The furor over recently exposed government surveillance programs has posed an abundance of political challenges for both President Obama and Congress. Relatively unmentioned in all of this, however, is the role of the courts — specifically, the Foreign Intelligence Surveillance Court, known as the FISA court, and how its role has changed since the terrorist attacks of Sept. 11, 2001.
Obama has said that there are tradeoffs between privacy and security in an age of international terrorism. But he emphasized that the two surveillance programs exposed this month were repeatedly authorized and reviewed by Congress, with federal judges "overseeing the entire program throughout."
Despite being overseen by judges, they are not examined in the way that a normal application for a search warrant is.
For decades, the government conducted warrantless wiretaps of people in the United States deemed to be a national security threat. But in 1978, after the U.S. Supreme Court ruled such warrantless searches unconstitutional, Congress passed legislation that created a special intelligence court to review government requests for warrants. The law was tweaked over the years, but the core of the court's powers remained unchanged for decades. If the government wanted to listen in on conversations or other communications in the U.S., it had to get a warrant from the foreign intelligence court based on individualized suspicion and probable cause to believe that national security was being compromised.
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