Overview of Donohue Intelligence Law

In 1978, Congress passed the Foreign Intelligence Surveillance Act (FISA) to provide the sole means via which Executive agencies could engage in electronic surveillance on U.S. soil.  The law responded to public outcry at the extent to which the U.S. intelligence community was collecting information on citizens,  and the Supreme Court's determination that the Fourth Amendment prohibited the government from engaging in electronic surveillance for domestic security purposes without judicial process. 

The statute created two specialized Article III courts: the Foreign Intelligence Surveillance Court (FISC) and the (appellate) Foreign Intelligence Court of Review (FISCR).  FISC's role was to examine requests for surveillance orders to ascertain whether the government had met its burden of establishing probable cause that the target was a foreign power or an agent of a foreign power, and likely to use the facility to be placed under surveillance, prior to issuing orders. 

In 1994, Congress expanded the Court's remit to include orders for physical search.  In 1998, it incorporated the authority to use pen register and trap and trace (PRTT) (capturing the numbers dialed and the calls received), as well as to collect certain business records. 

These laws, collectively, are referred to as "Traditional FISA." In carrying out its duties under these authorities, the FISC initially functioned as a warrant-granting body, issuing more than 14,000 orders and just one opinion between 1978 and 2001.  Applications were sealed and procedures conducted in camera and ex parte. 

Starting in 2001, however, Congress began making significant changes to the law.  What is now referred to as "Modernized FISA" expanded the Government's power and ushered in an era of bulk and programmatic collection of citizens' and non-U.S. persons' data.  As technology continued to advance, the government sought novel statutory and doctrinal interpretations, forcing the FISC/FISCR to consider constitutional and statutory limits and whether government action comported with the law. 

Beset by difficult questions, the courts' roles fundamentally altered.  Instead of just issuing orders, the FISC/FISCR now routinely rule on critically-important First, Fourth, and Fifth Amendment questions, the answers to which, daily, impact every citizen.  Their decisions have an impact on separation of powers, common law, and the rule of law. The Court examines complex matters of statutory construction.  And it monitors how the government wields its power.  FISC/FISCR opinions also reveal the extent to which government actions comport with—or violate—court directions and the law. 

In reflection of the growing volume and importance of the specialized court's decisions, the FISC/FISCR, Executive branch, amici, non-specialized Article III judges (and their clerks and parties before them), regularly cite to FISC/FISCR opinions as precedent.  In Clapper v. Amnesty International, the Supreme Court argued that denying litigants standing to challenge surveillance in no way insulated the statute from constitutional review, as the FISC would address such questions. 

An important and robust body of law is now emerging from a court that, for decades, has been largely shielded from public inspection. Nearly 90 declassified FISC/FISCR opinions and 290 orders are now in the public domain, as are hundreds of FISC/FISCR filings. 

Even as the role of the FISC/FISCR has changed, ordinary Article III courts are increasingly having to confront FISA-related constitutional and statutory questions as a result of two foundational changes post-9/11. First, in 2001, the USA PATRIOT Act, and a subsequent decision by the FISCR, allowed the Government to use FISA not just when foreign intelligence collection is the primary purpose for surveillance, as was previously the case, but also when it is only a significant purpose —including when the information being sought is primarily wanted for matters related to ordinary criminal law.  This change was almost immediately followed by a decrease in the number of ordinary, criminal Title III warrants being sought and an increase in the number of FISA orders issued. 

Second, in 2013 DOJ changed its policy, informing criminal defendants when information derived from FISA is used against them. The shift followed a tumultuous exchange: in Clapper, Justice Alito, writing for the Court, pointed to statutory requirements that the Government inform criminal defendants when FISA information had been used—an argument raised by the U.S. Solicitor General during argument—to support the assertion that the lack of standing in the immediate case in no way foreclosed future constitutional challenges.  But just a few months later, a New York Times article revealed that DOJ had routinely refused to do just that—prompting a furious Solicitor General to engineer a change in Department policy.  Although the definition of "derived from" remains classified, an increasing number of criminal defendants are being informed that evidence against them derives in some measure from FISA.

Because of these shifts, there are now more than 125 FISA-related cases in regular Article III courts—more than the total number of FISC/FISCR cases that have been made publicly available.

