The Foreign Intelligence Surveillance Court, established in 1978 through the Foreign Intelligence Surveillance Act to oversee the process by which the federal government requests secret surveillance warrants, has become a rallying call for the Trump administration and some Republican lawmakers, who say the process is biased and needs to be reformed.
Calls for reform rang louder when a memo released by Republicans on the House Intelligence Committee alleged that intelligence officials in the Justice Department and FBI abused the system in how the federal government obtained a warrant to surveil ex-Trump campaign adviser Carter Page.
White House press secretary Sarah Sanders said Thursday that President Trump wants FISA to be reformed, and Attorney General Jeff Sessions said an independent inspector general will be reviewing the process to see if the agency has been using the process in a biased way in its Russia investigation.
But the process to obtain a warrant through FISC is one that is built to prevent such rampant bias.
“Given the extensive procedures in FISA and the number of people who have to be involved in a FISA wiretap, any political conspiracy would have to be very, very large,” David Kris, founder of Culper Partners and former assistant attorney general for the Justice Department’s National Security Division told the Washington Examiner.
So, how does the FISA application work?
The government must bring a package to the court, which is made up off 11 federal district judges appointed by the chief justice of the Supreme Court who rotate on a seven-year staggered basis.
The package is comprised of an affidavit from a senior FBI agent at headquarters in Washington that is added to information sent in from FBI agents in field divisions around the country; a legal document written by a career lawyer in NSD; a certification from the FBI director; and personal written approval from either the attorney general, deputy attorney general or head of NSD.
The application then goes to FISC, where it is rarely denied — usually due to the numerous parts and conversations that go into the final package.
The FISC received 1,752 applications in 2016, granted 1,378 orders, modified 339, denied in part 26 orders, and denied in full nine applications, according to court disclosures.
The FISA warrant application must show that there is probable cause the wiretap target — for example, a U.S. citizen or green card holder — is a foreign power or an agent of a foreign power acting in a manner that violates U.S. criminal laws.
“People don’t appreciate the levels of review a FISA application has to go through,” one former intelligence official told the Washington Examiner.
But, Liza Goitein of the Brennan Center for Justice’s Liberty and National Security Program, cautioned that no government program is ever perfect, and there could be cause for concern with FISA.
“I wouldn’t be in a rush to say that no deliberate violations have ever occurred, but there is no evidence on this point,” she told the Washington Examiner, noting that there has been a lot of reliance on “internal self policing.”
She added: “The very secrecy of the FISA process makes it somewhat more abuse prone, or at least prone to corner-cutting than the relatively open more processes in the criminal area.”
