An Unclassified Look at the Foreign Intelligence Surveillance Courts

• Author: Hon. Richard C. Tallman, Tania M. Culbertson
• Pages: 47-51

Published in Litigation, Volume 48, Number 2, Winter 2022. © 2022 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not

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An Unclassified Look at the

Foreign Intelligence

Surveillance Courts

HON. RICHARD C. TALLMAN AND TANIA M. CULBERTSON

Judge Tallman is a senior judge on the U.S. Circuit Court for the Ninth Circuit and a retired judge on the

Foreign Intelligence Surveillance Court of Review. Tania M. Culbertson is a former law clerk to Judge Tallman.

Article III, section 1, of the U.S. Constitution provides that “the

judicial Power of the United States, shall be vested in one su-

preme Court, and in such inferior Courts as the Congress may

from time to time ordain and establish.” Congress created two

special courts to oversee the activities of the U.S. intelligence

community and to better protect the activities of Americans in

1978 by enacting the Foreign Intelligence Surveillance Act (FISA),

50 U.S.C. §§1801–1885c. While one special court, formally titled

the Foreign Intelligence Surveillance Court but more commonly

called the FISA court, has been discussed frequently, especially

over the past five years, little has been said about how it oper-

ates. Even less known is the Foreign Intelligence Surveillance

Court of Review, where appeals from the lower FISA court’s

decisions may be taken.

Practicing before these specialty courts, with their distinctive

procedures, presents challenges for litigators. The FISA courts

are becoming more transparent after recent legislative reforms.

The increased transparency should reveal to the bar and the pub-

lic the care and discretion that imbues the work of the judges,

attorneys, and other legal professionals in these tribunals as they

seek to balance national security demands against the privacy of

American citizens.

Litigation in these tribunals primarily involves the members

of the nation’s intelligence community. Occasionally, private

litigants who have received orders directing the disclosure of

information or the provision of necessary technical assistance to

acquire information may be involved. Private litigants also may

appear, seeking more information on the FISA courts’ activities.

Before 2004, the intelligence community was supervised by

the director of central intelligence, who also ran the Central

Intelligence Agency (CIA). In 2004, the Intelligence Reform

and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, 118

Stat. 3638, established the Office of the Director of National

Intelligence (ODNI) to better unify and manage the efforts of

the intelligence community. The director of national intelligence

leads the intelligence community and serves as the principal

intelligence advisor to the president. ODNI is an administrative

and budget office that oversees the overall efforts of the intel

-

ligence community but does not itself possess any collection

capabilities. That work falls to the 17 other intelligence com-

munity members, including the CIA—an independent agency—

and agencies within the Department of Defense (including the

National Security Agency (NSA), the Defense Intelligence Agency,

the National Geospatial-Intelligence Agency, and military in-

telligence units) and the Departments of Energy, Homeland

Security, State, Treasury, and Justice (including the National

Security Branch of the Federal Bureau of Investigation (FBI)

and the Drug Enforcement Administration).