Despite the increasing importance of the courts' jurisprudence, FISC/FISCR opinions and orders have not hitherto been easily accessible. Less than two dozen declassified and redacted opinions are available on the court's web site. Some opinions are only available through the Office of the Director of National Intelligence (ODNI). Others are only available from individuals who have submitted Freedom of Information Act requests or engaged in litigation with the Department of Justice to obtain the materials— and decided to place them online. Neither Westlaw nor Lexis, moreover, carry most of the opinions, despite FISA issues regularly now appearing in ordinary Article III courts. No site has all of the declassified and redacted court filings available.

The law has become increasingly complex. Fourteen statutes now constitute FISA. The NSA, FBI, CIA, and National Counterterrorism Center have different targeting and minimization procedures, as applicable, which frequently change. The DOJ, CIA, ODNI, and DOD have different guidelines for implementing FISA, which differ in important yet subtle ways from those adopted in regard to Executive Order 12,333. Even the formal reports on how FISA is being implemented are difficult to follow: fifteen separate statutory provisions require specific or annual reporting from the FISC/FISCR, the Administrative Office of the U.S. Courts, the Director of National Intelligence, the Attorney General, DOJ's Office of Inspector General, and the NSA Office of Inspector General. Dozens of other reports have been issued by the Civil Liberties and Privacy Office at the NSA, the House of Representatives, the DOJ, the FBI, the Privacy and Civil Liberties Oversight Board, the President's Review Group, and others.

Congress has the responsibility of debating provisions set to sunset and determining the scope of future surveillance authorities, yet much of the information on which an educated discussion could be based is not easily accessible to Members or their staff, or their constituents. A similar dearth of information hinders the ability of companies served with FISA orders to evaluate them with the benefit of the court's jurisprudence and ready access to the scope of the law. It further impacts civil society, think tanks, and scholarship that could shed light on this important area.

This website is therefore dedicated to ensuring public access to the declassified and redacted opinions, as well as the relevant laws, legislative histories, judicial reports, congressional reports, agency guidelines, declassified and redacted minimization and targeting procedures, and other materials essential to U.S. foreign intelligence collection. Specifically, the collection includes:

• foreign intelligence-related statutory and regulatory instruments;
• legislative histories of all statutory changes to FISA;
• declassified opinions and orders issued by the FISC/FISCR;
• declassified FISC/FISCR court filings;
• FISA-related cases in non-specialized Article III courts;
• statutorily-required, department, and inspectors general reports on the operation of FISA and formal correspondence between the FISC/FISCR and Congress; and
• an annotated bibliography of select secondary sources related to FISA, the FISC/FISCR, and foreign intelligence law.

In addition to FISA-related materials, the site incorporates background on other laws and Executive Orders that round out foreign intelligence law, such as the National Security Letter statutory provisions and annual reports, and Executive Order 12,333 with its associated departmental guidelines.

The website is meant as a resource for the judiciary, clerks, legal advisors, amici, government attorneys, agency and department inspectors general, members of Congress and their staff, lawyers, scholars, journalists, students, law firms, corporations, members of the public, and anyone with an interest in or need to understand the legal framework for U.S. foreign intelligence collection.

Because many of the dates and filing references in the FISC/FISCR opinions and orders remain redacted, I have assigned each document a Georgetown identification (GID) number, preceded by the Court issuing the opinion or order in the following format: GID.C.##### for FISC and GID.CA.##### for FISCR. Each time an opinion or order is released with different material redacted, it is issued a unique identifier. Individual records contain the recommended bibliographic reference for Bluebook and Maroonbook purposes.

All opinions and orders and FISC/FISCR filings are text searchable, as are most of the statutory and regulatory authorities and official reports and correspondence, as well as the annotated bibliography. Owing to intellectual property protections, the legislative histories, non-specialized Article III decisions, and law review articles are not directly searchable. They are available through Lexis and Westlaw and, in some cases, Hein or Google, with links provided. I will continue to update this site as new materials become available.

I am deeply grateful to Jeremy McCabe at the Georgetown Law Library for his help researching and obtaining many of the materials included in the collection. Leah Prescott has been central in building the site and ensuring that the material is available and, to the greatest extent possible, searchable. I will continue to update the material on a semi-annual basis, as new cases, laws, guidelines, reports, and secondary sources become available. If there are any additional materials that you think should be included, please contact me at lkdonohue@law.georgetown.edu.

Laura K. Donohue, J.D., Ph.D. (Cantab.)
Agnes N. Williams Research Professor and Professor of Law