By Winston Smith
“Many people are surprised to learn that there is no ‘right to privacy’ in the Constitution.”
Those following the investigation of Donald Trump and alleged ties and collusion to Russia have heard mention of a FISA Court. In fact, the national media have come ablaze regarding their discussions of FISA and, specifically, FISA Courts. Much of the public’s recent attention on FISA and FISA Courts have come following the release of Rep, Devin Nunes’ (R) memo. As stated in the memo, its intent is to “1) raise concerns with the legitimacy and legality of certain DOJ and FBI interactions with the Foreign Intelligence Surveillance Court (FISC), and 2) represent a troubling breakdown of legal processes established to protect the American people from abuses related to the FISA process.”
It is clear that the FISA Court played an integral role, but what exactly is its role?
The Foreign Intelligence Surveillance Act (FISA) (50 U.S.C. ch. 36) became law on October 25, 1978. Generally, FISA “sets out procedures for physical and electronic surveillance and collection of foreign intelligence information.” While FISA initially addressed electronic surveillance, other types of surveillance such as “pen registers and trap and trace devices, physical searches, and business records” were later added to FISA’s purview. What is important to note is that FISA is not supposed to be used for domestic surveillance. Indicated in its name, FISA is used to provide “oversight of foreign intelligence surveillance activities while maintaining the secrecy necessary to effectively monitor national security threats.”
FISA also established the United States Foreign Intelligence Surveillance Court (FISC), what is colloquially referred to as FISA Courts. The purpose of the FISA Court is simply to issue search warrants if the requirements are met. What is important to note is that these hearings are nonpublic and ex parte, with only the government is present. In addition “‘FISA does not provide a mechanism for the Court to invite the views of nongovernmental parties’.”
Does the Nunez memo reveal substantial deficits in FISA?
Nunes’ memo alleges that “material and relevant information was omitted” from the Carter Page FISA application. Specifically, it states:
However, the FISC’s rigor in protecting the rights of Americans, which is reinforced by 90-day renewals of surveillance orders, is necessarily dependent on the government’s production to the court of all material and relevant facts. This should include information potentially favorable to the target of the FISA application that is known by the government.
The memo then continues to outline that the Carter Page FISA application did not provide to the FISA Court “an accounting of the relevant facts. However, our findings indicate that, as described below, material and relevant information was omitted”
Does FISA (50 U.S.C ch. 36) require such a strict mandate that the government release all evidence? Not really. 18 USC § 1804 states that:
Each application shall require the approval of the Attorney General based upon his finding that it satisfies the criteria and requirements of such application as set forth in this subchapter. It shall include—
(3) a statement of the facts and circumstances relied upon by the applicant to justify his belief that—
(A) the target of the electronic surveillance is a foreign power or an agent of a foreign power; and
(B) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power;
What is clear is that the government does not need to submit all the facts in a FISA application. There is a clear difference between “facts and circumstances relied upon by the applicant to justify his belief” and “all material and relevant facts.” Therefore, the Nunes memo is written with a fundamental misunderstanding of the law at hand. This memo is wrong.
However, this doesn’t mean that FISA and FISA Courts are bastions of civil liberties. In fact, it shows quite the opposite. When all that is required to obtain a FISA warrant are cherry-picked facts by a government agent, what is the use of any oversight?
From its creation, “many lawmakers saw constitutional problems in a court that operated in total secrecy and outside the normal “adversarial” process.” This feeling was swayed in that there are similarities between FISA and normal search warrant proceedings and that the government would only be able to use FISA warrants to monitor foreign entities, not citizens.
We now know this was foolish.
Documents leaked by Edward Snowden in 2013 showed that “the government was collecting a massive number of Americans’ phone calls and e-mails ‘incidentally’ or ‘inadvertently’ under Section 702 of the FISA Amendments Act (FAA) — a statute that permits the government to target only non-citizens located overseas — and using this information in domestic criminal investigations.”
In addition, while FISA once required court orders for the surveillance of citizens, “it now happens through massive collection programs (known as “programmatic surveillance”) involving no case-by-case judicial review.” Permissible targets are now no longer limited just to foreign entities.
Lastly, the government almost always wins at FISC. In fact, between 1979 and 2012, federal agencies submitted 33,900 requests, which were approved 99.97% of the time. There have been exactly 11 denials. A total of 11 denials in over 38 years? That’s ridiculous.
Connor Clarke, Ph.D. in Law candidate at Yale Law School argues against this criticism. In his February 2014 article in the Stanford Law Review titled Is the Foreign Intelligence Surveillance Court Really a Rubber Stamp?, he argues that:
Because it is costly to make an ex parte application (in time, resources, and reputation) and because the executive has long-running knowledge of how the FISC treats applications, there is little reason to expect agencies to submit losing requests. And while the rarity of ex parte proceedings might make this outcome seem unprecedented or extraordinary, other ex parte proceedings—like those for Title III wiretaps and delayed-notice warrants—display equally lopsided results: the government “wins” almost 100% of the time.
However, this only follows insomuch as it shows that ex parte proceedings are ripe for the picking by the government. This is not truly an argument showing that FISA is good, it is showing that FISA is no worse than any other ex parte proceeding, which is truly troubling.
The government has established a series of processes by which it can request permission to establish surveillance on almost anyone, and get those requests approved 99.97% of the time. It is absolutely clear that the FISA Court is weak. Changes to the basic structure are needed. Desperately.
There are many changes to FISA that could help mitigate its abuses. In their report titled What Went Wrong With The FISA Court, Elizabeth Goitein and Faiza Patel provide some options for reform. For example, they propose removing the ex parte system and introduce the adversarial process with a permanent public interest advocate or from certain individuals or interest groups as amici curiae.
The reinstatement of the foreign power/agency of a foreign power requirement is another option that would provide substantial change to the FISA process. This would mean that “[t]he government should be permitted to conduct surveillance in the United States only when it can show probable cause that the target is a foreign power or its agent.” This will narrow the scope of FISA and “limit the universe of individuals whose communications may be captured under the foreign intelligence exception.”
In any event, the continuation of the current FISA structure allows for rampant abuse and bastardization of FISA. The ability for FISA to be used to spy on virtually anyone, foreign or not, is abhorrent and could lead to the disastrous use of the information obtained.