Judge Timothy M. Tymkovich recently became the first Coloradan to sit on the bench of the nation’s secretive surveillance court system, which is charged with reviewing the government’s applications for gathering foreign intelligence inside the United States.

Tymkovich, who has been a judge on the Denver-based U.S. Court of Appeals for the 10th Circuit since 2003, began his seven-year term on the Foreign Intelligence Surveillance Court of Review on Nov. 1. Chief Justice John G. Roberts Jr. tapped Tymkovich and two other federal judges for the part-time assignment on the equivalent of a wiretapping appeals court.

“I’m sure I did express an interest in international matters in the past, primarily because of my judicial education projects in Ukraine and the fact that we’ve hosted here in Denver, at the 10th Circuit, numerous delegations of foreign judges over the years,” Tymkovich told Colorado Politics.

As for why Roberts chose him specifically, Tymkovich could only speculate that his previous tenure as chief judge of the 10th Circuit, coupled with his service on various judicial committees, put him “somewhat on the radar” by the time Roberts’ staff called and asked if Tymkovich was willing to sit on the surveillance court. 

Congress enacted the Foreign Intelligence Surveillance Act of 1978 (FISA) to set out a framework for national security-related intelligence gathering, reining in the executive branch’s previous reliance on warrantless surveillance. The law created two FISA courts: the Foreign Intelligence Surveillance Court, which handles surveillance applications from the government, and a reviewing court that hears the government’s appeal when an application is denied.

Unlike the rest of the court system, FISA judges almost always hear from just one party: the government. According to the FISA courts’ statistics, in 2022 there were 358 applications for surveillance, only 23 of which – 6% – were partially or fully denied.

“This is designed by Congress to review applications for documents, electronic surveillance and the like, along the lines of federal subpoenas or probable cause warrants,” Tymkovich said. “Coloradans ought to be interested in it like they are interested in the Department of Justice and the 10th Circuit and the National Security Agency.”

Most work takes place at the lower court, where 11 federal trial judges from around the country are appointed by the chief justice. They rotate to Washington, D.C. for one week at a time to review the government’s requests to monitor suspected foreign agents. The application prompts a back-and-forth between the government, the judge and a staff attorney to address concerns or obtain further information about the parameters of the request.

The judge may approve an application, modify its scope, impose conditions, conduct a hearing or deny the application. In uncommon instances of denial, the government may appeal to the reviewing court. In addition to Tymkovich, a George W. Bush appointee, current members include a Barack Obama appointee from the New Orleans-based Fifth Circuit and a Bush appointee from the Southern District of Georgia’s trial court.

Critics have taken issue with several aspects of the FISA courts: A lack of transparency means judges’ full rulings are not subject to public scrutiny. Republican-appointed judges have historically outnumbered Democratic appointees. Appeals can only help the government, and not overturn an approved surveillance application.

Civil liberties watchdogs have also warned about the program now known as Section 702, in which the government seeks court approval for a surveillance framework that broadly targets “non-U.S. persons,” while potentially sweeping up the communications of American citizens or U.S. residents in the process. Congress will next decide whether to reauthorize Section 702 in April.

Tymkovich declined to say whether he has heard any FISA appeals to date, but noted the reviewing court operates differently from the main FISA court, only traveling to D.C. or meeting remotely as needed. He has reviewed the past public and confidential decisions of the FISA courts and asked one of his current law clerks to work with him on surveillance matters.

“Congress set it up this way because the system involves mostly classified information, so there’s a need for secrecy in large part,” Tymkovich said. “To the extent more information should be available, I think that’s really a part of the congressional, political oversight.”

Tymkovich did approve of one unique aspect of the FISA courts: the ability to appoint an “amicus” – or friend of the court – as an expert who can weigh in on a novel or significant legal issue in addition to the government’s perspective.

“I’ve always advocated for more amicus participation at the circuit court level,” he said. “We do have a lot of novel and interesting issues where the court would benefit from multiple voices. I’ve always told the public defenders and the U.S. attorneys to be paying closer attention to our docket because they might want to provide amicus support even if it’s a case from a different state or a different region.”

Overall, Tymkovich felt other judges would be interested in taking on the FISA courts’ unique work, even if it still resembles the larger judicial process.

“It’s really no different than getting a new case before you and you have to research and analyze and understand the statutory scheme,” he said. “Coming up to speed on the court is really like coming up to speed on a case involving a complex statute. … In that sense, it’s quite comparable to what I do on a day-to-day basis.”