A pending report on the government surveillance of Trump campaign adviser Carter Page may shed light on a vital question: Has the Foreign Intelligence Surveillance Court become a tool used by government to abuse the rights of both guilty and innocent in the name of national security?
The Foreign Intelligence Surveillance Act was enacted in 1978 as a post-Watergate reform to give American citizens under national security surveillance some of the protections afforded suspects in criminal investigations. The FISA court, also called the FISC, considers orders for surveillance in a manner that emulates the issuing of warrants. But critics call the court a rubber-stamp body, pointing to its history of approving about 98% of the roughly 1,600 to 1,700 applications it receives each year.
Justice Department Inspector General Michael Horowitz informed congressional leaders by letter last month that he had completed a draft of his report on the Page order, which was approved in 2016 and renewed three times in 2017. With its release expected this month once redactions are completed, the report is expected at the very least to cite weaknesses in the applications.
“I can report categorically that the inspector general has found that all four FISA warrants were illegal,” Joe diGenova, a former U.S. attorney and vocal Republican, said recently in an interview with Washington radio station WMAL. “They were based on false information supplied to the FISA Court."
A highly redacted copy of the first application for FISA surveillance orders on Page made public last year appears to show multiple irregularities. That October 2016 application gave great weight to information in the “Steele dossier” – a collection of memos alleging ties between the Trump campaign and Russia -- without clearly indicating that it was an opposition research document paid for by Hillary Clinton’s presidential campaign and the Democratic National Committee. That application also suggested that the dossier’s claims had been independently verified by referring to a 2016 Yahoo News article that, it did not inform the court, had been based on information leaked from the dossier.
Presiding Judge Rosemary Collyer approved the first application. And the FBI continued to use the dossier in its three FISA application renewals, approved by three different judges on the court, even though former FBI Director James B. Comey had described its allegations as “salacious and unverified.” It included claims that Trump had once paid hookers to urinate on a Moscow hotel bed once used by President Obama and that Page had been promised up to 19% of the Russian oil giant Rosneft – which would be worth billions – were he to convince Trump, if elected president, to remove Western sanctions against Russia.
Nevertheless, the warrant provided the government with far-ranging authority to spy on Page. Intelligence gathered from a foreign intelligence wiretap differs sharply from what is picked up through a domestic criminal surveillance warrant under Title III of the Omnibus Crime Control and Safe Streets Act of 1968.
FISA orders authorize constant collection with later sorting of evidence, while a Title III warrant is restricted to an “ears on/ears off” pattern in which only material of potential relevance to a criminal case gets collected. FISA orders allow the government to cast a wide net, empowering agents to collect communications from anyone in contact with the target as well as people communicating with those contacts.
FISA orders also permit the government to use "inadvertently acquired" domestic communications that include usable intelligence, information on criminal activity, threats, or encrypted data. Data collected on American citizens from any “U.S.-based machine” – a vague term that encompasses a broad range of electronic devices – can be retained for or up to five years. Because information gathered under FISA orders rarely gets used in a criminal case, the subject of the surveillance almost never knows it took place.
The window Horowitz is expected to open onto the secretive court raises a question that goes well beyond conservative circles and Trump partisans. What if the irregularities in the applications for surveillance of Carter Page were not so irregular, and U.S. citizens are routinely being wiretapped on flimsy national security pretexts?
Critics of the Trump-Russia investigation are not the only ones raising questions about the process by which the 11-judge court approves national security surveillance of U.S. citizens.
The American Civil Liberties Union, New York University’s Brennan Center for Justice, and other civil rights advocates call out the FISA Court for its secretive rulings. They argue that it is too cozy with government authorities and that its procedures, according to a Brennan Center report, “resemble neither the granting of warrants nor the ordinary adversarial process for reviewing a challenge to the constitutionality of an agency’s program.”
Although thousands of warrants are approved each year, the public becomes aware of them only “10 or 20 times a year [when] the Justice Department may file notice in a criminal case that direct or indirect FISA material is being used,” Patrick Toomey, a senior staff attorney at the ACLU, told RealClearInvestigations. “Even when the government does disclose it, the defendant never gets to see the FISA application, never gets a clear view of what the government used: electronic, search of a house, search of a hard drive. There is very little visibility into what factual showing the government made in obtaining the order. The defendant is deprived of access to the application that was submitted to the F.I.S.A. court.”
The late former FISA judge James Robertson condemned “mission creep” wherein Justice Department lawyers as well as staff of the FBI, CIA, and National Security Agency have come to rely on FISA orders for approval of surveillance that would be more properly approved through Title III criminal warrants, or not approved at all.
In building their case against two Detroit gas station attendants charged in 2018 with running a cash-for-food-stamps ring, prosecutors revealed last year that they had gathered evidence through electronic surveillance approved under FISA. The case has led to one guilty plea, but the Council on American-Islamic Relations and the lawyer for remaining defendant Nassif Sami Daher are demanding the government state the reason for the order, pointing out that the scam involved only fraud of the U.S. Department of Agriculture's Supplemental Nutrition Assistance Program, and that Daher was not charged with national security-related crimes.
