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.
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.