillance Act (92 Stat. 1783), which required the government, before it commenced certain kinds of intelligence gathering operations within the United States, to obtain a judicial warrant similar to that required in criminal investigations. The legislation was a response to a report of the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities (the “Church Committee”), which detailed allegations of executive branch abuses of its authority to conduct domestic electronic surveillance in the interest of national security. Congress also was responding to the Supreme Court’s suggestion in a 1972 case that under the Fourth Amendment some kind of judicial warrant might be required to conduct national security related investigations.Warrant applications under the Foreign Intelligence Surveillance Act are drafted by attorneys in the General Counsel’s Office at the National Security Agency at the request of an officer of one of the federal intelligence agencies. Each application must contain the Attorney General’s certification that the target of the proposed surveillance is either a “foreign power” or “the agent of a foreign power” and, in the case of a U.S. citizen or resident alien, that the target may be involved in the commission of a crime.
The judges of the Foreign Intelligence Surveillance Court travel to Washington, D.C., to hear warrant applications on a rotating basis. To ensure that the court can convene on short notice, at least one of the judges is required to be a member of the U.S. District Court for the District of Columbia. The act of 1978 also established a Foreign Intelligence Surveillance Court of Review, presided over by three district or appeals court judges designated by the Chief Justice, to review, at the government’s request, the decisions the Foreign Intelligence Surveillance Court. Because of the almost perfect record of the Department of Justice in obtaining the surveillance warrants and other powers it requested from the Foreign Intelligence Surveillance Court, the review court had no occasion to meet until 2002. The USA Patriot Act of 2001 (115 Stat. 272) expanded the time periods for which the Foreign Intelligence Surveillance Court can authorize surveillance and increased the number of judges serving the court from seven to eleven.
