Rep. Schiff To Introduce Legislation Requiring Foreign Intelligence Surveillance Court Judges to be Nominated by the President and Confirmed by the Senate

Washington, DC – Today, Rep. Adam Schiff (D-CA), a senior member of the Intelligence Committee, announced he will introduce legislation which would require that the 11 judges on the Foreign Intelligence Surveillance Court (FISC) be nominated by the President and confirmed by the Senate. The bill would maintain the 7-year term of service on the FISC.

"In order to ensure that the Foreign Intelligence Surveillance Court remains a truly independent check on the executive branch, these important judges should be confirmed by the Senate,” said Rep. Schiff. “This move would likely result in a more diverse set of judges on the Court, and strengthen the checks and balances that Congress intended to create when the FISC was established. In light of the significance of the FISA Court opinions, their classified nature and their virtual unreviewability, the American people – through the Senate – should have the opportunity to probe nominees on their Fourth Amendment views and other key matters.”

The Foreign Intelligence Surveillance Court (FISC) is a special U.S. federal court created by the Foreign Intelligence Surveillance Act (FISA) of 1978. The FISC is tasked with reviewing and authorizing requests for surveillance authorities for national security purposes. Because of the sensitive nature of these requests, the FISC is a “secret court” and FISC rulings, orders, and other deliberations are highly classified. 

The FISC was originally composed of seven district judges, from seven different circuits throughout the country, appointed by the Chief Justice of the United States to serve for a maximum of seven years. In 2001, the Patriot Act increased the number of judges on the Court from seven to eleven, with three required to live within 20 miles of the District of Columbia. The Chief Justice appoints a Presiding Judge for the court from amongst these eleven judges, and also appoints three judges to serve on the Court of Review, the venue for government appeals of FISC rulings. As a result of the current selection process, 10 of the 11 judges currently serving on the FISC were appointed to the federal bench by Presidents from one political party.

Schiff continued, “While judges often talk of ‘calling balls and strikes,’ the range of this court goes far beyond that – overseeing the constitutionality and scope of the programs, in addition to ruling on individual warrants and cases. This legislation will help ensure we have true checks and balances when it comes to the judges who are given the responsibility of overseeing our most sensitive intelligence gathering and national security programs.”

Schiff also recently introduced the Ending Secret Law Act. This bipartisan legislation would require the Attorney General to declassify significant Foreign Intelligence Surveillance Court opinions, allowing Americans to know how the Court has interpreted the legal authorities created under Section 215 of the PATRIOT Act and Section 702 of the FISA Amendments Act.