FISA judges are appointed by the chief justice of the United States to staggered seven-year terms. At present the court seats two women and nine men with an average age of 67; the oldest, James Parker Jones of the Western District of Virginia, is 79; the youngest, James Emanuel Boasberg of the District of Columbia, is 56. Four live in Washington, D.C., or Virginia, with others coming from Florida, Mississippi, New Jersey, Oregon, Kentucky, Maine, and Illinois.
Most, according to attorneys familiar with the court, continue to work in their home districts. But once every 11 weeks, each of the 11 judges serves a one-week stint as the sole judge on the FISA Court, which occupies an annex in Washington’s E. Barrett Prettyman U.S. Courthouse. The court has a clerk, and its presiding judge has duties similar to those of the chief judge of a district court.
In 2013, then-Presiding Judge Reggie Walton wrote a description of court procedures for the U.S. Senate. “Upon the Court's receipt of a proposed application for an order under FISA, a member of the Court's legal staff reviews the application and evaluates whether it meets the legal requirements under the statute,” he said. “As part of this evaluation, a Court attorney will often have one or more telephone conversations with the government to seek additional information and/or raise concerns about the application. A Court attorney then prepares a written analysis of the application for the duty judge, which includes an identification of any weaknesses, flaws, or other concerns.”
Walton’s letter indicated that most discussion of applications for surveillance orders occurs between staff attorneys and attorneys from the Justice Department’s National Security Division. Court staff and U.S. attorneys are in daily secure telephone contact, and many decisions are made through written submissions only, without a hearing.
The workload of judges on the Foreign Intelligence Surveillance Court appears to be heavy.
In 2016, a typical recent year, the court ruled on 1,752 applications -- an average of almost 34 per week. A letter to Congress from the Administrative Office of the United States Court reported that 1,378 of those orders were granted without modifications, 339 were modified, 26 were denied in part, and only nine applications were denied in full.
“As you saw with the Carter Page stuff, these are lengthy applications,” said Toomey – the first Page application was 66 pages, the last was 101 pages. “You don’t see written submissions in a formal hearing, where there is a court reporter present and everything’s recorded. There is an informality that enters into both sides of the process. The court gets a draft copy or a read copy of the application. And my understanding is that there’s often an extensive informal back-and-forth between clerks and U.S. attorneys.”
This close coordination between government attorneys and the judges charged with overseeing them is one of the reasons the workings of the court need to become more transparent, Toomey said. He also pointed to new communication technologies and new types of surveillance including bulk collection and warrantless collection of Americans’ international communications.
Several attorneys who know the court, speaking on and off the record for this article, downplayed many of these concerns.
“The court itself was a result of a policy judgment Congress made: Let’s leave it to the judges,” David Kris, founder of Culper Partners consulting firm, told RealClearInvestigations.
Kris, a former assistant U.S. attorney general for the National Security Division, noted that prior to the creation of the court in 1978, national security intelligence gathering on U.S. citizens was not subject to any judicial scrutiny at all.
“The prior practice was just to do this surveillance,” he said. “Whether you see the FISA court as an excessive limit or inadequate depends on where you start.”
The court, which now hosts a generally informative web page, has become more open and more independent from the Department of Justice since the middle of last decade. Kris noted that the court used to meet in the Department of Justice’s own building, before moving in 2009 to its current secure location in the Prettyman courthouse. Other experts point out that the court’s low rate of application denials is not substantially different from that of Title III courts, where judges also work informally with police officers and prosecutors to tailor acceptable warrant applications.
"When the government wants a search warrant, it makes an ex parte application to the judge – there’s nobody on the other side even in an ordinary criminal case," said American University law professor Jennifer Daskal, a former counsel to the assistant attorney general for national security at the Department of Justice. "That makes sense – otherwise the government would be tipping off the target of the investigation. The judge then reviews the application to make sure there is sufficient evidence for a warrant."
No FISA attorneys considered the workload of judges to be excessive. Robertson, who quit his seat on the court in 2005 and became a prominent critic, did not list overwork among his objections.
“The majority of applications submitted to the Court are handled on a seven-day cycle, by a judge sitting on a weekly duty schedule,” Walton wrote in his 2013 Senate letter. “Applications that are novel or more complex are sometimes handled on a longer time-line, usually require additional briefing, and are assigned by the Presiding Judge based on judges' availability.”
Walton took special aim at charges that the FISA Court approves too many applications. "The annual statistics," he wrote, "[which are] frequently cited in press reports as a suggestion that the Court's approval rate of applications is over 99% -- reflect only the number of final applications submitted to and acted on by the Court. These statistics do not reflect the fact that many applications are altered prior to final submission or even withheld from final submission entirely, often after an indication that a judge would not approve them."
This leaves open the question of whether the Carter Page application was uniquely flawed, a result of anti-Trump groupthink in the Justice Department, or perhaps a fully legitimate application that will pass the inspector general’s scrutiny.
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