Indiana Law Journal Volume 91 Issue 4 Article 4 Summer 2016 The Two Faces of the Foreign Intelligence Surveillance Court Emily Berman University of Houston Law Center,
[email protected] Follow this and additional works at: https://www.repository.law.indiana.edu/ilj Part of the Constitutional Law Commons, Courts Commons, National Security Law Commons, Privacy Law Commons, and the Rule of Law Commons Recommended Citation Berman, Emily (2016) "The Two Faces of the Foreign Intelligence Surveillance Court," Indiana Law Journal: Vol. 91 : Iss. 4 , Article 4. Available at: https://www.repository.law.indiana.edu/ilj/vol91/iss4/4 This Article is brought to you for free and open access by the Law School Journals at Digital Repository @ Maurer Law. It has been accepted for inclusion in Indiana Law Journal by an authorized editor of Digital Repository @ Maurer Law. For more information, please contact
[email protected]. The Two Faces of the Foreign Intelligence Surveillance Court EMILY BERMAN* When former National Security Agency contractor Edward Snowden leaked a massive trove of information about secret intelligence-collection programs implemented under the Foreign Intelligence Surveillance Act in the summer of 2013, U.S. surveillance activities were thrust to the forefront of public debate. This debate included the question of whether and how to reform the Foreign Intelligence Surveillance Court (“FISA Court”), the statutorily created secret court that reviews government applications to conduct surveillance in the United States. This discussion, however, has underemphasized a critical feature of the way the FISA Court works. As this Article will show, since the terrorist attacks of September 11, 2001 (“9/11”), the FISA Court has been playing not only its traditional role of “gatekeeper,” but also the additional—and entirely different—role of “rule maker.” This is the first scholarly examination of this dichotomy and its implications for reform.