THERE IS A COMMON misconception that the Foreign Intelligence Surveillance Court, of which I am a member, is a "secret" court and that disclosures about it are forbidden. Although the applications we consider are classified, the court itself is not secret. It was created by the Foreign Intelligence Surveillance Act (FISA) in 1978 to consider applications made by the FBI and other federal agencies to conduct electronic surveillance in the United States for foreign intelligence—as opposed to ordinary law enforcement—purposes. The statute was later amended to permit physical searches as well.

The FISA Court was established to provide judicial oversight to the gathering of foreign intelligence for national security purposes. It operated in relative obscurity for many years, but Sept. 11, 2001, and the Patriot Act enacted shortly thereafter, have thrust the court into new—though reluctant—prominence. The 11 U.S. district judges of the court (from 11 different circuits) sit individually at regular intervals to consider FISA applications. It must be proven to the court’s satisfaction that a "significant purpose" of the search or surveillance is to acquire foreign intelligence information. There are other statutory provisions that control how the intelligence may be gathered, to whom and when it may be made accessible, and how access to and use of such information must be minimized.

I was privileged to be appointed to the court by Chief Justice William H. Rehnquist in May 2001 for a seven-year term. Each of the FISA judges sits independently and hears cases at the highly secure FISA Court facility in Washington, D.C. The judges meet together each November to discuss court procedures and rules and in May at an annual convocation of the court. Each application we consider is certified by an intelligence agency official, supported by the sworn affidavit of the investigating agent and approved by the Attorney General or the Acting Attorney General. Only then is an ex parte hearing convened before the FISA judge, during which the agent, under oath, and a Justice Department attorney answer questions of the court.

The applicant must prove to the court that there is probable cause to believe that the target of the surveillance (or physical search) is a foreign power or an agent of a foreign power and that the facilities targeted are being (or are about to be) used by that foreign power or agent. Applications are thoroughly considered and, although regularly approved, many are withdrawn, revised or resubmitted with additional information before approval. The judges are not "rubber stamps," and the process works only because the executive and judicial branches both perform their functions conscientiously.

In the post-September 11 world, the security of our nation requires the increasing number of surveillances and searches that are being approved by the FISA Court. That the applications are being dealt with carefully and pursuant to strict statutory requirements is appropriate and should afford consolation to all citizens in these perilous times.

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