The FISA Fiasco’s Silver Lining

Last Friday, the Justice Department released the 2016 request to the Foreign Intelligence Surveillance Court to monitor the former Trump campaign aide Carter Page, an extraordinary development in at least four different ways. Three of them should be reassuring and one is concerning, but all four taken together offer an unexpected reason for hope.

Although President Donald Trump and his allies claimed vindication for their argument that the federal probe into the Trump campaign’s Russia ties was fatally biased by the inclusion of the opposition-research dossier compiled by the former MI6 agent Christopher Steele in the surveillance request, the application shows that Steele’s partisan leanings were disclosed to the court. What we can see from the redacted application suggests that the request was well-founded. And now that a Foreign Intelligence Surveillance Act (FISA) application has finally been disclosed to the public, civil-liberties advocates should be reassured by the knowledge that government-surveillance requests are carefully crafted, not haphazard documents rubber-stamped by compliant judges.

The full text of the Nunes memo

First, what’s unprecedented.

Very few people have ever seen a FISA application before—although as the senior counsel for the minority on the Senate Intelligence Committee during the Russia investigation, I was one of them. Among other things, FISA permits the government to request approval to carry out electronic surveillance of U.S. persons if the government can show there is probable cause to believe the individual is acting as an agent of a foreign power. Because FISA is a key tool in intelligence and counterintelligence investigations, the applications are always chock-full of classified national-security information.

While the government has made great strides in increasing transparency relating to FISA in recent years, this kind of application inherently deals with highly sensitive investigations: the possibility that a person might be involved in activities such as spying for a foreign government, planning to sabotage the United States, or plotting terrorist attacks. In addition, the applications are often based entirely or in part on classified information, such as tips from allied nations or morsels of intelligence gleaned by the U.S. intelligence community. Consequently, the only people who have seen this kind of application are the very small circle of cleared government lawyers and intelligence analysts who prepare them, the Foreign Intelligence Surveillance Court and its staff, and the equally small number of other people in the national-security community who meet the requirements for access: They’ve been cleared for the information, and they have a need to know it in order to carry out their lawfully authorized government functions.

The applications appear to be well-supported. The 412 pages of documents include the initial application and three renewals, each designed to extend the surveillance beyond the 90-day limit that protects U.S. persons against prolonged surveillance without court oversight or intervention.

There are a number of redactions, to be sure. But there is also a great deal of information in the unclassified text that points to the way in which the government made its argument: a section on the FBI’s knowledge of Russian-intelligence tradecraft generally; its awareness of Russian election interference writ large; a description of the Russian government’s attempts to influence the 2016 U.S. presidential election specifically; and a description of the FBI’s assertions regarding Page’s interactions with Russian government officials and Russian intelligence officers. Like police seeking search warrants, the government must only provide probable cause, rather than meet the higher standard of proof beyond a reasonable doubt required for criminal convictions. The facts asserted in the un-redacted portions of the documents all support the conclusion reached by four separate FISC judges: that the government had indeed established probable cause.

The most controversial source of information was accurately described to the court. Back in February 2018, a war of dueling memos erupted in the House Permanent Select Committee on Intelligence. The HPSCI majority, led by Representative Devin Nunes (who was supposed to have recused himself from all things Russia), issued a memo alleging that the FISA process was abused in this case because the FISC had never been told that Steele’s now-famous dossier of allegations—published a year earlier by BuzzFeed, and some of which referred to Page—had been paid for as opposition research for the 2016 presidential campaign. The released documents show that the FBI did indeed tell the FISC about this potential bias in lengthy footnotes in all four applications that made clear that the work of “Source #1” (Steele) had been commissioned for the likely purpose of discrediting the presidential campaign of “Candidate #1.”

The later applications also explain that the FBI severed its relationship with Steele because, after giving his information to the FBI, he had also talked with the press. However, per the applications, “notwithstanding Source #1’s reason for conducting the research … based on Source #1’s previous history of reporting to the FBI, whereby Source #1 provided reliable information to the FBI, the FBI believes Source #1’s information herein to be credible.”

In other words, contrary to the assertions in the Nunes memo, the FISC was kept fully informed in each application of all of the relevant context about the source, its potential bias, its reliability, and the state of the source’s relationship with the FBI.

The Democratic rebuttal to the Nunes memo

These documents were declassified because the White House opened the door. In January and February of 2018, when the HPSCI majority and minority were issuing dueling memos, the White House took sides: White House Counsel Don McGahn wrote a letter explaining the decision to declassify the facts alleged in the memo. The Department of Justice and the FBI both registered strong objections to the release, arguing that it would be unprecedented and harm national security. Those pleas fell on deaf ears, and the Nunes memo was set loose, presumably in the belief that there would be some political advantage to be gained by fostering a narrative in which the FISA process had been abused, the FBI was corrupt, and the previous administration had been guilty of improperly targeting their political enemies.  

So where does the hope come in?

The strange and contentious swirl of Washington politics led to an unexpected step forward for transparency. It’s unfortunate that this peculiar, fraught case is the one that set the precedent of declassifying large parts of a Title I FISA application. But some larger good—unrelated in any way to the Russia investigations—may yet come out of the release of these documents. Critics of FISA have for years been concerned that the classified nature of the court’s proceedings made it difficult for outside groups to assess whether the government and FISC judges behave appropriately, lawfully, or in good faith. Whether out of genuine concern or a sense that it makes for good rhetoric, a number of critics have charged that, since the vast majority of FISC filings are approved, the FISC must amount to little more than a rubber stamp. The release of these documents—demonstrating the scope and scale of a FISA application— should help reassure at least some critics that that is not the case.

In other words, these applications should help put to rest fear that the process of surveilling U.S. persons could be as simple as filling out some superficial government form for a perfunctory review.

Devin Nunes’s actions as the House Intelligence Committee chair have brought a disheartening degree of partisan rancor into what should be a bipartisan oversight process. He’s discredited the committee and undermined the intelligence community. In this case, however, instead of backfiring, his actions may have had an unexpected positive effect in providing greater transparency into the FISA process.