The Foreign Intelligence Surveillance Act and FISA Court

FISA Court

Back in March 2017, Donald Trump released tweets accusing President Obama of wiretapping his phones. The ensuing controversy brought the United States Foreign Intelligence Surveillance Court (otherwise known as FISC or FISA court) into the public spotlight. The FISA court is something that flies under the public’s radar – and this is somewhat intentional.

So just what is the FISA court? Why was it established? And what does it have to do with Donald Trump’s wiretapping accusations?

What is the FISA court?

The FISA court was established in 1978 after the Foreign Intelligence Surveillance Act was passed. Back in 1978, the Cold War was in full swing and many feared that Soviet spies had infiltrated the deepest and darkest recesses of the US government. This act was born out of a long investigation into whether President Nixon has overstepped his bounds when investigating domestic political activist groups. The Foreign Intelligence Surveillance Act essentially spells out the extent to which the US government can engage in surveillance of individuals or groups that may have ties to foreign entities.

The act itself allows the President, with the authorization and agreement of the Attorney General, to engage in electronic surveillance of an individual without a court order as long as that surveillance is only to gain foreign intelligence. The act also allows the physical search of an entity’s belongings and records if they’re used exclusively by a foreign power. One of the most weighty (and likely most controversial) stipulations of the act is the establishment of the United States Foreign Intelligence Surveillance Court.

The United States Foreign Intelligence Surveillance Court is a court in which the US government can get lawful warrants to conduct surveillance of any suspected foreign intelligence agents. The FISA court’s hearings and proceedings are closed to the public, though occasionally its rulings are released to the public. This is drastically different from the rest of the US court system, which is open to the public in almost every way. The secrecy of the court and its practice of allowing mass surveillance has lead to widespread criticism.

How does the FISA court work? Can the president alone authorize a wiretap?

The primary purpose of the FISA court is to provide the US government with surveillance warrants. When the court was first established in 1978, this was meant to target groups that were suspected or accused of having deals with the Soviets. After the fall of the USSR, the purpose of the court transformed into providing surveillance warrants for individuals or groups suspected of terrorism or having links with foreign terrorist groups.

In order to get a surveillance warrant from the FISA court, a domestic investigative agency (i.e. the FBI or CIA) can present an application to the presiding judge. The judge reviews the application, and then issues the warrant if they decide that there is probable cause. Just to give you an idea about how many warrants are issued versus being rejected- from 1978 to 2013, 35,529 warrant requests were submitted. Out of that 35,529 requests, 35,434 warrants were issued immediately. Only 12 requests were outright rejected, and the remaining 53 were issued when resubmitted with modifications.

This absurdly low rejection rate (approximately 0.03%) has caused many people – even high-ranking individuals associated with US intelligence agencies – to accuse the FISA court of being a kind of “kangaroo court” that essentially rubber-stamps anything the government requests. Since all hearings and proceedings are confidential, it is difficult to know exactly what constitutes “probable cause” in this court to justify surveillance. The court’s judges are appointed solely by the Chief Justice of the Supreme court for a 7 year term. About 11 judges are appointed to the FISA court at any one time. A judge must be available to go over and issue a warrant nearly 24/7, even though the Foreign Intelligence Surveillance Act allows warrant-less surveillance for a one-week period if the Attorney General deems it an emergency (after a week, a FISA court warrant must be obtained).

What has the FISA court done?

It is hard to determine exactly what FISA court has done, since their hearings are secret and their proceedings are largely confidential. However, certain warrants have leaked to the public and they give us a vague idea of the immense amount of reach and power that this court has. In 2013, Edward Snowden leaked a FISA court-issued warrant to UK newspaper ‘The Guardian.’ This warrant revealed that the FISA court ordered Verizon Wireless to provide the US government with telephone metadata – call records, location data, etc. This stirred up a huge amount of controversy and backlash against the US government’s actions, especially the role of the FISA court in the fight against terrorism. The American Civil Liberties Union asked a federal court in New York to end the program because of the Constitution’s guarantee of privacy but a US government lawyer responded that they had no reason to bring a case to court. The lawyer stated that the program is constitutional, that it does not violate the 4th amendment (guaranteeing privacy), and that the ACLU cannot prove that the collection of this information has harmed any of their members.

More recently, people looked to the court for evidence as to whether Obama did or did not order Donald Trump’s phones to be wiretapped. A BBC journalist published an article in January 2017 saying that a joint task force (including representatives from the FBI, Department of Justice, the CIA, and NSA) was formed to determine credibility of an anonymous 2016 tip about money from the Kremlin directly funding a US presidential campaign. According to the article, the Department of Justice submitted an application for a surveillance warrant to see electronic bank transactions from two Russian banks. The application was initially denied but eventually granted in October of 2016 – two weeks shy of the presidential election – once it had been significantly modified. This story morphed into the current accusation against Obama, wherein supposedly he personally advocated for the surveillance of Trump. Given the current furor over Trump’s twitter accusations, intelligence specialists warn that by levying such accusations Trump may come to find out that it wasn’t Obama who suspected him of having foreign ties. Instead, an investigation may reveal that  a host of other governmental investigative bodies submitted the application for the warrant.

The FISA court is has recently been in the spotlight due to its connection with the Trump wiretapping allegations, but the court’s actions go far beyond potentially wiretapping presidential candidates. Usually when the word “secret” and “government” is in the same sentence, it involves some kind of conspiracy theorizing. In this case, the proceedings and exact actions of the FISA court are indeed secret, though bits and pieces of information about the warrants issued continue to trickle out.