What is FISA?
Congress enacted FISA in 1978 to regulate domestic surveillance for national-security investigations, as opposed to criminal investigations. FISA authorizes and regulates certain governmental electronic surveillance of communications for foreign intelligence purposes. Under FISA, the Foreign Intelligence Surveillance Court (FISC) was established to approve electronic surveillance for foreign intelligence purposes if there is probable cause to believe that the target of the electronic surveillance is a foreign power or an agent of a foreign power. Title I provides the framework for the electronic surveillance of persons within the United States and Title III provides the framework physical searches of premises or property within the United States. This is known as “traditional FISA.” Traditional FISA surveillance requires that there be probable cause to believe the proposed target is a foreign power or an agent of a foreign power and that the facility or place is – or is about to be – used by that target. Surveillance under traditional FISA requires formal approval from the FISC. This is an entirely one-sided process: there is nobody in the room representing the target of the surveillance to question the evidence brought before the FISC.
FISA from the Defense Perspective
A few years ago, Katie Recker and I represented a client in the first criminal Foreign Corrupt Practices Act proceeding in the Eastern District of Pennsylvania. We received a notice from the government of its intent to use FISA information – meaning information obtained and derived from surveillance pursuant to FISA. We sought to compel all applications and orders under FISA related to our client and to suppress all illegally-obtained information and the fruits derived from it. The thrust of our argument was that the government was using national security as a pretext to circumvent traditional warrant requirements in a case where the government was using the fruits of its FISA surveillance to prosecute alleged criminal conduct that had no relation to a foreign intelligence crime.
In response to our motion, the government invoked FISA procedures that allowed for an in camera and ex parte review by the district court. It filed two versions of its response – one, a classified memo for the court’s review (not available to the defense) and the other, a heavily redacted unclassified version of that classified memorandum reciting boilerplate legal standards and nothing specific about the surveillance of our client. The government also filed a declaration by then-Attorney General Eric Holder claiming that it would harm the national security of the United States to publicly disclose the government’s FISA-related materials.
After a hearing on the issue the Court asked the government to re-visit its determination that disclosure or an adversary hearing on the issue would harm the national security. AG Holder re-stated his view that any disclosure would harm national security.
We were never allowed to see the FISA applications or orders from the FISC, and our motion was denied. Our experience litigating under FISA was not unique – to my knowledge, no defense lawyer has ever been given access to such materials since FISA was enacted in 1978.
The Problems with the Carter Page FISA Application
The FBI first obtained court permission to wiretap Carter Page in October 2016, and the government obtained three extensions of that order in 2017. The Report found lapses in all four filings, finding 17 “significant errors or omissions” in the FISA applications. It also found that, “[a]lthough some of the factual misstatements and omissions we found in this review were arguably more significant than others, we believe that all of them taken together resulted in FISA applications that made it appear that the information supporting probable cause was stronger than was actually the case.” Some examples of the abuses:
- A low-level FBI lawyer altered an email to make it seem as if Page was not a CIA source, when in fact he was, and that fact might have cast his contacts with Russians in a different light;
- The FISA applications included a source characterization statement asserting that Christopher Steele’s prior reports had been “corroborated and used in criminal proceedings,” which overstated the significance of Steele’s past reports; and
- Omitted information relevant to the reliability of a key source for the Steele dossier; and
- Omitted the fact that that a source for the Steele dossier had raised serious doubts about Mr. Steele’s material, misleading the FISC by stating only that it had found the source to be cooperative and credible and omitting the doubts raised by the source.
In sum, the Report found that “FBI personnel fell far short of the requirement in FBI policy that they ensure that all factual statements in a FISA application are ‘scrupulously accurate.’ We identified multiple instances in which factual assertions relied upon in the first FISA application were inaccurate, incomplete, or unsupported by appropriate documentation, based upon information the FBI had in its possession at the time the application was filed.”
As I discussed above, I have had a few occasions to litigate FISA issues, and as counsel for defendants it can be a frustrating exercise to challenge the government’s collection and use of foreign surveillance information in a criminal prosecution. Ex Parte filings are made by the government and reviewed en camera by the Court with no opportunity for defense participation. The government has fought hard to keep outsiders from seeing what goes into its FISA applications, yet the Report raises some important issues with the process and begs the question: what happens with respect to FISA applications in more run-of-the-mill cases? Everyone involved in the Page surveillance knew that what they were working on was high profile and likely to be scrutinized more closely. What happens when the FBI knows that no one is looking?
The Report calls into question the legitimacy of the FISA system as it now exists. The series of problems brought to light with the Carter Page surveillance applications demonstrates that the government’s FISA approval process, and the secrecy surrounding it, provides too much opportunity for misuse. Hopefully the abuses uncovered by the Report will lead to fundamental reform and an overhaul of this one-sided process. In the meantime, the current revelations about abuse could give counsel a new avenue and opportunity to challenge the FISA surveillance of their clients.